TALLAHASSEE — A full federal appeals court will take up a battle about a 2023 Florida law designed to prevent children from going to drag shows, after two rulings blocked the law on First Amendment grounds.
The 11th U.S. Circuit Court of Appeals on Monday said it will hold a full-court, or “en banc,” hearing in the state’s appeal of a preliminary injunction issued in 2023 by U.S. District Judge Gregory Presnell. The order also vacated a May decision by a panel of the Atlanta-based appeals court that upheld the injunction.
Monday’s order did not explain the court’s reasoning. But it went along with a request by Florida Attorney General James Uthmeier, who in June sought a rehearing.
The Central Florida venue Hamburger Mary’s challenged the constitutionality of the law, which seeks to prevent venues from admitting children to adult live performances. It defines adult live performances as “any show, exhibition, or other presentation that is performed in front of a live audience, which, in whole or in part, 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.”
It would allow regulators to suspend or revoke licenses of restaurants, bars and other venues that violate the law. Also, it would prohibit local governments from issuing public permits for events that could expose children to the targeted behavior.
While the law did not specifically mention drag shows, it came after Gov. Ron DeSantis’ administration cracked down on venues in South Florida and Central Florida where children attended drag shows. It also came amid a series of controversial laws passed by Republicans in Florida and other states about transgender-related issues.
In upholding the preliminary injunction issued by Presnell, a panel of the appeals court, in a 2-1 decision on May 13, said that “by providing only vague guidance as to which performances it prohibits, the act (the law) wields a shotgun when the First Amendment allows a scalpel at most.”
“The Constitution demands specificity when the state restricts speech,” said the 81-page majority opinion, written by Judge Robin Rosenbaum and joined by Judge Nancy Abudu. “Requiring clarity in speech regulations shields us from the whims of government censors. And the need for clarity is especially strong when the government takes the legally potent step of labeling speech ‘obscene.’ An ‘I know it when I see it’ test would unconstitutionally empower those who would limit speech to arbitrarily enforce the law. But the First Amendment empowers speakers instead. Yet Florida’s Senate Bill 1438 (the law) takes an ‘I know it when I see it’ approach to regulating expression.”
Judge Gerald Tjoflat dissented.
The panel’s majority opinion focused, in part, on the use of the words “lewd conduct” in the law. It said the term is overbroad.
But in a June 3 petition for a rehearing, lawyers in Uthmeier’s office contended that the majority’s “First Amendment analysis makes it nearly impossible for a state to regulate the exposure of children to age-inappropriate performances.”
“‘(Lewd) conduct’ draws on the well-settled meaning of ‘lewd’ in Florida law, defined by the state’s highest court to include the ‘indulgence of lust, signifying that form of immorality which has a relation to sexual impurity’ and ‘indicat[ing] gross indecency with respect to the sexual relations.’” the petition said, partially quoting from a Florida Supreme Court decision. “Florida judges and juries have successfully applied the term for decades. And the (U.S.) Supreme Court has repeatedly upheld use of ‘lewd,’ without further definition, in federal obscenity statutes.”
Monday’s order and a court docket did not indicate when the full court might hear the case.
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This article appears in Nov. 27 – Dec. 03, 2025.