The full Eleventh Circuit Court of Appeals ruled 8, 5 to uphold Florida's 2023 Protection of Children Act, handing the state a decisive win after three years of litigation over whether minors can be barred from drag shows featuring nudity and lewd conduct.
U.S. Circuit Judge Andrew Brasher, a Trump appointee, wrote the majority opinion and drew a firm constitutional line. The ruling overturns both a 2023 lower-court order that blocked the law and a subsequent three-judge panel decision that agreed with the lower court. Florida Attorney General James Uthmeier called it a "huge victory" and credited Solicitor General Dave Dewhirst, who argued the case on the state's behalf.
The decision makes Florida one of five states, alongside Arkansas, North Dakota, Tennessee, and Texas, that now actively prohibit minors from attending adult live performances as defined by statute. The law carries real teeth: anyone who knowingly admits a child to a qualifying show faces a misdemeanor charge, up to one year in jail, and a $10,000 fine.
The majority opinion rested on a straightforward principle. As Breitbart reported, Judge Brasher wrote plainly:
"The Constitution protects speech, but not obscenity."
Brasher continued that the court would not substitute its own judgment for the Florida Legislature's decision to regulate material it deemed obscene for minors. The opinion framed the statute's reach as limited and rational.
"Preventing children from attending adult live performances obscene for them is rationally related to Florida's interest in safeguarding the well-being of minors."
He went further, noting that "it is difficult to imagine any sex-based performance that predominantly appeals to a prurient interest being suitable for a child of any age." That sentence captures the core logic: the state is not regulating ideas or identity. It is regulating sexually explicit conduct performed in front of children.
The Florida statute defines an "adult" performance as any live show that depicts or simulates nudity, sexual conduct, sexual excitement, specific sexual activities, lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts. The majority cited the Florida Supreme Court's longstanding definition of lewdness as "gross indecency with respect to sexual relations" and "the unlawful indulgence of lust, signifying that form of immorality which has a relation to sexual impurity."
None of that language targets a category of performer. It targets a category of conduct, conduct that, under Florida law, no child should be made to witness in a live setting.
The lawsuit began when Hamburger Mary's Restaurant and Bar, an Orlando establishment, sued to preserve its ability to host what it called "family friendly drag shows." Senior District Judge Gregory Presnell, a Clinton appointee, sided with the restaurant and blocked the law in 2023. A three-judge panel on the Eleventh Circuit later agreed with Presnell's ruling.
But the full bench saw it differently. Eight judges voted to reverse both prior decisions. Five dissented, with U.S. Circuit Judge Robin Rosenbaum, an Obama appointee, writing the dissent.
Rosenbaum's dissent leaned on statements made by Florida officials during the law's passage. She cited Governor Ron DeSantis describing the law as "being about adult performances... like those drag shows." She also cited State Representative Randy Fine, the bill's primary sponsor, who said the statute would "protect our children by ending the gateway propaganda to this evil, 'Drag Queen Story Time.'"
The dissenters, as reported by Courthouse News Service, argued that the state "purposely created a mess-around-and-find-out statute to chill drag." Attorneys for the plaintiffs called the law a "Titanic-sized iceberg of chilling power against protected speech."
The majority was unmoved. The question before the court was not whether individual legislators disliked drag performances. It was whether a state can bar children from live shows featuring sexually explicit conduct. Eight judges said yes.
Florida's win at the Eleventh Circuit does not settle the issue nationally. Courthouse News Service reported that five states now actively ban minors from adult live performances: Florida, Arkansas, North Dakota, Tennessee, and Texas. But the legal landscape is uneven. In March, the Ninth Circuit upheld a decision blocking Montana from enforcing its own ban on drag story hours while a First Amendment challenge proceeds.
That split between circuits, the Eleventh upholding a state's authority, the Ninth blocking it, could eventually push the question toward the Supreme Court. For now, the Eleventh Circuit's ruling stands as the strongest federal appellate endorsement of a state's power to keep sexually explicit live performances away from children.
Florida has not been shy about pressing its legal positions in federal court. The state recently advanced a lawsuit against a major pediatrics group over youth gender procedures, and a separate Florida appeals court struck down a concealed carry ban on young adults as unconstitutional. The state's willingness to fight, and win, in court has become a pattern.
Mat Staver, founder of Liberty Counsel, the legal advocacy group that filed an amicus brief supporting the Florida law, issued a statement after the decision. Staver framed the outcome not as new ground but as a return to longstanding principle.
"The ruling by the full court of appeals reinforces the longstanding principles that children should be protected from obscenity."
He added that "the appeals court rightly ruled that states have a compelling interest in protecting children from obscene content and doing so fits squarely within constitutional boundaries."
Attorney General Uthmeier struck a similar note, calling the outcome a vindication after years of litigation. "After 3 years of litigation, the full court affirmed the constitutionality of Florida's ban on children attending sexualized drag show," he said.
Three years. That is how long it took to establish, in federal court, that a state can prevent adults from performing sexually explicit acts in front of children. The fact that it required an en banc reversal of two prior rulings tells you something about the judiciary's own internal divisions, and about how far some courts were willing to stretch the First Amendment to protect conduct that most parents would never allow their children to see.
Legal disputes over the boundaries of government authority continue to generate sharp divisions. In Virginia, sheriffs and prosecutors openly defied a state firearms ban weeks before it took effect, underscoring how contested enforcement of new laws has become across the country. And courts have not hesitated to impose consequences when government actors overstep, as when Florida paid a biologist $485,000 after she was fired over a social media post.
The Eleventh Circuit's ruling leaves several practical questions unanswered. Whether the law takes effect immediately or awaits further proceedings is unclear from the court's published opinion. The identities of the eight majority judges and the four who joined Rosenbaum's dissent beyond Rosenbaum herself have not been detailed in available reporting. And Hamburger Mary's, the Orlando restaurant that started the fight, has not issued a public response.
Whether the plaintiffs seek Supreme Court review will determine whether this remains a regional victory or becomes a national precedent. The circuit split with the Ninth Circuit makes a petition plausible.
But for now, the law stands. Florida passed a statute that says adults cannot perform sexually explicit acts in front of children. Two courts said no. The full Eleventh Circuit said yes. And the principle at stake was never complicated: children are not an appropriate audience for obscenity, no matter what costume it wears.
