ATLANTA, GA – Liberty Counsel filed an amicus brief to the Eleventh Circuit Court of Appeals in HM Florida-ORL, LLC v. Florida, a case where a Florida restaurant that hosts drag performances is challenging the state’s “Protection of Children Act,” which is currently blocked statewide by an injunction. Liberty Counsel is urging the appeals court to restore Florida’s 2023 law banning “adult live performances” in view of minors since the state has a compelling interest in protecting children from obscene, lewd, and sexual content. 

Signed by Governor Ron DeSantis as part of a bill package protecting children from radical ideologies in education, public spaces, and sports, Florida’s HB 1438 is devoted to protecting a child’s innocence from obscene material in public.

The measure defines “adult live performance” as “any show, exhibition, or other presentation in front of a live audience which, in whole or in part, depicts or simulates nudity, sexual conduct, sexual excitement, or specific sexual activities … lewd conduct … when … taken as a whole, is without serious literary, artistic, political, or scientific value for the age of the child present.” The law prohibits a person from knowingly admitting a minor to “adult live performances,” such as drag show events and gives state officials the ability to “fine, suspend or revoke licenses” if food or lodging establishments admit a child to an adult live performance. 

In 2023, the Hamburger Mary’s restaurant, which hosts regular drag performances, sued the state after it cancelled its so-called “family friendly” drag shows on Sunday where children were welcome to attend. Hamburger Mary’s alleged the “Protection of Children Act” was unconstitutionally vague and a content-based speech restriction. The federal district court agreed the law was overbroad and issued a preliminary injunction. In May 2025, the Eleventh Circuit Court of Appeals upheld the injunction finding the law’s definitions and “age-variable obscenity standards” that determine obscenity based on a child’s age, as too vague which could chill some protected speech. The case now proceeds toward an en banc hearing with the full court rehearing the case.

Liberty Counsel argues that the law was crafted under well-established and constitutional standards and tests for determining obscenity. The brief points out that the Florida Supreme Court has longstanding definitions related to obscenity and the appeals court could have consulted with Florida’s High Court to determine whether the law was vague before striking it down altogether.

Since the state and parents are “aligned” in most cases in protecting children from exposure to inappropriate sexual content, the law acts as a legitimate protective mechanism so the injunction should be lifted, concluded Liberty Counsel. 

Liberty Counsel Founder and Chairman Mat Staver said, “Florida’s ‘Protection of Children Act” shields children from obscene and lewd performances and the injunction against it should be reversed. Obscenity is not protected by the First Amendment, and by Hamburger Mary’s own testimony, its drag shows do not meet the state’s definition of obscenity so there is no credible threat of enforcement. Therefore, the restaurant’s voluntary cancellation of its drag shows in view of children does not constitute a First Amendment injury. The law should be restored to protect the innocence of children throughout the state.”

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