Court Crushes Red State in Major Ruling Over Controversial Child Protection Law
Court Strikes Down Florida’s Drag Show Ban, Defying DeSantis’ Push to Protect Kids
A federal appeals court has dealt a major blow to Florida’s efforts to keep children away from sexually explicit performances, ruling Tuesday that a 2023 law restricting minors from attending such shows likely violates the First Amendment.
The decision is a victory for critics of the law, including a drag-themed restaurant that filed the original lawsuit.
The law, SB 1438, was originally passed to prevent children from being exposed to adult live performances that could include nudity or simulated sexual conduct.
Although it did not explicitly mention drag shows, state officials—backed by Gov. Ron DeSantis (R)—made clear that performances involving drag queens were part of the concern.
Florida officials had appealed a previous ruling that blocked enforcement of the law, but the 11th U.S. Circuit Court of Appeals upheld the preliminary injunction in a 2–1 decision.
The majority concluded that the law was written too vaguely and risked criminalizing constitutionally protected speech.
“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,” Judges Robin Rosenbaum and Nancy Abudu wrote in their 81-page opinion, according to the Washington Examiner.
“The Constitution demands specificity when the state restricts speech.”
The legal challenge was brought by Hamburger Mary’s, a restaurant chain with an Orlando franchise known for hosting “family-friendly” drag shows.
The venue argued that nothing about its performances was obscene or inappropriate for minors and claimed the law infringed on free expression.
U.S. District Judge Gregory Presnell had issued the original injunction in 2023.
He noted that Florida already had laws against obscene content and raising concerns that SB 1438 was selectively targeting drag performers.
“It appears that this statute is specifically designed to suppress the speech of drag queen performers,” he wrote.
The law barred minors from attending shows “performed in front of a live audience, which… 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.”
Supporters of the law, including its sponsor, Republican state Sen. Clay Yarborough, have defended it as a necessary measure to protect children.
“Parents have the right to raise their children as they see fit, and government intervention should be a last resort,” Yarborough said, according to First Coast News.
“We have to take it seriously when a business or a government entity in our state knowingly admits children to view performances meant for an adult audience.”
DeSantis, who signed the bill into law and has long argued that drag shows “sexualize” children, strongly criticized the ruling.
“Dead wrong,” he said, pushing back against the court’s decision.
In a sharp dissent, Judge Gerald Tjoflat argued the court overstepped its role.
“Instead, the majority sidesteps the very tools our system provides—tools designed to respect state authority, foster comity, and avoid unnecessary constitutional rulings,” he wrote, according to the Washington Examiner.
“By casting aside those safeguards, today’s decision stretches this court beyond its proper role.”
Presnell had also addressed concerns that invalidating the law would harm children by exposing them to adult content.
“This concern rings hollow,” he noted, “when accompanied by the knowledge that Florida state law presently and independently… permits any minor to attend an R-rated film at a movie theater if accompanied by a parent or guardian.”
The ruling now leaves the law blocked while the broader constitutional battle over its language and intent continues.
Legal analysts expect the case could eventually reach the Supreme Court if Florida officials choose to keep fighting.
A federal appeals court ruled Tuesday that a Florida law banning children from attending drag shows was “substantially overbroad” and likely violated the First Amendment.
— Washington Examiner (@dcexaminer) May 14, 2025
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