A Divided Full Eleventh Circuit Cleared Florida to Enforce Its Drag-Show Law. The Case Is Not Over.
The full U.S. Court of Appeals for the Eleventh Circuit ruled 8-5 on Tuesday, August 4, 2026, that the Orlando restaurant Hamburger Mary’s is unlikely to succeed on its First and Fourteenth Amendment challenge to Florida’s 2023 Protection of Children Act. The court vacated the preliminary injunction that had blocked the law — in full, not in part — and sent the case back to the district court.
That clears the state to enforce the statute while the underlying litigation continues. It is a win for Gov. Ron DeSantis (R-FL), who signed the bill in May 2023, and for Attorney General James Uthmeier (R-FL), whose office defended it through three years of appeals.
It is also narrower than the celebrations suggest. What follows is the actual holding, what the statute says and does not say, the five-judge dissent arguing the law is deliberately unclear, and the part of the record both sides tend to skip — a 2023 Supreme Court order in this same case that cut the other way.
- 8-5 the en banc vote holding the challengers unlikely to succeed on the merits, reversing the court's own three-judge panel — Fox News; Florida Phoenix
- Vacated in full the preliminary injunction was not narrowed but eliminated, and the case remanded — the state may enforce statewide now — News4Jax; Fox News
- 1st-degree misdemeanor the criminal exposure for knowingly admitting a minor to an adult live performance obscene as to minors — Chapter 2023-94, Laws of Florida; News4Jax
- $5,000 / $10,000 state fines for a venue's first and subsequent offenses, on top of possible suspension or revocation of its liquor or business license — News4Jax
- 3 years from DeSantis signing the bill in May 2023 to the en banc ruling in August 2026 — and the merits case still isn't finished — The Daily Wire; Tampa Bay Times
Judge Andrew Brasher, a Trump nominee, wrote for the majority in HM Florida-ORL, LLC v. Secretary of the Florida Department of Business and Professional Regulation, No. 23-12160. His central holding is one sentence long: “The act is a straightforward regulation of obscenity.” If that characterization is right, the constitutional analysis gets much easier, because obscenity as to minors has never enjoyed full First Amendment protection. Brasher added that “preventing children from attending adult live performances obscene for them is rationally related to Florida’s interest in safeguarding the well-being of minors.”
The second half of the opinion is arguably the more consequential one, and it has nothing to do with drag. Brasher wrote that “the district court lacked authority to impose a universal injunction that prevented the enforcement of the Act against everyone in Florida.” That is the nationwide-injunction fight that has been running through the federal courts for years, applied here at the state level: a single restaurant sued, and a single district judge froze the statute for every venue in Florida. The en banc court said that remedy exceeded the judge’s power regardless of who was right on the merits.
Two judges in the majority declined to go that far. Britt Grant and Kevin Newsom, also Trump nominees, joined the result but wrote that they would have decided only the First Amendment question and left the scope-of-injunction issue alone. That split matters for how broadly the ruling gets cited later, and it is a reminder that an 8-5 headline can conceal real disagreement inside the winning column.
Senate Bill 1438, enacted as Chapter 2023-94, Laws of Florida, never uses the word “drag.” It makes it a first-degree misdemeanor to knowingly admit a minor to an “adult live performance” that depicts or simulates nudity, sexual conduct, sexual excitement, or the lewd exhibition of prosthetic or imitation genitals or breasts, and that is obscene as to the age of the child admitted. Separately, the Department of Business and Professional Regulation can fine a venue $5,000 for a first offense and $10,000 for later ones, and can suspend or revoke its liquor or business license.
The gap between the text and the politics is the whole dispute. DeSantis and the bill’s sponsors described the measure publicly as aimed at drag performances; the statute itself is written in the language of obscenity law, which is content-neutral on its face and applies to any live performance meeting the definition. Defenders say that is careful drafting. Critics say it is a label swap that lets the state reach the target it named out loud while claiming in court that it did no such thing.
The second complication is the sliding standard. Because obscenity is measured against the age of the minor admitted, what is lawful for a fifteen-year-old may not be lawful for an eight-year-old in the same room at the same show. At the June 2, 2026 oral argument in Atlanta, Judge Newsom put the practical problem to the state directly: “It seems a lot to ask of the proprietor or bouncer to know that based on the content of tonight’s show the age cutoff is eight.” He voted with the majority anyway.
Does: Vacate the statewide preliminary injunction in full; hold that Hamburger Mary’s is unlikely to succeed on the merits; allow Florida to enforce the Protection of Children Act now; remand to the district court.
Doesn’t: Finally decide the statute’s constitutionality; end the lawsuit; resolve the vagueness questions the dissent raised; foreclose a petition for rehearing or Supreme Court review.
