On Tuesday this week, the United States Federal Appeals Court ruled that Florida’s law banning children from watching sexualized drag performances is constitutional, overturning a lower court’s decision that had previously blocked the state law’s enforcement.
The bar and restaurant chain, Hamburger Mary’s, had been hosting drag performances and even held so-called “family-friendly” children’s shows on Sundays. The chain had sued over Florida’s law, claiming it was unconstitutional, and had received approval from the lower court. However, the judges of the Eleventh Circuit Court of Appeals ultimately voted 8 to 5 to reject the lower court’s decision.
Judge Andrew Brasher, representing the majority opinion, wrote, “We are convinced that the district court erred.” One reason cited was that the district court had no authority to stop the government from implementing the law, and another reason was that Hamburger Mary’s had no right to obtain a limited preliminary injunction to prevent the law’s enforcement.
Hamburger Mary’s lawyer did not respond to requests for comment.
The restaurant had previously argued that Florida’s “2023 Child Protection Act” violated the First Amendment protection of free speech.
The law states that businesses that knowingly allow children to view “adult live performances or simulations depicting or simulating nudity, sexual conduct, sexual excitement, or specified sexual activities” would be committing a misdemeanor.
Businesses found in violation of the Child Protection Act could face penalties of license suspension or revocation, with a first offense fine of $5,000 and subsequent offenses carrying a $10,000 fine each.
Florida Governor Ron DeSantis posted on social media platform X following the appellate court’s announcement of the ruling, stating, “This should not be controversial, but our law to protect children has led to us being sued and winning in a split appellate court.”
Earlier, the district court had supported Hamburger Mary’s lawsuit and issued a preliminary injunction which prohibited the enforcement of the Florida law, applying it statewide.
Governor DeSantis subsequently petitioned the US Supreme Court to stay the injunction but was denied by the judges.
A panel of three judges from the Eleventh Circuit Court of Appeals had previously voted 2-1 in favor of Hamburger Mary’s chain restaurant last May, upholding the district court’s injunction. They argued that Florida’s law exceeded the limits permitted by the First Amendment.
However, the appellate court later allowed all judges to participate in reconsidering the case, meaning all judges of the Eleventh Circuit Court could take part. Ultimately, in an 8-5 vote, the judges confirmed the constitutionality of Florida’s law.
“There is no doubt that this law is reasonable. We will not question Florida’s legislative decision to regulate obscenity,” wrote Judge Brasher in the majority opinion, “Banning children from viewing obscene adult live performances is rationally related to Florida’s aim to protect the welfare of minors.”
Florida Attorney General James Uthmeier praised the Eleventh Circuit Court’s decision, calling it a “huge victory.”