Plaintiff attorney Melissa J. Stewart said Hamburger Mary’s would petition the U.S. Supreme Court to review Florida’s law restricting drag shows.
A federal appeals court has cleared the way for Florida officials to enforce a 2023 law making it a misdemeanor for venues to admit children to drag shows deemed to be obscene.
In a split decision on Aug. 4, the full 11th Circuit Court of Appeals ruled against plaintiff Hamburger Mary’s, a restaurant chain with locations in Florida, which argued that the law was overbroad, vague and at odds with the First Amendment due to its use of words and phrases such as “lewd” and “the age of the child present.”
As a result of Hamburger Mary’s litigation, a lower court enjoined enforcement of the law. But the 11th Circuit last year limited the injunction to apply only to Hamburger Mary’s
In its most recent decision, however, the 11th Circuit vacated the injunction in full and sent the case back to the lower court for additional proceedings.
“... The district court lacked authority to impose a universal injunction that prevented the enforcement of the act against everyone in Florida,” the 11th Circuit said. “... (And) Hamburger Mary’s was not entitled to even a more limited preliminary injunction to prevent the enforcement of the act because its claims do not have a substantial likelihood of success on the merits.”
The court found the Florida Supreme Court’s definition of “lewd” and the phrase “age of the child present” do not result in the law becoming unconstitutionally vague. Florida’s high court defined “lewd” as a “gross indecency with respect to the sexual relations” and “the unlawful indulgence of lust, signifying that form of immorality which has a relation to sexual impurity.”
Judge Robin Rosenbaum wrote a dissenting opinion joined by four other judges.
“Combined with the act’s squishy and opaque sliding-scale age standards, the act’s strict-liability penalties practically guarantee the chilling of protected First Amendment activity – precisely what the Due Process Clause and the First Amendment aim to prevent,” Rosenbaum said.
An attorney for Hamburger Mary’s, Melissa J. Stewart, said the plaintiff would appeal the ruling to the U.S. Supreme Court..
“The 11th Circuit held that the state may criminalize speech it dislikes and strip parents of their right to determine what is appropriate for their own children,” Stewart said in a statement emailed to the Florida Record. “We believe that the First Amendment’s protections are more robust than that. This litigation is not over, and we will continue fighting to protect free speech in the state of Florida.”
Florida’s attorney general, James Uthmeier, expressed satisfaction with the 11th Circuit’s decision in a post on X, formerly Twitter.
“Huge victory for our team at the 11th Circuit!” Uthmeier said. “After three years of litigation, the full court affirmed the constitutionality of Florida’s ban on children attending sexualized drag shows.”
Florida’s Republican Party also celebrated the appeals court ruling.
“Florida Republicans will continue supporting candidates who put children first, defend parental authority, and refuse to blur the line between adult entertainment and the education of Florida’s students …” Evan Power, the state party’s chairman, said in a prepared statement.
The 11th Circuit called the Florida law reasonable in that it worked to safeguard the well-being of children.
“There is no doubt the act is rational,” the court’s majority said. “We will not second-guess the Florida Legislature’s decision to regulate obscenity.”
