Today, the full U.S. Eleventh Circuit Court of Appeals sitting en banc ruled 8-5 that Florida’s “Protection of Children Act” banning the admittance of minors to “adult live performances” is constitutional. The appeals court restored the law by vacating a statewide injunction from a lower court and sent the case back down for proceedings consistent with the ruling.

“[T]he act is a straightforward regulation of obscenity,” wrote Judge Andrew Brasher, authoring the majority opinion. “Preventing children from attending adult live performances obscene for them is rationally related to Florida’s interest in safeguarding the well-being of minors.” 

Liberty Counsel had filed an amicus brief in the case, HM Florida-ORL, LLC v. Florida, urging the Eleventh Circuit to restore the law because the state has a compelling interest in protecting children from obscene, lewd, and sexual content.

The case arose in 2023 when the Hamburger Mary’s restaurant, which hosts regular drag performances, sued the state after the restaurant cancelled its so-called “family friendly” drag shows on Sundays where children were welcome to attend. Hamburger Mary’s alleged the “Protection of Children Act” was unconstitutionally vague and a content-based speech restriction. The federal district court agreed the law was overbroad and issued a statewide preliminary injunction against the law.

However, the Eleventh Circuit held that the district court lacked the authority to issue a universal injunction that prevented the state from enforcing the law against everyone in Florida. Under recent U.S. Supreme Court precedent, federal courts may generally grant relief to the parties in the case before them.

Judge Brasher also noted that Hamburger Mary’s failed to establish the law was “vague” and “content-based,” and therefore the court could not even “narrow” the injunction solely to the restaurant itself due to established obscenity standards.

The Act bans admitting “a child of any age” to a performance that depicts nudity, sex, or lewd conduct, but its references to “lewd” and “child of any age” are consistent with the longstanding obscenity laws governing minors, noted Judge Brasher.

“The Constitution protects speech, but not obscenity,” reads the opinion. “…it is difficult to imagine any sex-based performance that predominantly appeals to a prurient interest being suitable for a child of any age.” 

Judge Brasher concluded Florida’s law was “rational” for it did not target the content of drag performances rather it only regulated whether children could be present.

Liberty Counsel Founder and Chairman Mat Staver said, “The ruling by the full court of appeals reinforces the longstanding principles that children should be protected from obscenity. The appeals court rightly ruled that states have a compelling interest in protecting children from obscene content and doing so fits squarely within constitutional boundaries. Exposing children to lewd adult performances is not protected by the First Amendment, and Florida’s ‘Protection of Children Act” rightfully shields children from that obscenity. This decision shows that child-protection measures grounded in established obscenity doctrine does not infringe of the First Amendment’s free speech protections.”