Florida Drag-Show Ban Blocked by Appeals Court

ATLANTA — On May 13, a federal appeals court upheld an injunction blocking Florida’s drag-show law, finding that it likely violates the First Amendment. The ruling by the 11th U.S. Circuit Court of Appeals means that the state cannot enforce the law while the case continues.

The 2-1 decision supports a lower court’s ruling that said the law is too vague and overly broad. It returns the case to the Middle District of Florida for further proceedings.

Law Targeted “Adult Live Performances”

Signed by Gov. Ron DeSantis in May 2023, the law does not specifically mention drag shows but bans children from attending “adult live performances.” Businesses that host such shows risk losing their liquor licenses and can be fined $5,000 for a first offense and $10,000 for later violations. Individual violators face up to a year in jail and a $1,000 fine.

The law leaves enforcement up to the Florida Department of Business and Professional Regulation (FDBPR), which critics argue gives the state too much power to decide what counts as inappropriate content.

Hamburger Mary’s Challenges the Law

The lawsuit was filed by Hamburger Mary’s, a drag-themed restaurant in Orlando known for hosting “family-friendly” drag brunches on Sundays. The business claimed the law hurt its reputation and caused a 20% drop in profits due to customer confusion and fear.

Attorney Melissa Stewart, representing the restaurant, said the law is vague and punishes speech without clear definitions. “Hamburger Mary’s does not think that their performances are inappropriate for children,” Stewart said. “The problem is that Hamburger Mary’s has every reason to fear that the state of Florida thinks that their drag performances are lewd for children.”

She argued that the law fails to define terms like “lewd conduct,” leaving performers and venues unsure whether they are breaking the law.

Court Finds Law Overreaching

Judge Robin Rosenbaum, writing for the majority, said the law gives the state too much freedom to interpret what is “lewd.” She warned that such a loose standard allows government officials to censor speech they don’t like.

“Florida’s Senate Bill 1438 takes an ‘I know it when I see it’ approach to regulating expression,” Rosenbaum wrote. “But by providing only vague guidance… the Act wields a shotgun when the First Amendment allows a scalpel at most.”

The court agreed that Hamburger Mary’s concerns were reasonable, noting that even performances without nudity could be targeted if they included men in dresses or drag performers using prosthetic breasts.

State Defends Law, May Appeal

Brian Wright, a spokesman for Gov. DeSantis, criticized the court’s decision. “No one has a constitutional right to perform sexual routines in front of little kids,” Wright said. He added that the state would pursue further action to overturn the ruling.

The state has not said whether it will ask the full 11th Circuit or the U.S. Supreme Court to review the decision. In November 2023, the Supreme Court declined to intervene on an emergency basis but left open the possibility of future review.

Several other Republican-led states have passed similar laws restricting drag performances. Legal experts say the Florida case could influence how courts view such laws in the future, especially when they affect protected speech.