Appeals court sides with Hamburger Mary's in suit challenging Florida drag show law
ORLANDO, Fla. — An Orlando restaurant won a significant court victory against Gov. Ron DeSantis Tuesday with a federal appeals panel rejecting a Florida law aimed at keeping children out of drag shows, saying it was overly broad and likely unconstitutional.
Judges sided with Hamburger Mary's, a drag-themed eatery, in a 2-1 decision. The restaurant sued DeSantis and Florida's Department of Business and Professional Regulation in 2023, arguing the state law passed that year bars children from even the 'most innocent drag performances.'
Writing for the majority, Judge Robin S. Rosenbaum said the law's language wasn't specific enough to meet First Amendment standards.
'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,' said Rosenbaum's 81-page majority opinion joined by Judge Nancy Abudu. 'And Florida's history of arbitrarily enforcing other, similar laws against performances that are far from obscene only deepens our concerns.'
The state appealed to the 11th U.S. Circuit Court of Appeals after a lower court issued a preliminary injunction blocking the law.
In a statement, DeSantis spokesman Brian Wright blasted the appeals court's decision as an 'egregious overreach by a federal court' that prohibits the state 'from enforcing a common sense law.'
'No one has a constitutional right to perform sexual routines in front of little kids,' he said. 'We will do everything possible to have this lawless decision overturned.'
But John Paonessa, co-owner of Orlando's Hamburger Mary's restaurant, said laws were already on the books to protect children from sexually explicit content. He said he thinks the intention of the 2023 law was to intimidate venues from letting children into any event featuring performers in drag.
'For them lewd and inappropriate is just a drag queen dressed in clothes not exposing anything,' he said. 'That to them is too much.'
Though supporters argued the law, dubbed the 'Protection of Children Act,' was needed to shield children from sexually explicit performances, critics blasted it as targeting the LGBTQ+ community with unclear language that could endanger drag brunches and even the 'Mrs. Doubtfire' musical. Hundreds of drag performers marched in Tallahassee in protest of the legislation.
The statute doesn't explicitly mention drag shows. Instead, it prohibits minors from attending an 'adult live performance' that 'depicts or simulates nudity, sexual conduct, sexual excitement, or specific sexual activities,' including 'the lewd exposure of prosthetic or imitation genitals or breasts.'
The law came after a DeSantis administration crackdown on venues where children attended drag shows.
Hamburger Mary's was forced to ban children from what the restaurant called its family-friendly shows, resulting in a 20% drop in Sunday bookings, according to the restaurant's suit.
In the opinion, judges referenced Miami's iconic Coppertone sunscreen billboard to bolster their argument. The ad shows 'a girl, perhaps age seven, or so, with a dog pulling at her swimsuit, revealing her pale posterior and its contrast with her tanned skin,' Rosenbaum wrote.
'Would a depiction like the Coppertone logo be 'patently offensive' for a five-year-old? An eight-year-old? How about a seventeen-year-old? We don't know, and we don't think the burden should be on speakers to find out,' she wrote.
Judge Gerald Bard Tjoflat dissented, writing he thought the majority went too far and 'reads the statute in the broadest possible way, maximizes constitutional conflict, and strikes the law down wholesale.'
Tjoflat wrote the court should engage the law's text 'in good faith and with the presumption that the Legislature did not intend to infringe on constitutional rights.'
Last year, Hamburger Mary's shuttered its location on Church Street in downtown Orlando. Owners said in January they are hoping to reopen in Kissimmee.
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