The full Eleventh Circuit vacated a preliminary injunction against a Florida law restricting children’s admission to certain live performances. The ruling removes the preliminary barrier challenged in the appeal, but it does not end the constitutional lawsuit.
Key Facts
- Federal appellate ruling: The court vacated the preliminary injunction and remanded the case.
- Florida law: The statute prohibits knowingly admitting a child to a defined “adult live performance.”
- Procedural status: The ruling addresses preliminary relief rather than a final judgment ending the lawsuit.
- Constitutional claims: Eight judges agreed that Hamburger Mary’s had not shown a substantial likelihood of success on its facial claims.
What the court decided
Hamburger Mary’s Orlando brought a pre-enforcement challenge under the First and Fourteenth Amendments. The restaurant argued that the law is facially overbroad and vague.
A facial challenge asks a court to invalidate a law beyond its application to one particular enforcement action. In a First Amendment overbreadth claim, the challenger must show that the law restricts substantial protected speech compared with its lawful reach.
The en banc majority held that Hamburger Mary’s had not shown a substantial likelihood of winning its claims. That showing is required for a preliminary injunction, which temporarily restricts conduct while litigation continues.
The majority concluded that Florida’s legal definition of “lewd” narrowed the statute’s reach enough to defeat the asserted overbreadth. It also held that the phrase “age of the child present” did not make the law facially vague.
The court therefore vacated the injunction and returned the case to the U.S. District Court for the Middle District of Florida.
What the Florida statute covers
The statute does not prohibit children from attending every performance featuring drag. It prohibits knowingly admitting a child to a statutorily defined “adult live performance.”
The definition requires specified sexual or lewd content and three additional criteria. The performance must appeal predominantly to a prurient, shameful or morbid interest, be patently offensive, and lack serious literary, artistic, political or scientific value for the child’s age.
Florida defended the law as regulating performances that are obscene for children, not drag performances generally. The majority said the text does not target performances merely because they feature drag.
A violation of the child-admission provision is a first-degree misdemeanor under Florida law. The 2023 act also authorizes licensing fines, suspensions or revocations for certain covered businesses.
How the judges divided
Six judges joined Judge Andrew Brasher’s entire opinion. Judges Kevin Newsom and Britt Grant joined the merits analysis but not the section concerning the injunction’s statewide scope.
That produced an effective 8–5 division on the constitutional claims. Judge Grant wrote a separate concurrence joined by Judge Newsom.
Five judges joined Judge Robin Rosenbaum’s merits dissent. The dissent argued that the age-dependent standards are too uncertain and risk chilling expression protected by the First Amendment.
The dissent maintained that venues lack adequate guidance for deciding what material is suitable or valuable for children of different ages. It would have held the age-variable provisions unconstitutionally vague.
What remains unresolved
The decision does not find that Hamburger Mary’s, its performers or any other venue violated the law. The case began before an enforcement action, and the appellate court did not adjudicate a criminal violation.
The ruling also does not resolve every possible constitutional challenge to a future application of the statute. It decides the request for preliminary relief and the facial claims presented in that appeal.
The en banc ruling replaces a divided May 2025 panel opinion that had affirmed the injunction. The court vacated that panel opinion when it granted rehearing en banc.
Further proceedings will occur in the district court on remand. The appellate disposition does not constitute a final judgment resolving the entire underlying lawsuit.
