Appeals court upholds Florida law banning children from attending drag shows

A screen shot from a drag show where children were seen in the audience.

The 11th Circuit Court of Appeals issued a ruling this week upholding Florida's law, signed in 2023 by Gov. Ron DeSantis, that makes it a misdemeanor for knowingly allowing a child to attend a drag show, rejecting a lawsuit that challenged the law as unconstitutional.

The appeals court handed down an 8-5 ruling on Tuesday in favor of the law. “The act is a straightforward regulation of obscenity,” Judge Andrew Brasher wrote. “Preventing children from attending adult live performances obscene for them is rationally related to Florida’s interest in safeguarding the well-being of minors.” 

Florida's legislature passed the "Protection of Children Act" in 2023 and it was signed by DeSantis, who praised the court's decision this week, in May of that year. The law allows for fines, loss of operating licenses, and criminal penalties against any venue that exposes a child to lewd performances, even if parental consent has been given to a child. The parent company of a restaurant chain called Hamburger Mary's which was known for hosting so-called "family friendly" drag shows in one of its locations brought the lawsuit challenging the law, the news outlet Florida Phoenix reported.

Judge Robin Rosenbaum, writing for the dissenting five judges, argued that the law infringes on First Amendment rights. Prior to Tuesday's ruling, a U.S. district judge granted an injunction after Hamburger Mary's sued, a ruling that was later upheld by an appeals court comprising three judges in a split verdict, according to Florida Phoenix, meaning the law couldn't be enforced. The Desantis administration subsequently appealed to the U.S. Supreme Court to allow the law to be reinstated, but the top court ruled 6-3 against the law. The suit then went back before the full 13-judge appeals court prior to the decisive ruling.

According to Fox News, Tuesday's rule clears the way for Florida officials to again enforce the law. Under the law, an "adult live performance" is defined as a live show 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" and that also predominantly appeals to a "prurient, shameful, or morbid interest," and is "patently offensive."

“This shouldn’t even be controversial, yet our law protecting kids required [the state] to fend off lawsuits and win a case before a divided appellate court,” Florida Gov. Ron DeSantis said in a post on X. Florida Attorney General James Uthmeier also praised the ruling, as have many other conservatives, saying in a post on X, "Huge victory for our team at the 11th Circuit! After 3 years of litigation, the full court affirmed the constitutionality of Florida’s ban on children attending sexualized drag shows.