Appellate Court Says Florida’s Drag Show Ban Is Likely Unconstitutional

On Tuesday, a federal appellate court ruled that an injunction barring the enforcement of Florida’s drag show ban could remain in place pending the outcome of the case in lower courts, finding that the ban is likely in violation of First Amendment speech freedoms.

The Florida law, passed by a Republican state legislature and signed by GOP Gov. Ron DeSantis, doesn’t explicitly mention drag shows in its text. But the regulation of “adult live performances” in front of audiences with children present — including shows that use “prosthetic or imitation genitals or breasts” — undoubtedly targets drag shows. Venues that violate the statute face fines and the possibility of having their liquor license suspended or revoked, while individuals could be charged with a misdemeanor.

The law was challenged by Hamburger Mary’s restaurant in Orlando, Florida, which regularly hosts family-friendly drag shows for its patrons.

In a 2-1 decision before the 11th Circuit Court of Appeals, the court’s majority ruling, authored by Judge Robin Rosenbaum, found that the law was not specific enough in detailing what should be regulated, adding that the plaintiffs had a very high likelihood of success in showing their First Amendment speech rights would be violated by enforcement of the law.

“By providing only vague guidance as to which performances it prohibits, the Act wields a shotgun when the First Amendment allows a scalpel at most,” Rosenbaum wrote in the court’s opinion.

The provisions of the law “turn the Act into an ‘I know it when I see it’ law,” Rosenbaum added. “But the Constitution requires more clarity.”

Although the law itself never mentions drag show performances, those involved in its passage — including DeSantis and one of the bill’s legislative cosponsors — directly alluded to targeting drag shows.

The court recognized this fact in its opinion.

“Though the Act applies to a range of ‘adult live performances, its enactors focused on how it would restrict one particular type of performance: drag shows,” Rosenbaum wrote.

The court upheld the injunction placed on the law by a judge in a lower court, where the case will now move forward for an eventual final judgment.

Brian Wright, a spokesperson within DeSantis’s office, decried the ruling.

“No one has a constitutional right to perform sexual routines in front of little kids. We will do everything possible to have this lawless decision overturned,” Wright said.

But Hamburger Mary’s co-owner John Paonessa noted that the governor’s definition of what is “sexual” is far too ambiguous.

“For them, lewd and inappropriate is just a drag queen dressed in clothes not exposing anything. That, to them, is too much,” Paonessa said.

“The Court’s opinion recognizes this law for what it is — an egregiously unconstitutional attempt to censor the speech and expression of citizens,” said Melissa Stewart, the attorney representing Hamburger Mary’s in the lawsuit.