Describing the law as “substantially overbroad,” a federal appeals court Tuesday upheld a preliminary injunction blocking a 2023 Florida law aimed at preventing children from attending drag shows.
A panel of the 11th U.S. Circuit Court of Appeals, in a 2-1 decision, backed the Central Florida venue Hamburger Mary’s in a First Amendment challenge to the law. The state appealed in 2023 after U.S. District Judge Gregory Presnell issued a preliminary injunction.
Tuesday’s majority opinion said that “by providing only vague guidance as to which performances it prohibits, the act (the law) wields a shotgun when the First Amendment allows a scalpel at most.”
“The Constitution demands specificity when the state restricts speech,” said the 81-page majority opinion, written by Judge Robin Rosenbaum and joined by Judge Nancy Abudu. “Requiring clarity in speech regulations shields us from the whims of government censors. And the need for clarity is especially strong when the government takes the legally potent step of labeling speech ‘obscene.’ An ‘I know it when I see it’ test would unconstitutionally empower those who would limit speech to arbitrarily enforce the law. But the First Amendment empowers speakers instead. Yet Florida’s Senate Bill 1438 (the law) takes an ‘I know it when I see it’ approach to regulating expression.”
But Judge Gerald Tjoflat, in a 45-page dissent, said the majority “reads the statute in the broadest possible way, maximizes constitutional conflict and strikes the law down wholesale.” He argued that the federal court should have sent the case to the Florida Supreme Court for help in interpreting the law — a step known as “certifying” a question to the state court.
“Instead, the majority sidesteps the very tools our system provides — tools designed to respect state authority, foster comity, and avoid unnecessary constitutional rulings,” Tjoflat wrote. “By casting aside those safeguards, today’s decision stretches this court beyond its proper role and departs from the humility and restraint that federal courts owe when state law is in question.”
The law, dubbed by sponsors the “Protection of Children” bill, sought to prevent venues from admitting children to adult live performances. It defines adult live performances as “any show, exhibition, or other presentation that is performed in front of a live audience, which, in whole or in part, depicts or simulates nudity, sexual conduct, sexual excitement or specific sexual activities, … lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts.”
It would allow regulators to suspend or revoke licenses of restaurants, bars and other venues that violate the law. Also, it would prohibit local governments from issuing public permits for events that could expose children to the targeted behavior.
While the law does not specifically mention drag shows, it came after Gov. Ron DeSantis’administration cracked down on venues in South Florida and Central Florida where children attended drag shows. It also came amid a series of controversial laws passed by Republicans in Florida and other states about transgender-related issues.
Tuesday’s majority opinion focused, in part, on the use of the words “lewd conduct” in the law. It said the term is overbroad and that Rosenbaum and Abudu “understand the act’s prohibition on depictions of lewd conduct to reach speech that is constitutionally protected, even as to minors.”
“The result is that venues like Hamburger Mary’s are prone to restrict minors from consuming speech that they are within their constitutional rights to access,” the majority opinion said. “Not only that, but the act’s sweep risks indirectly squelching adults’ access to nonobscene speech.”
Tjoflat, however, wrote that the law’s “enumeration of terms is not perfectly sorted by specificity, but its ordering still lends credence to the idea that ‘lewd conduct’ was intended merely as a catchall phrase, rather than a significant expansion of the statute’s scope.”
“Simply put, the question before us is not whether (the law) is stylishly and elegantly written,” Tjoflat wrote. “The question is whether the statute violates the Constitution, and our review requires us to engage with the statutory text, as written, in good faith and with the presumption that the Legislature did not intend to infringe on constitutional rights. By applying the aforementioned principles and reading the statute harmoniously, we can and should conclude that the statute reaches only speech that would be considered obscene (under a U.S. Supreme Court precedent).”
Hamburger Mary’s was located in Orlando at the time it filed the lawsuit but later announced plans to move to Kissimmee. It said in 2023 that it had run “family friendly” drag shows for 15 years.
Tuesday’s majority opinion said the fact that Hamburger Mary’s left the Orlando location after filing the challenge did not make the lawsuit moot. It said in “cases involving businesses that pause operations but may resume them, courts take a common-sense approach to evaluating mootness.”
–Jim Saunders, News Service of Florida
Bethere says
You people are sick!