Judge Robin Rosenbaum, an Obama nominee, wrote the principal dissent for herself and four colleagues, and she did not write it gently. “Today our Court embraces mess-around-and-find-out (‘MAFO’) First Amendment jurisprudence,” she opened — her term for a rule that leaves a speaker to guess where the legal line is and discover the answer only after the state charges him. Her charge against the statute was blunter still: “Florida purposely created a mess-around-and-find-out statute to chill drag.”
“Today our Court embraces mess-around-and-find-out ('MAFO') First Amendment jurisprudence.”
Judge Robin Rosenbaum, dissenting, joined by four judges — Aug. 4, 2026
The dissent’s objection is not that Florida may never protect children from sexually explicit performances. It is that a venue owner facing criminal charges and the loss of a liquor license needs to know in advance what is prohibited, and that this law does not tell him. Rosenbaum pressed the point at oral argument, asking Florida Solicitor General David Dewhirst, who argued the case for the state: “Can you provide us any guidance whatsoever? Tell us how to do it.”
That is the same reasoning the court’s own three-judge panel adopted a year earlier. On May 13, 2025, that panel affirmed the injunction on the merits and described the statute as “a shotgun when the First Amendment allows a scalpel at most.” The full court granted rehearing en banc in December 2025, which automatically vacated that opinion, heard argument on June 2, 2026, and reversed course. LGBTQ advocacy groups reading the outcome, including The Advocate, argue the practical effect is exactly the chilling the dissent describes: venues cancel all-ages shows rather than litigate the meaning of “lewd” from a defendant’s chair.
There is a piece of this case’s history that complicates the clean win-loss framing on both sides. In November 2023, Florida went to the Supreme Court on the emergency docket in Griffin v. HM Florida-ORL, LLC, No. 23A366, asking the justices to narrow the injunction so the law could be enforced against everyone except Hamburger Mary’s. The Court declined, 6-3.
Justices Thomas, Alito, and Gorsuch would have granted the state relief. Justice Kavanaugh, joined in substance by Justice Barrett, concurred in the denial on narrower procedural and overbreadth-doctrine grounds rather than endorsing the injunction on the merits. As Reason’s Volokh Conspiracy noted this week, that lineup sits awkwardly beside where the en banc Eleventh Circuit landed in 2026 — a federal appeals court granting the state relief that two justices in the middle of the Supreme Court had declined to grant three years earlier, on a record that had not fundamentally changed.
None of that means Tuesday’s ruling is wrong. Emergency-docket orders resolve who bears the risk of error while a case proceeds, not the merits, and the doctrinal questions Kavanaugh flagged in 2023 are precisely the ones the en banc court spent three years working through. But it does mean the case has a live path to further review, and that the eventual audience for these opinions may not be the Eleventh Circuit at all.
As of August 4, 2026, the Protection of Children Act is enforceable across Florida. The injunction is gone, not narrowed, and the Department of Business and Professional Regulation’s licensing penalties are available to the state again. What has not happened is a final ruling that the statute is constitutional. The case returns to Judge Gregory Presnell’s court — a Clinton nominee — in the Middle District of Florida for further merits proceedings, and the challengers may still seek rehearing or Supreme Court review — no such filing has been announced.
Huge victory for our team at the 11th Circuit! After 3 years of litigation, the full court affirmed the constitutionality of Florida's ban on children attending sexualized drag shows. Great work by Solicitor General Dave Dewhirst, who argued the case on the state's behalf!
Uthmeier’s post overstates the holding slightly — the court decided likelihood of success at the preliminary-injunction stage, not the statute’s final constitutionality — but the practical outcome he is celebrating is real. DeSantis, in a statement reported by News4Jax and The Epoch Times, framed it as a fight the state should never have had to wage: “This shouldn’t even be controversial, yet our law protecting kids required us to fend off lawsuits and win a case before a divided appellate court.”
Gov. Ron DeSantis (R-FL) — signed SB 1438 in May 2023 and described it publicly as aimed at drag performances.
AG James Uthmeier (R-FL) — defended the statute through the en banc appeal; Solicitor General David Dewhirst argued it on June 2, 2026.
Judge Andrew Brasher — author of the 8-5 majority. Judges Britt Grant and Kevin Newsom joined the result but would have reached only the First Amendment question. All three are Trump nominees.
Judge Robin Rosenbaum (Obama nominee) — wrote the principal dissent for five judges. Melissa Stewart argued for Hamburger Mary’s.
Florida can enforce its drag-show law today because eight federal appellate judges concluded the challengers probably lose, not because a court has finally said the statute is constitutional. Five judges think the law is written to be unguessable on purpose. Both propositions are now on the record, and the district court still has the case.
Last updated August 5, 2026