Florida Drag Ban Halted By Appellate Court

The "I know it when I see it" rule for obscenity doesn’t cut it, according to this appeals court.

A ban on minors attending family-friendly drag shows in Florida was halted by the U.S. Court of Appeals for the 11th Circuit on Tuesday after judges ruled 2-1 that it violated the First Amendment.

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.”