‘The Act wields a shotgun’: Court calls Florida’s drag show law unconstitutional
A federal appeals court said Tuesday, May 13, that Florida’s law restricting minors from attending drag shows is likely unconstitutional, criticizing it for taking a vague, subjective approach. The 11th U.S. Circuit Court of Appeals said the law, known as SB 1438, relies on an “I know it when I see it” standard, which fails to clearly define what types of performances are prohibited.
Court’s concerns about vagueness and overreach
The court found that the law likely violates the First Amendment by improperly restricting live performances and other forms of expressive content.
“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,” the 11th Circuit Court of Appeals wrote.
The appeals court raised concerns about Florida’s history of using similar laws to target drag shows and related performances, warning that the state’s enforcement track record adds to the constitutional issues.
“No one has a constitutional right to perform sexual routines in front of little kids,” a spokesperson for Florida’s governor told the New York Post. “We will do everything possible to have this lawless decision overturned.”
In a 2-1 decision, a three-judge panel upheld a lower court’s ruling, finding the law overly broad and vague, which makes it difficult to determine what conduct it actually prohibits.
Melissa Stewart, attorney for Hamburger Mary’s, said she and her clients feel thrilled with the outcome.
“The Court’s opinion recognizes this law for what it is — an egregiously unconstitutional attempt to censor the speech and expression of citizens,” Stewart said in a statement to multiple news outlets.
The legal challenge against SB 1438
Hamburger Mary’s of Orlando filed a lawsuit in 2023 against Florida Gov. Ron DeSantis and the state’s Department of Business and Professional Regulation, challenging the law’s restrictions on drag performances. The restaurant, known for hosting drag shows, said it has long offered events to be inclusive, including performances specifically geared toward children and families.
In its lawsuit, the restaurant argued that the law violated its First Amendment rights and said attendance at its Sunday drag performances had declined. In line with the law, Hamburger Mary’s banned children from attending its shows and canceled all family-friendly events.
A Florida district court issued a preliminary injunction in 2023 blocking the law from taking effect, a move the appeals court upheld. The panel agreed with the lower court’s finding that the law likely violates constitutional protections and should remain on hold while the case continues.
What does the law say?
DeSantis was one of the champions of SB 1438, which doesn’t specifically state drag shows within the law but uses terms like “adult live performances” and “lewd exposure of prosthetic or imitation genitals or breasts.” The law says venues that “depict or simulate nudity, sexual conduct, sexual excitement, or specific sexual activities” could face fines, and authorities could also charge individuals with a misdemeanor.
“On paper, the Act is the Goldilocks of speech regulation, ensuring each child can access only that speech that is ‘just right’ for their age. Seventeen-year-olds have access to speech that would be obscene as to sixteen-year-olds but not eighteen-year-olds, sixteen-year-olds can see content that would be obscene as to fifteen-year-olds but not seventeen-year-olds, and so on,” the judges wrote.
In making their decision, the courts used a popular Miami billboard as an example featuring the Coppertone sunscreen logo, which shows a young girl with a dog tugging at her swimsuit to reveal her tan line.
“Would that image be considered ‘patently offensive’ for a five-year-old? An eight-year-old? A seventeen-year-old?” the court wrote. “We don’t know and we don’t believe the burden should fall on speakers to figure it out.”
Dissenting opinion: Florida Supreme Court should weigh in
In a dissent, U.S. Circuit Judge Gerald Tjoflat argued the case should have gone to the Florida Supreme Court first, saying the majority acted too soon without fully understanding how the law is applied. The U.S. Supreme Court in March 2024 declined to step in earlier, saying the lower courts could address the matters.
Ella Rae Greene, Editor In Chief
