Court Upholds Florida Law Protecting Children From ‘Adult’ Performances

A federal court restored enforcement of a Florida law protecting children from “adult live performances,” shows or presentations that depict nudity, sexual conduct or specific sexual activities.

Hamburger Mary’s, a drag-themed restaurant chain, challenged the state’s Protection of Children Act, saying it violated its freedom of speech. A district court enjoined the law, keeping the state from enforcing it while the suit was going through the trial process.

A three-judge panel from the U.S. Court of Appeals for the 11th Circuit upheld that decision, but the full court then reheard the case and overturned the universal, state-wide injunction in an 8-5 decision.

Florida’s SB 1438 was signed into law by Governor Ron DeSantis in 2023. The legislation made it a first-degree misdemeanor for hotels or restaurants to admit a child to an adult live performance. Establishments that did so could receive fines or have their licenses revoked or suspended.

The law defined “adult live performances” as “any show, exhibition, or other presentation in front of a live audience which, in whole or in part, depicts or simulates nudity, sexual conduct, sexual excitement, or specific sexual activities … lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts.”

The Protection of Children Act defined a performance as out of bounds for children when it:

1. Predominantly appeals to a prurient, shameful, or morbid interest.

2. Is patently offensive to prevailing standards in the adult community of this state as a whole with respect to what is suitable material or conduct for the age of the child present.

3. Taken as a whole, is without serious literary, artistic, political, or scientific value for the age of the child present.

Hamburger Mary’s complaint said the restaurant “has presented drag performances at its venue since 2008,” explaining that it offered “family friendly” performances on Sundays. The lawsuit said:

There is no lewd activity, sexually explicit shows, disorderly conduct, public exposure, obscene exhibition, or anything inappropriate for a child to see.

Even though its “family friendly” drag shows were so tame, the chain “advised its customers that children would not be permitted to attend any drag shows,” out of fear they would be prosecuted under the act. Hamburger Mary’s said the statute had “a chilling effect” on their protected speech.

Why change policies if your performances are suitable for children?

The restaurant said the act violated its First Amendment rights, arguing that “the statute is not content-neutral” and “is view-point discriminatory because it targets drag queens.” The suit pointed out that Florida’s SB 1438 was passed after the DeSantis administration began investigating and speaking out against children attending drag shows with inappropriate content.

But the law targeted any venue that allows children to view adult live performances that depict lewd sexual conduct – not just drag shows. The word “drag” does not appear in SB 1438.

In asking for an injunction against the law, the restaurant chain also argued that the law’s use of the term “lewd” and the phrase “the age of the child present” made it “unconstitutionally overbroad and vague.”

The 11th Circuit majority ruled that the district court erred in blocking any enforcement of the law for two reasons:

First, the district court lacked authority to impose a universal injunction that prevented the enforcement of the Act against everyone in Florida.

The court pointed to the recent U.S. Supreme Court decision in Trump v. CASA, where the Court said federal district judges can’t universally enjoin the enforcement of an executive or legislative policy against all people and parties. The 11th Circuit said the case didn’t just apply to nationwide injunctions, adding that “there is no statewide exception to CASA.”

The opinion then explained:

Second, 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 Supreme Court of Florida’s definition of “lewd” eliminates any overbreadth, and the use of the phrase “age of the child present” does not render the Act unconstitutionally vague.

Hamburger Mary’s v. Florida moves back to the federal district court, though the restaurant can appeal the circuit court’s decision to the Supreme Court.

Meanwhile, the state can protect children by enforcing the law.

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