The 11th U.S. Circuit Court of Appeals has affirmed the constitutionality of Florida’s ban on children attending sexualized drag performances.
The ban originates from the Protection of Children Act, Senate Bill 1438, enacted in 2023. The law makes it a misdemeanor to knowingly admit a child under 18 to an “adult live performance,” defined as any show that depicts nudity, sexual conduct, lewd behavior, or the exposure of prosthetic genitals or breasts.
Orlando restaurant Hamburger Mary’s, which hosts drag brunches, challenged the statute, asserting that it infringes First Amendment rights and that decisions about age‑appropriate content should rest with parents.
A federal district court in the Middle District of Florida issued a broad preliminary injunction blocking enforcement of the law, and the U.S. Supreme Court later stayed the Act.
In May 2025, a three‑judge panel of the 11th Circuit affirmed the injunction, finding that the plaintiff was likely to succeed on vagueness grounds, particularly regarding the terms “lewd” and the variable age standard.
The full circuit reheard the case en banc and, by late 2025, limited the injunction to Hamburger Mary’s while permitting broader enforcement against other entities.
In June 2026, the state’s solicitor general argued the case before the en banc court.
On August 4, 2026, the en banc panel, voting 8‑5, vacated the preliminary injunction entirely, concluding that the plaintiff had not shown a substantial likelihood of success.
The majority opinion held that the statute is not unconstitutionally vague or overbroad, that the Florida Supreme Court’s definition of “lewd” offers sufficient clarity, and that the age‑variable standard does not invalidate the law.
The court emphasized the state’s interest in protecting minors from material deemed obscene for them and clarified that the measure does not constitute a blanket ban on drag shows.
The case has been remanded to the district court for further proceedings.
