Hamburger Mary's just served Florida's anti-drag law a major legal defeat. The LGBTQ-friendly restaurant successfully challenged Governor DeSantis's controversial measure, with an appeals court upholding a statewide stop to its enforcement.
Florida Takes a Dragnet to 'Obscene' Performances
If you’ve been to a Hamburger Mary’s, you’ll know that while the name might sound generic, the chain is far from your typical greasy spoon. It’s a “gay-themed” restaurant and bar celebrated for its vibrant atmosphere and drag performances, with several locations sprinkled throughout the country. Unsurprisingly, the colorful eatery opened initially in San Francisco, and slowly blazed a franchise trail through the rest of the country. But when it decided to open a location in Florida, it probably wasn’t prepared for Governor Ron DeSantis’s conservative legislation campaigns.
In DeSantis’s legislative endeavors, drag performances have emerged as a controversial focal point since the enactment of partial bans in 2023.
The statute ostensibly aims to shield children from "obscene live performances," yet its undercurrents reveal a more pointed objective: to curtail the expressive liberties of drag performers. This intent is underscored by State Representative Randy Fine’s declarations about ending what he termed as "gateway propaganda" through events like “Drag Queen Story Time.”
At its core, Fla. Stat. § 827.11 prohibits knowingly admitting minors to an "adult live performance." The law defines such performances with broad strokes, encompassing any show that depicts or simulates nudity or sexual content deemed offensive by prevailing community standards for children present and lacking serious literary, artistic, political, or scientific value for them.
This legal framework authorizes the Florida Department of Business and Professional Regulation (DBPR) to levy fines and revoke licenses of establishments that contravene these provisions. Violators may also face prosecution under misdemeanor charges.
Law Proves to Be a Real Drag
The statute’s journey began amid a backdrop of heightened scrutiny over drag shows in Florida, particularly those perceived as accessible to young audiences. This scrutiny crescendoed with administrative actions against venues like Orlando’s Plaza Live for hosting drag events deemed inappropriate for minors—despite reports from undercover agents observing no lewd acts.
Presumably among many other establishments, Mary's found itself ensnared in the legal crosshairs. The establishment had long been a bastion of inclusivity and creativity, offering performances that ranged from comedic sketches to family-friendly drag shows on Sundays where children were welcome. However, with the ink of DeSantis's signature barely dry on the new law, it faced an existential threat. The statute's sweeping language was defined broadly enough to encompass much of what Hamburger Mary's offered.
Faced with potential fines and license revocations by the DBPR, Mary's was compelled to cancel its cherished family drag shows. This self-censorship was borne out of fear that any misstep could lead to punitive action under the new law. The chilling effect was immediate: bookings plummeted by twenty percent as families who had once flocked to enjoy these inclusive events found themselves shut out by legislative decree.
Recognizing that their very existence hinged upon challenging this encroachment on free expression, Hamburger Mary's took up legal arms in federal court. Soon after the law went into effect, they filed a “1983 lawsuit”, i.e., a suit under 42 U.S.C. § 1983, a statute that serves as a cornerstone for individuals seeking redress against government actors who have violated their federally protected rights.
Mary’s Sues the State
Hamburger Mary’s claimed that the new law sought to chill speech protected by the First Amendment based on content and messenger alike.
The burger joint contended that new laws targeting drag performances have been enacted with discriminatory intent, infringing upon their rights to free expression and equal protection under the law. The crux of the matter lies in the assertion that these laws were crafted not out of genuine concern for public welfare but rather as a means to suppress LGBTQ+ culture and stifle artistic expression. The plaintiffs argued that such regulations are thinly veiled attempts to marginalize communities that thrive on diversity and inclusivity.
The complaint also underscored the vagueness and overbreadth inherent in the statute’s very terms, such as "lewd conduct" and "child." The plaintiffs argued that such ambiguity left them vulnerable to arbitrary enforcement—an untenable position for any business reliant on creative expression.
District Judge Favors Drag Bars
Their plea for judicial intervention bore fruit when U.S. District Judge Gregory A. Presnell granted their request for a preliminary injunction against enforcing the statute pending trial.
