"Chilling Effect," 11th Circuit Blocks Florida's Drag Ban

"But 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."

Ebyabe // Wikimedia Commons

Today, the 11th Circuit Court of Appeals upheld a lower court’s decision to temporarily block Florida’s drag ban, delivering a major blow to one of the state’s most visible anti-LGBTQ+ laws. The ban, which largely was drafted in response to a single venue—Hamburger Mary’s, a restaurant known for its vibrant, all-ages drag performances—had already prompted widespread self-censorship. Pride events were canceled, and venues across the state scaled back or eliminated drag shows altogether. In its decision, the appellate panel agreed that the law is likely unconstitutionally vague and infringes on First Amendment protections, reinforcing what critics have argued all along: this was a censorship bill cloaked in moral panic.

“Florida’s Senate Bill 1438 (the “Act”) takes an “I know it when I see it” approach to regulating expression. The Act prohibits children’s admission to “live performances” that Florida considers obscene for minors. But 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. And Florida’s his-tory of arbitrarily enforcing other, similar laws against performances that are far from obscene only deepens our concerns. We therefore hold that the Act is likely unconstitutional on its face and affirm the lower court’s injunction against its enforcement,” wrote the majority opinion.

The law in question stems from Senate Bill 1438, cynically titled the “Protection of Children Act.” While Florida officials insisted the law wasn’t a drag ban but merely a restriction on “nudity, sexual conduct, or lewd exposure,” the 11th Circuit wasn’t buying it. The justices pointed to clear evidence that the bill was drafted and promoted with drag shows squarely in its crosshairs. “Though the Act applies to a range of ‘adult live performances,’” the court noted, “its enactors focused on how it would restrict one particular type of performance: drag shows.” When Gov. Ron DeSantis signed the bill, he made the target explicit, saying it was about cracking down on “adult performances… like those drag shows.” One of the bill’s sponsors went even further, calling it a way to “protect our children by ending the gateway propaganda to this evil—‘Drag Queen Story Time.’”

The majority opinion also pointed to the state’s pattern of weaponizing the statute—and other state agencies—to target drag venues. “Florida has a history of efforts aimed at restricting drag shows and venues,” the court wrote. Even before the law’s passage, the Florida Department of Business and Professional Regulation (FDBPR) had launched administrative proceedings to revoke liquor licenses from several establishments hosting drag performances. In one such case, the state accused a venue of violating laws against “lewd and lascivious exhibition in the presence of a minor”—despite the government’s own inspectors reporting that “agents did not witness any lewd acts.”

The lawsuit was brought by Hamburger Mary’s, a restaurant with a long-standing tradition of hosting drag shows—ranging from family-friendly performances to more risqué shows geared toward adults. Its all-ages events, typically held during Sunday “drag brunches,” featured no lewd content and instead focused on comedy, bingo, trivia, and dancing. After Florida enacted its drag ban, Hamburger Mary’s canceled those shows and barred children from attending, citing fear of state retaliation. The restaurant then filed suit against the state, arguing that the law unconstitutionally restricted its freedom of expression under the First Amendment.

The court ruled in favor of Hamburger Mary’s, finding that the law was likely unconstitutionally vague and overbroad. While the justices acknowledged that some performances may be more appropriate for adults than for minors, the statute’s vague prohibition on “lewd conduct” effectively operated as a catchall for anything the state deems objectionable—rather than adhering to the narrowly defined legal standards for obscenity. The court also noted that what qualifies as “lewd” for a 7-year-old might differ significantly from what is inappropriate for a 17-year-old, yet the law draws no such distinction. Most strikingly, the ruling pointed out that even events like Drag Queen Story Hour—a far cry from anything obscene—were explicitly named by the bill’s sponsors as targets, making clear the law was less about protecting children and more about suppressing protected speech.

In one striking portion of the decision, the court determined that the law against drag was even stronger than the law against providing alcohol to a minor: “The Act also provides that “ignorance of a child’s age, [or] a child’s misrepresentation of his or her age . . . may not be raised as a defense.” Id. § 827.11(2). In other words, this is strict liability for anybody who admits a minor to a performance after seeing a convincing fake ID. Even Florida’s laws for serving minors alcohol are more forgiving. See Fla. Stat. § 562.11(1)(d). (And drinking or serving alcohol is not a constitutional right.)”

The temporary injunction will remain in place while the district court issues a final ruling on the merits. In the meantime, Florida has a few options: it could request an en banc hearing before the full 11th Circuit or attempt to escalate the case to the Supreme Court. But unless or until either of those paths materializes, the drag ban remains blocked—and for now, the First Amendment holds.