State Can’t Enforce Law, Appeals Court Rules

A federal appeals court has kept in place an injunction blocking Florida from enforcing a law that would restrict drag shows in the state, saying the statute likely interferes with First Amendment-protected free speech.  

In a lengthy opinion released Tuesday (May 13), two out of three judges on a panel for the Eleventh Circuit Court of Appeals upheld a district court injunction that bars Florida from enforcing its so-called Protection of Children Act. The statute aimed to prohibit children from attending “lewd” live performances at restaurants and bars, with Governor Ron DeSantis and state lawmakers singling out drag shows in public statements on the law.

A Florida federal judge sided with restaurant chain Hamburger Mary’s in 2023, finding that the law is overly broad and thus tramples on free speech. And in Tuesday’s ruling, two appellate judges — Robin S. Rosenbaum and Nancy G. Abudu — agreed.

“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,” wrote Judge Rosenbaum for the majority.

Tuesday’s ruling means the 2023 injunction will remain in effect for now, and Florida cannot enforce this law while the Hamburger Mary’s lawsuit continues. Discovery has concluded in the case, though a trial date has not been set.

“Obviously, we’re thrilled that the injunction is going to remain in place for the duration of this litigation,” Melissa Stewart, an attorney for Hamburger Mary’s, tells Billboard. “That means that the citizens of Florida will have their First Amendment rights while we finish litigating this case.”

Representatives for the state of Florida did not immediately return requests for comment.

First Amendment law allows governments to restrict “obscene” speech, but only when that speech encompasses “patently offensive” sexual material that appeals to a “prurient interest” and lacks serious artistic or political value.

The Eleventh Circuit majority says that because the Florida law targets an undefined mass of “lewd” shows, it could be used to squash all kinds of constitutionally-protected speech that does not meet the strict “obscenity” standard.

The opinion notes, for example, that a Florida enforcement agency previously revoked one venue’s liquor license after deeming “lewd” a performance in which a drag artist known as “Jimbo” mimicked giving birth to a pile of baloney.

The majority says that while Jimbo’s performance is a “bit odd (and hammy in every sense of the word),” it “cannot be deemed ‘obscene.’”

“One of the act’s sponsors’ stated intent to target ‘Drag Queen Story Time’ also helps show the potential breadth of a term like ‘lewd conduct,’” Judge Rosenbaum wrote. “Of course, one legislator’s interpretation of the act does not an authoritative construction make. But it does betray how much protected speech may fall within the act’s [scope].”

Judge Gerald Bard Tjoflat of the Eleventh Circuit disagreed, writing in a dissent that the majority opinion is wrong because it “reads the statute in the broadest possible way.”

Even if Florida’s statute is unclear, Judge Tjoflat continued, the proper remedy would be to ask the Florida Supreme Court to step in and offer an analysis rather than block enforcement completely.

Florida is among a number of red states that have enacted legislation restricting drag performances in recent years. A similar Tennessee law was also blocked by a judge in 2023, though the Sixth Circuit Court of Appeals reinstated it a year later.