Florida Drag Ban Halted By Appellate Court
The ruling marks a major victory for Hamburger Mary's of Orlando, a restaurant in the Sunshine State that offers food and entertainment, including drag performances — and specifically family-friendly drag shows on Sundays — to its patrons.
The restaurant sued in 2023 after the Florida Senate passed SB 1438. The law purported to focus on the 'protection of children' from obscenity by criminally penalizing businesses that permitted a child into an 'adult live performance.' Anyone found in violation of the law would be charged with a misdemeanor.
SB 1438 did not mention drag shows or drag in particular. However, it defined 'adult live performances' as any presentation that 'in whole or in part' depicted things like nudity or sexuality — including 'lewd exposure of prosthetic or imitation genitals or breasts when it predominantly appeals to a prurient, shameful or morbid interest.'
Judge Robin Rosenbaum said Florida lawmakers had essentially applied a non-legal, 'non-definition' of obscenity made popular by Supreme Court Justice Potter Stewart in 1964. Potter famously said his threshold to test obscenity was simply that he would 'know it when I see it.'
'Many know Justice Stewart's quip. But it's not, in fact, the law,' Rosenbaum wrote Tuesday, adding that SB 1438's approach to regulating expression 'wields a shotgun when the First Amendment allows a scalpel at most.'
Hamburger Mary's said that it lost 20% of its bookings after the ban went into effect. The restaurant shuttered its doors in downtown Orlando in 2024, complaining of lowered foot traffic in the area, and announced plans to relocate to nearby Kissimmee. The state claimed the restaurant's move meant the lawsuit should be nixed altogether, but the appellate court found that SB 1438 still infringed upon the rights of Hamburger Mary's, regardless of where within the state it planned to move.
Florida already has obscenity laws meant to protect minors, and the court found Tuesday that the prohibitions laid out in SB 1438 didn't add an extra layer of protection for kids.
The court also said Florida officials didn't meaningfully distinguish how 'lewd' and 'sexual' content may or can be separated.
These officials appear to be particularly miffed by a drag queen known as Jimbo, Rosenbaum noted in the opinion.
Jimbo, who has appeared on 'RuPaul's Drag Race,' is known for highly eccentric performances set to music with costuming that sometimes showcases prosthetic body parts like massive fake breasts beneath deep plunging necklines or bikinis.
But that's not what Florida was worried about, the appellate court explained.
Added into evidence by the Florida government were photos and video clips from Jimbo's other 'signature acts,' which involved him 'donning Marcel Marceau-like makeup, a prosthetic stomach and backside, and a stretchy, fully body white suit (leaving no skin or prosthetic skin visible other than face,)' Tuesday's order states.
'Jimbo dances and prances onstage, lip-syncing to Björk's cover of Betty Hutton's 1951 song 'Its Oh So Quiet,' before undoing a hidden zipper on the stomach's underside and pulling from within . . . a pile of baloney,' Rosenbaum wrote. 'Perhaps some may consider Jimbo's baloney birth a bit odd (and hammy in every sense of the word).'
If Florida state officials thought this was too 'nasty, suggestive, and indecent,' for adults, Rosenbaum noted, that alone raised major questions about what the state would do in response to far tamer drag shows if the injunction was allowed to stand.
The sole dissent from Judge Gerald Bard Tjoflat claimed that the district court moved too swiftly when it first put an injunction on SB 1438. He also argued that the U.S. Supreme Court had historically upheld laws that emphasized the government's 'special interest in protecting children from exposure to otherwise protected speech.'
But neither Florida nor Tjoflat were able to explain what exactly they meant when describing restrictions for so-called 'lewd conduct': Tjoflat suggested 'lewd conduct' was meant to cover depictions of the 'known unknowns' and other 'exotic' materials.
'In other words, the legislature and the dissent would know it when it sees it,' Rosenbaum wrote.
If Florida seeks to challenge the ruling, the next stop would be the U.S. Supreme Court.
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