Florida Can Bar Children From Drag Shows — and the Fight Goes Back to Orlando

Florida can bar children from adult live performances, after the full 11th Circuit ruled 8-5 on Tuesday to vacate the injunction in the Hamburger Mary's case.

The ruling is narrower than it first appears. The court did not end the case. It found that the plaintiff had not shown a “substantial likelihood” of winning in the end, and sent the dispute back to the district court in Orlando for the rest of the fight, as the Tallahassee Democrat reported. The suit was filed by the operator of the Orlando Hamburger Mary's, per The Advocate; Florida Phoenix says the parent company brought it. What changed is that Florida no longer has to wait for that fight to finish.

What the law actually says

The 2023 Protection of Children Act — SB 1438, approved by Gov. Ron DeSantis — never uses the word drag. It bars venues from admitting children to “adult live performances,” which it defines as shows that “depict or simulate nudity, sexual conduct, sexual excitement, specific sexual activities, … lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts.” The ellipsis is the Democrat's.

The penalties are the part venue owners actually think about. Per Newsweek, a first violation costs a business $5,000, and every one after that costs $10,000 — plus the operating or liquor license can be suspended or pulled outright. A person who knowingly waves a child through commits a first-degree misdemeanor, which carries as much as a year behind bars and $1,000. Florida Phoenix notes the penalties apply even where a child's parent consented.

And while the statute is silent on drag, the people who passed it were not. Newsweek, quoting the Tampa Bay Times, has bill sponsor Randy Fine saying: “I think it's important that we're saying in Florida: We're not going to let these disgusting drag queen sex shows happen in front of kids.”

The majority, and two dissents

Judge Andrew Brasher, a Trump appointee, wrote for the majority. At this preliminary stage, Newsweek reports, it found the law targets material that counts as obscene for minors, and is neither unconstitutionally vague nor too broad. “In any event, the Act is consistent with a legislative intent to target drag shows that are obscene for children, not drag shows writ large,” he wrote. Florida Phoenix, whose account ran in Watermark Out News, quotes him calling the act “a straight forward regulation of obscenity.”

Judge Robin Rosenbaum, an Obama appointee, wrote a 27-page dissent. She accused her colleagues of embracing “mess-around-and-find-out (‘MAFO') First Amendment jurisprudence” — a regime in which “a citizen can learn whether a law prohibits their speech only by taking a wild guess, presenting their speech, and then seeing if they get arrested and face imprisonment, thousands of dollars in fines, and loss of their business license.” Per Florida Phoenix, she described the statute as wielding a “Titanic-sized iceberg of chilling power” against free speech. The Democrat has her writing that the vague language “serves as an especially pernicious club to silence political speech.”

Judge Nancy Abudu wrote separately, in nine pages, arguing the majority had brushed past legislative history — which, she noted, includes an analysis prepared by legislative staff warning that the law's “indeterminate scope could lead venues to cancel performances based on a justified fear of prosecution.”

Newsweek reports that Hamburger Mary's argued exactly that in its pleadings, saying it had already scrapped the family-friendly Sunday slot and shut children out of its remaining shows because it feared prosecution.

The state's side, and the plaintiff's

Florida Attorney General James Uthmeier took the victory lap on X, writing that “after 3 years of litigation, the full court affirmed the constitutionality of Florida's ban on children attending sexualized drag shows.”

Melissa Stewart, who represents the Orlando Hamburger Mary's, said in a statement that the court “held that the State may target speech it dislikes and strip parents of their right to determine what is appropriate for their own children.” She added: “We believe that the First Amendment's protections are more robust than that. This litigation is not over, and we will continue fighting to protect free speech in the state of Florida.”

What is still unsettled

Here is the detail that stuck with us: the Orlando Hamburger Mary's, the restaurant that hosted the family-friendly drag brunches this law ended, closed in 2024, according to Florida Phoenix. The case outlived the venue.

One thing we could not resolve, and would rather flag than paper over: our sources disagree about what the law's status was before this week. Newsweek says a divided three-judge panel upheld the injunction in 2025, leaving the law blocked until now; Florida Phoenix says the same panel affirmed the lower court 2-1, without giving a year. Instinct Magazine and the Democrat both describe the appeals court as having already lifted the block earlier, which would mean Florida had been enforcing it for months. Two outlets each way, including the outlet that broke the story. We could not settle it from the reporting available, so we are not going to pretend we did.

What is not in dispute: a district judge blocked the law in 2023, and the full circuit heard argument in June before ruling this week. Separately, Florida Phoenix is the only one of our sources to report that the Supreme Court declined 6-3 to reinstate the law while the challenges played out, with Justices Thomas, Alito and Gorsuch dissenting — and it places that denial after the panel ruling, not before.

Florida is also not alone, though the map is messier than a headcount suggests. Newsweek, citing the Movement Advancement Project, counts six states, with Montana and Tennessee the two whose laws explicitly restrict drag performance. Tennessee's Adult Entertainment Act avoids the word, reaching instead for “male or female impersonators.” Montana's House Bill 359 expressly bars “drag story hour” — though Newsweek reports the statute cannot be enforced at present, a district court having blocked it in 2023 and the 9th Circuit having upheld that injunction in March 2026. Florida, Arkansas, North Dakota and Texas have broader adult-performance laws that Newsweek says could apply to some drag events, while noting none of them prohibits drag as general entertainment.

None of the coverage we read gets to the question that matters most to a room in Orlando or Tampa: whether operators change their programming, their door policy or their all-ages billing. That is the part worth watching.