Florida’s Drag Show Ban for Minors Blocked by Eleventh Circuit

Florida’s prohibition on minors attending “lewd” events without nudity, such as drag-shows at restaurants, was jettisoned by US Court of Appeals for the Eleventh Circuit Tuesday.

The decision is a win for free speech claims from left-leaning groups and pro-LGBTQ+ businesses like Hamburger Mary’s, which sued claiming Florida’s law violated the First Amendment. It’s also a loss for conservative states, with the ruling the law’s terms of “lascivious conduct” and “exposure” were being used too broadly and regulating too much speech.

By “providing only vague guidance as to which performances it prohibits, the Act wields a shotgun when the First Amendment allows a scalpel at most, said Judge Robin S. Rosenbaum, writing for the court’s majority. “And Florida’s history of arbitrarily enforcing other, similar laws against performances that are far from obscene only deepens our concerns.”

Questions around how to apply the law, and at what age to enforce the law forced the court to rule against the state, the three-judge panel said. The state, represented by Florida Solicitor General Henry Whitaker at oral argument last October, argued that even if the terms of the law were unclear, surely sexual dancing and use of prosthetic breasts and genitals in some drag shows would qualify as “lewd” behavior the state could regulate for minors.

Despite reasonable state concerns over minors’ attendance at such shows, the law was too vague and didn’t set tight enough definitions to meet First Amendment standards.

The majority understands “the Act’s prohibition on depictions of lewd conduct to reach speech that is constitutionally protected, even as to minors,” said Rosenbaum, who was joined by Judge Nancy G. Abudu. US Supreme Court precedent requires speech that “may be deemed obscene as to minors” to be “protected until the state clearly defines it not to be so.”

Judge Gerald Bard Tjoflat dissented, arguing that the federal courts have gone out of their way to invalidate Florida’s statute.

The court “had two good options: we could apply ordinary tools of statutory construction to read the statute narrowly and avoid unnecessary constitutional conflict, or we could certify the unsettled state-law questions to the Florida Supreme Court,” he said. “Instead, the Majority chooses a third, unwarranted path: it reads the statute in the broadest possible way, maximizes constitutional conflict, and strikes the law down wholesale.”

The state didn’t immediately respond to a request for comment on whether it would seek review from the US Supreme Court.

Watson Burns PLLC and Donati Law PLLC represent Hamburger Mary’s. The Florida Attorney General represents the state.

The case is HM Florida-ORL, LLC v. Sec. of the Fla. Dep’t of Bus. and Prof. Reg., 11th Cir., No. 23-12160, 5/13/25.