Florida’s Ban on Children Attending Drag Shows: What to Know

A federal appeals court has upheld Florida’s ban on children attending obscene drag shows. But the plaintiff is not happy and wants the Supreme Court to review the case, which outlines what is considered protected speech under the First Amendment.

The state law in question, the Protection of Children Act, does not explicitly ban drag shows. It focuses on protecting minors from obscenity, which Florida said was part of the drag performances at the venue suing the state.

The bar and restaurant, which holds what it describes as “family-friendly” drag shows, argues the law is too vague and does not properly define what is obscene for a child.

In its Aug. 4 decision, the U.S. Court of Appeals for the 11th Circuit disagreed.

Here’s what to know about the case and the contesting views that the Supreme Court is being asked to review.

What’s in the Act?

The Protection of Children Act makes it a misdemeanor for a business to knowingly admit a child to an “adult live performance” that “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.”

It outlines penalties for public lodging and food service businesses, regulated by the state, if they admit children to such performances.

The act further clarifies prohibited performances for children as those that “predominantly appeal to a prurient, shameful, or morbid interest” and “taken as a whole, [are] without serious literary, artistic, political, or scientific value for the age of the child present.”

Children are also banned from attending shows that are “patently offensive to prevailing standards in the adult community of this state.”

Punishments could include jail time, and suspension or revocation of license. A first offense carries a $5,000 fine, and each subsequent one a $10,000 fine.

How The Case Escalated to the Appeals Court

Before the Aug. 4 ruling, the governor and proponents had been dealt multiple defeats.

Days after the act was signed into law in May 2023, it was challenged in the courts by the venue, Hamburger Mary’s.

Hamburger Mary’s and supporters had argued the legislation was too vague and did not properly outline what kind of performances are obscene for children.

About a month after the lawsuit was filed, District Judge Gregory Presnell granted the drag show venue an injunction, agreeing with Hamburger Mary’s that the law was too vague.

Presnell said it did not properly define “live performance,” “child,” “lewd conduct,” and “lewd exposure of prosthetic or imitation genitals or breasts.”

“The act’s focus on ‘prosthetic or imitation genitals or breasts’ raises a host of other concerns not simply answered—what are the implications for cancer survivors with prosthetic genitals or breasts?” Presnell added.

He later said his injunction applied to the entire state because of the law’s “chilling effect” on free speech.

Florida appealed to the 11th Circuit Court of Appeals, and a three-judge panel dealt Florida Gov. Ron DeSantis and allies their next loss in a 2–1 ruling in May 2025, upholding the lower court’s injunction.

Judge Robin Rosenbaum, writing for the majority, said the law “wields a shotgun when the First Amendment allows a scalpel at most.”

But the 11th Circuit also granted an en banc hearing, meaning that all the judges for the appeals court would consider the case.

What Was the Court’s Majority Decision?

The full appeals court ruled on Aug. 4 to vacate the injunction and uphold Florida’s law as constitutional in an 8–5 decision.

Judge Andrew Brasher, who wrote the majority opinion, said the district court was mistaken to grant the injunction.

“There is no doubt the Act is rational. We will not second-guess the Florida Legislature’s decision to regulate obscenity,” Brasher said. “Preventing children from attending adult live performances obscene for them is rationally related to Florida’s interest in safeguarding the well-being of minors.”

Melissa Stewart, one of the attorneys for Hamburger Mary’s now seeking review by the Supreme Court, argues the 11th Circuit’s decision strips parents of their right to determine what is appropriate for their children.

“We believe that the First Amendment’s protections are more robust than that,” she told The Epoch Times via email.

“It will be difficult for citizens to know precisely what speech the law does and does not prohibit.”

Have Other States Made Similar Efforts?

Montana tried implementing a similar law, banning drag performers from reading to children during story hour while restricting kids from attending drag shows. The U.S. Court of Appeals for the Ninth Circuit upheld a block against that legislation on March 13.

Tennessee enacted legislation in 2023 that banned performances “harmful to minors” on public property or anywhere that minors could be present. It was met with a lawsuit and blocked from going into effect until the U.S. Court of Appeals for the Sixth Circuit reversed that lower order.

North Dakota, Arkansas, and Texas also have laws restricting minors from attending adult live performances.

Will the Supreme Court Get Involved?

Stewart said the plaintiffs are now seeking a Supreme Court review and asking that all enforcement of the law be paused in the meantime.

DeSantis attempted to get the Supreme Court involved in 2023 when he asked the justices to halt the injunction. They denied his request.

Stewart said she doesn’t believe this will have any bearing on whether the Supreme Court will accept her and Hamburger Mary’s petition to hear the case.

The restaurant’s lawyers could seek a high court review on two broad grounds: the statewide scope of the injunction and what is considered obscene under the First Amendment.

However, Mat Staver, founder and chairman of the nonprofit conservative litigation firm Liberty Counsel who is following the case, said he doubts the Supreme Court will take up the case, saying there is “plenty of instruction” on obscenity spanning decades.

The majority of the 11th Circuit also ruled that obscenity for children is well-defined, citing the Supreme Court’s 1973 Miller v. California decision that established the modern, legal definition of obscenity and how certain material is not protected by the First Amendment.

That landmark decision from the high court created the so-called “Miller test,” involving three requirements that must be met for something to be considered obscene and unprotected.

“Is it focused primarily on sexual activity? Is it patently offensive to the community, particularly as it relates to minors? And does it have a lack of any literary, scientific, or other value?” Staver said.

Florida’s law “tracks the Miller standard,” the 11th Circuit said.

In its ruling, the appeals court used another Supreme Court decision from 2025, Trump v. CASA, which said universal injunctions—even at the state level like what was applied against the Protection of Children Act—are too broad.

Hamburger Mary’s lawyer says a Supreme Court review is needed to protect her client’s free speech. She fears that if the 11th Circuit’s ruling regarding children is upheld, the most likely outcome is that people will self-censor to avoid prosecution.

“That self-censorship is exactly what the First Amendment is supposed to protect against,” Stewart said.

Staver said that if the Supreme Court takes up the case, he believes it will uphold Florida’s law.

Then, the ruling won’t just be binding for Florida, Georgia, and Alabama, which are under the 11th Circuit Court, but the legislation will “become a national precedent that’s binding on all states and territories,” he said.