He was probably sympathetic to the fact that, as Mary's pointed out, the establishments themselves were not the only ones suffering from the law. While joints like the hamburger restaurant did suffer economic harm as a consequence of the law, this was not only detrimental to their business but also to the broader community they serve. The establishment has long been a safe haven for individuals seeking acceptance and camaraderie, providing employment opportunities and contributing to local economies.
And the judge was probably also sympathetic to the fact that Hamburger Mary’s was more than a place for LGBTQ+ individuals: it was a place for children. One notable example was Mary’s regular programming of “Drag Queen Story Time.” As you can probably guess, it involved drag queens reading stories to children. The performers read children's books that celebrate diversity and encourage self-expression, stories with themes such as kindness, tolerance, and the importance of being true to oneself. Although critics contended that it introduced concepts they believed were inappropriate for young children, the event was popular across various communities.
The judge, moved by the work that places like Mary’s did for not only the general community but children specifically, granted the injunction not only for that particular restaurant, but for all establishments across the state of Florida. Though temporary, this allowed the restaurant and others like it to resume their cultural contributions without fear of retribution by the Florida government while awaiting further adjudication. Florida asked the U.S. Supreme Court to intervene on the matter of the injunction, but SCOTUS declined.
Eleventh Circuit Finds Law Unconstitutional
Secretary Melanie Griffin, representing the DBPR, appealed the District Court's decision to grant that injunction to the Eleventh Circuit in Atlanta. But in a thorough 127-page decision, the Eleventh Circuit sided with Hamburger Mary’s and upheld the district court's ruling.
The panel, led by Judge Rosenbaum, found that the statute was likely unconstitutional on its face due to its vague and overbroad nature. The court highlighted two primary issues. First, the statute used "lewd conduct" as a prohibited category but did not provide a specific definition. It thus failed the specificity requirement established in legal precedent (Miller v. California). Judge Rosenbaum wrote, “Florida’s history of arbitrarily enforcing other, similar laws against performances that are far from obscene only deepens our concerns."
Second, the court pointed out that the statute’s "age-variable" obscenity standard, a novel approach, was problematic. This standard purportedly aimed to tailor what is deemed obscene based on the age of each individual child present at a performance. The intention was to ensure that children are exposed only to material appropriate for their developmental stage. But there was no explicit criterion for evaluating age-appropriate content. As Judge Rosenbaum noted, Griffin’s own attorney couldn’t articulate the difference between performances that would be acceptable for eight-year-olds versus twelve-year-olds during oral argument. Calling for an individualized assessment for each child's maturity level without any guidelines created an impractical burden on venues and performers who would need to calibrate their content dynamically based on fluctuating audience demographics.
On top of that, the lack of clarity exacerbated concerns about discriminatory enforcement, as officials wielding broad discretion could impose penalties inconsistently or capriciously. The court emphasized that these provisions risked chilling protected speech by leaving too much discretion to enforcers and potentially burdening adults' access to non-obscene content. Furthermore, the court also noted that existing Florida laws already addressed many concerns about minors accessing harmful material without resorting to such broad prohibitions.
Decision Stirs Up Dissension
The appellate court thus affirmed the district court's decision to issue a statewide injunction to anyone in the state, which it deemed appropriate given the potential effect on speech beyond just the parties involved in litigation.
Judge Tjoflat wrote a dissenting opinion in which he argued for a narrower interpretation of "lewd conduct" that he argued was consistent with Miller.
He also suggested certifying questions about statutory interpretation to Florida's Supreme Court before deeming it unconstitutional. He lamented that the majority “passes over the tools meant to harmonize state and federal law, overlooks the state courts’ interpretive role, and leaps to constitutional invalidation prematurely.” Rosenbaum essentially responded that doing so would just “postpone a constitutional collision that, as we show, is unavoidable.”
Although Hamburger Mary’s and other drag establishments will be celebrating the ruling, the matter doesn’t seem to be settled yet. Florida governor's office spokesperson Brian Wright said that the ruling was an overreach by the federal court. “No one has a constitutional right to perform sexual routines in front of little kids. We will do everything possible to have this lawless decision overturned.” Sounds like an appeal to SCOTUS is forthcoming.
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