Florida Drag Show Ban for Minors Meets Wary Eleventh Circuit

Florida’s restrictions on minors attending drag show performances were picked apart by the Eleventh Circuit Tuesday in an en banc hearing that highlighted the difficulty of drawing the line for “lewd” speech.

The court, which leans conservative, opted to rehear a challenge after Florida’s law was blocked by a three-judge panel last May. Still, most judges zeroed in on a sticking point for Florida’s law: how to decide whether a show is inappropriate for children at different ages.

“Can you provide us any guidance whatsoever?” Judge Robin S. Rosenbaum asked Florida Solicitor General David Dewhirst. “Tell us how to do it. Can you tell us how to do it?”

The state didn’t give any specific age-based criteria, but Dewhirst said the state has a strong interest in protecting minors and lewd acts were taking place in venues other than Hamburger Mary’s—the family-friendly, drag-themed restaurant chain that brought the challenge.

Judges Andrew L. Brasher and Kevin C. Newsom raised concerns that there’s no exception to a venue’s knowledge of a child’s age and responsibility to cater the material for the lowest age in attendance.

Thus, a police officer, prosecutor, or jury would have to create a standard for what conduct in a drag show is unlawful for a minor of a given age to see, but a venue—or private party at someone’s residence—wouldn’t know this standard in advance and wouldn’t be able to verify many children’s ages because they lack ID.

“It seems a lot to ask of the proprietor or bouncer to know that based on the content of tonight’s show the age cutoff is eight. The cop might disagree, the prosecutor might disagree, and what do we do about precocious eight-year-olds?” Newsom said.

Creating a Standard

Dewhirst said minors were in attendance at shows put on by other venues where performers simulated sexually explicit conduct.

He agreed with the judges that finding standards is a nuanced task but pushed back on their concerns, saying this is the framework states are presented with when regulating content that’s inappropriate for minors.

The US Supreme Court last year, in case involving internet pornography, strengthened states’ ability to enforce minor-protecting speech restrictions. Furthermore, local standards—not national standards—are required to meet the constitutional protections of speakers under past high court precedent, meaning local law enforcement and jurors are the right people to make these calls.

Florida’s law “imposes a modest restriction on children witnessing sexually-explicit events,” Dewhirst said. Hamburger Mary’s doesn’t have a claim, he added, because the business says none of its shows allowing minors were inappropriate. He pointed to Disney-themed drag shows put on by venues specifically catering to families with young children as an example of proprietors knowing how to make content appropriate for young audiences.

The restaurant’s attorney, Melissa Stewartof Sauder Schelkopf, argued that was a matter of marketing instead of divining a standard that wouldn’t cross Florida’s law. After the law passed and before it was blocked, Hamburger Mary’s canceled its family drag brunches out of fear it would be fined or staff could be arrested.

Judge Barbara Lagoa said the restrictions aren’t “that different from dealing with alcohol establishments based on fake ID.”

Stewart said Florida’s fake-ID law has an exemption for restaurants’ reasonable belief, while this statute has none.

Hamburger Mary’s “could make every show 18+, make it G-rated, check IDs at the door, and it still wouldn’t be certain it wasn’t violating the law,” Stewart said.

The case is HM FLorida-ORL, LLC v. Sec. of the Florida Dep’t of Bus., 11th Cir. en banc, No. 23-12160, oral argument held 6/2/26.