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Federal appeals court blocks Florida’s drag show law over First Amendment concerns

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Published  May 14, 2025 12:20am EDT
Politics
FOX 35 Orlando
Hamburger Mary's opening Kissimmee restaurant

Hamburger Mary's opening Kissimmee restaurant

Hamburger Mary has confirmed plans to open a new location. The announcement comes less than two weeks after the owners announced their downtown Orlando spot off Church Street would close after 16 years.

The Brief

    • A federal court upheld an injunction against a 2023 Florida law targeting children's attendance at drag shows, calling it overly broad and vague.
    • Judges ruled the law violated the First Amendment by failing to define prohibited conduct clearly.
    • The case stemmed from a suit by Hamburger Mary’s, a venue known for family-friendly drag events.

What we know:

ORLANDO, Fla. - A federal appeals court has upheld a preliminary injunction blocking Florida's 2023 law that aimed to prevent children from attending drag performances. 

In a 2-1 ruling, the 11th U.S. Circuit Court of Appeals sided with Hamburger Mary’s, an Orlando-area venue that challenged the law on First Amendment grounds. The court determined the law, known as Senate Bill 1438, is "substantially overbroad" and violates constitutional free speech protections by lacking specificity in its restrictions.

What we don't know:

The future of the law remains uncertain, as it could be subject to further legal challenges or appeals to higher courts. Additionally, it is unclear whether the state legislature will attempt to revise the law’s language or whether the Florida Supreme Court will be asked to weigh in on the interpretation of ambiguous terms like "lewd conduct." Judge Gerald Tjoflat, the dissenting voice in the ruling, urged that course of action instead of invalidating the law outright.

The backstory:

SB 1438, dubbed the "Protection of Children" bill by its Republican sponsors, was part of a broader wave of legislation in Florida and other states targeting drag shows and transgender-related issues. Though it does not explicitly mention drag performances, the law emerged after Gov. Ron DeSantis’ administration took enforcement action against venues that hosted drag shows attended by children. Hamburger Mary’s, known for its family-friendly drag events, filed a lawsuit arguing that the law posed an existential threat to its operations.

What they're saying:

Tuesday’s majority opinion said that "by providing only vague guidance as to which performances it prohibits, the act (the law) wields a shotgun when the First Amendment allows a scalpel at most."

"The Constitution demands specificity when the state restricts speech," said the 81-page majority opinion, written by Judge Robin Rosenbaum and joined by Judge Nancy Abudu. "Requiring clarity in speech regulations shields us from the whims of government censors. And the need for clarity is especially strong when the government takes the legally potent step of labeling speech ‘obscene.’ An ‘I know it when I see it’ test would unconstitutionally empower those who would limit speech to arbitrarily enforce the law. But the First Amendment empowers speakers instead. Yet Florida’s Senate Bill 1438 (the law) takes an ‘I know it when I see it’ approach to regulating expression."

But Judge Gerald Tjoflat, in a 45-page dissent, said the majority "reads the statute in the broadest possible way, maximizes constitutional conflict and strikes the law down wholesale." He argued that the federal court should have sent the case to the Florida Supreme Court for help in interpreting the law — a step known as "certifying" a question to the state court.

"Instead, the majority sidesteps the very tools our system provides — tools designed to respect state authority, foster comity, and avoid unnecessary constitutional rulings," Tjoflat wrote. "By casting aside those safeguards, today’s decision stretches this court beyond its proper role and departs from the humility and restraint that federal courts owe when state law is in question."

The law, dubbed by sponsors the "Protection of Children" bill, sought to prevent venues from admitting children to adult live performances. 

What's next:

Hamburger Mary’s was located in Orlando at the time it filed the lawsuit but later announced plans to move to Kissimmee. An opening date has not yet been finalized. 

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The Source: This story was written based on information shared by The News Service of Florida.

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