Nina says
Who doesn’t realize that its just wrong to expose our children to sexually explicit entertainment? Have we as a society gone crazy? We pervertedly call it (adult entertainment) but its beyond that when school curiculum doesn’t exclude this kind of schooling. I feel so sorry for kids today who are told they can choose to be a different sex if they want.
Skibum says
Well, after reading the first couple of people to comment on this article… from Bethere and Nina… I can only presume that neither of them have ever even been to Hamburger Mary’s restaurant for food and a comedic drag show. They undoubtably believe a drag show is really some sex depraved male strippers doing sexually explicit, x-rated gyrations in front of an audience of kindergarten children… LOL! How ridiculous, but totally expected from ignorant people who don’t know what in the world they are talking about. Drag shows are not really my thing, although I have seen quite a few in my lifetime when friends encouraged me to go along. So for Bethere and Nina, I can tell you from first hand knowledge after having been in attendance at drag shows in Orlando, Jacksonville, Atlanta, Las Vegas, Seattle and Los Angeles over several decades, I have never once witnessed any sexually explicit conduct by drag performers that would merit even an R-rating. Teenagers see and hear much, much worse going to the movie theater to see the latest, greatest movie release! At drag shows, unless it is at an adult only venue, the performers know and expect a more family friendly atmosphere, so one can expect drag performers to be doing mild stand-up comedy interlaced maybe with some sexual innuendoes that you might expect to hear on one of the late night talk shows, but more than likely it will be performers in drag singing or lip sinching to songs. Nothing gross, but of course people have to complain about what they no nothing about. The court got it right. For those who don’t like that sort of thing, then DON’T GO! But to push our freedoms and the U.S. Constitution aside in order to prevent others from enjoying entertainment that some people don’t like, THAT is unconstitutional and exactly why we need courts and judges who understand constitutional law or all of us would be in jeopardy of losing our protected freedoms and instead having our every movements and decisions made by a narrow minded group of authoritarians who think they can tell everyone else what to do and how to think.
Nephew Of Uncle Sam says
@Skibum says
AMEN! Couldn’t have said it better.
Samuel L. Bronkowitz says
You guys are fine taking kids to churches where they’re molested and yet you have issues with kids going to events like this where if anything, kids are understood and protected because of the experiences that people that attend them have had themselves *as kids*. I guess it’s totally ok to be a pedophile as long as you’re a pastor.
Kennan says
Skibum! Thank you.
The first two commenters…. although your heart is in the right place, please get out of the Fox News echo chamber.
Laurel says
Skibum: I’m with you on this one! I have absolutely no doubt that Nina and Bethere have never been there. They simply default to a lack of knowledge.
Deborah Coffey says
Good! The hypocrites in Tallahassee think “parental rights” extend to private schooling with vouchers, but completely disrespect my rights as a parent to take kids to a drag show.
kola says
So what is the purpose of taking children to see “men” dressed as women? So comical! We know that “they” can’t reproduce so they have to recruit.
Pierre Tristam says
Recruit for what exactly? An army of kindness? Humor? The performing arts? What a disaster that would be in our culture where cruelty is glorified and diversity vilified.
Laurel says
“”We know “they” can’t reproduce so they have to recruit.””
WTF? How do people come up with this shit? What a strange, little bubble they live in.
Skibum says
Kola, millions and millions of American parents have laughed along with their YOUNG children while watching the hilarious antics of men dressed as women. Have you never seen any popular Hollywood films like “The Birdcage”, “Mrs. Doubtfire”, “Tootsie” or hundreds of others where men dressed up as women for comedic laughs??? If you are one of those who have, and yet could not keep a straight face (pun intended), congratulations… YOU too were in the audience for drag performances. If not, WHAT IN THE HELL IS WRONG WITH YOU!? Dame Edna, one of the most iconic drag female impersonator comedians in the UK has performed and charmed practically that entire country, including performing for King Charles, Queen Elizabeth and the entire royal family for decades. Are you actually so ignorant to somehow conjure up a ridiculously asinine belief that men dressed up as women to perform as comedians, singers, etc. are really trying to “recruit” children into some perverse sexual activities??? YOU may need to make an appointment to see a mental health professional… SOON!
Sherry says
Thank you Pierre, Laurel, Skibum and all others who do not perversely speak about things for which they are completely ignorant. How “sick” is it that they speak about “recruiting” people into what? Humor? Just who is the pervert here?