By Kate Graham , Gender Justice & Health Equity Intern
Hamburger Mary's (Mary’s) in Orlando, Florida bills itself as an "open-air bar and grill for open-minded people," with drag shows as the restaurant's signature dinner theater. It welcomes everyone to its "family friendly" drag shows at typical mealtimes, with racier performances reserved for audiences over eighteen. "I love the pageantry. I love the camp. I love the silliness of it. My daughter is the same way. It's fun. It's a really good time," one patron told WESH, a Florida-based NBC affiliate station, in 2023. Drag is costumed, choreographed, theatrical performance expressive of gender, freedom of identity, and community, and like other forms of expressive conduct, it is protected by the First Amendment. Yet, states like Florida have passed laws trying to restrict or ban drag performance–this piece explores the various types of ways states are trying to do so, while examining pathways through which advocates can fight back.
In 2023, Florida passed the ‘Protection of Children Act’ (the “Act”). The law makes it a misdemeanor to "knowingly admit a child to an adult live performance,” a term that is defined to include “lewd conduct” and “the lewd exposure of prosthetic or imitation genitals or breasts” that appeals to "a prurient, shameful or morbid interest," and lacks "serious literary, artistic, political, or scientific value for the age of the child present." Although the bill never mentions drag queens by name, its legislative history makes its intended target clear. One of the bill’s sponsors, Republican State Representative Randy Fine, wrote on Facebook that the bill would criminalize "the gateway propaganda to…evil—Drag Queen Story Time." At the bill’s signing, Republican Governor DeSantis described it as being about "adult performances…like those drag shows."
Despite a Mary's patron insisting that "[t]here's nothing inappropriate" about the restaurant's drag shows, after the passage of the Protection of Children Act, the restaurant canceled its popular Sunday brunch show, barred minors from every other performance, and watched bookings plummet by 20 percent. On May 25, 2023, it sued the state under 42 U.S.C. § 1983, arguing the Act was unconstitutionally vague and facially overbroad. Mary's challenged the meaning of the term "lewd," as well as the validity of the entire Act, which put performers themselves at risk of criminal prosecution, even if they unwittingly performed with a minor in the room.
Florida is one of a growing list of states using the protection of children as a justification to regulate so-called "obscenity." Since 2023, six states have passed laws that claim to shield minors from so-called obscenity. Some name the art of drag performance explicitly; others regulate "adult-oriented" performances so loosely that drag gets swept in anyway. These bills followed years of organized agitation against drag. Between June 2022 and May 2023, the Institute for Strategic Dialogue counted 203 incidents of protests, threats, and harassment targeting drag events, driven by online accounts like Libs of TikTok and by groups including the Proud Boys, who alone targeted 60 drag events across 20 states.
It is crucial to upend the narrative that these laws are promulgated to protect the youth from “prurient” performances. Not only are drag bans wrong from a freedom of speech perspective, but the law assumes that heterosexuality and cisgender expression are the only forms of sexuality and gender identity appropriate for consumption by children.
Moreover, the First Amendment protects far more than political speech. The Supreme Court has long held that "[e]ntertainment, as well as political and ideological speech, is protected," and that "live entertainment, such as musical and dramatic works," falls within its guarantee. Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65 (1981). Indeed, some courts have found that drag is protected by the First Amendment. For example, On June 23, 2023, Clinton-appointee Judge Gregory Presnell blocked Florida’s law statewide, finding that it was “specifically designed to suppress the speech of drag queen performers." This was affirmed by a divided Eleventh Circuit panel in 2025. But on August 4, 2026, the full Eleventh Circuit, sitting en banc, vacated the injunction by an 8–5 vote. Writing for the majority, Trump-appointee Judge Andrew Brasher called the Act "a straightforward regulation of obscenity" and insisted that "[n]othing in the Act targets performances because they feature drag." In her dissent, Obama-appointee Judge Rosenbaum accused the court of embracing "mess-around-and-find-out ('MAFO') First Amendment jurisprudence." As she put it: "Here's the bottom line: the Act is a hammer. And under its vague language, law enforcement can treat lots of protected speech as nails."
The majority in Hamburger Mary’s Florida v. DeSantis relied on the Supreme Court's 2025 decision in Free Speech Coalition v. Paxton, which upheld Texas's age-verification requirement for pornography websites. Under the court’s reading, a law adapted for minors gets only rational-basis review, Constitutional law scholar Mary Anne Franks called Paxton “a momentous shift in First Amendment interpretation that will have far-reaching implications.” Within about a year, a decision about pornography websites became the doctrinal foundation for regulating drag brunch. Interestingly, neither Florida nor Texas bars children from viewing “sexualized” performances generally. Music videos and halftime shows, for example, are not likely to be targeted by this legislation. Lawmakers singled out drag because it presents a version of gender identity that is misaligned with their purported values.
Texas is another state that has targeted drag performances through anti-obscenity legislation–however, unlike Florida’s anti-drag statute which the Eleventh Circuit left in effect, Texas’s drag ban is currently enjoined after a Texas Judge held that it likely violated the First Amendment.
In 2023, Texas’ Republican-majority legislature passed SB 12, a bill designed to keep minors out of certain drag shows. The law broadly applies to any “visual performance” that is “nude” or involves “sexual conduct” and “appeals to the prurient interest in sex,” yet none of its critical terms are defined anywhere in Texas law. While lawmakers removed the direct reference to drag performers just before the end of legislative session, the bill's purpose did not change. As Republican Lieutenant Governor Patrick declared in 2023, the bill’s priority was to “push back against the radical left’s disgusting drag performances.” When Republican Governor Abbott signed SB 12, he posted a headline reading "Texas Governor Signs Law Banning Drag Performances in Public," adding: "That's right."
On August 3, 2023, a coalition of drag performers and producers represented by the ACLU of Texas sued. U.S. District Judge David Hittner first blocked the law with a temporary restraining order right before its September 1, 2023 effective date. On September 26th of that year, he permanently halted its enforcement after declaring the law unconstitutional. After years of appeals, Hittner struck down SB 12 a second time on August 25, 2026, holding it facially overbroad and unconstitutionally vague. He declared it an unconstitutional restriction on speech, after holding that the statute gave performers no fair notice of what is forbidden, and it leaves police and prosecutors to decide, case by case, which performances to punish. This ruling permanently barred Republican Attorney General Paxton from enforcing the ban. it. It is not unreasonable to read S.B. 12 and conclude that activities such as cheerleading, dancing, live theater, and other common public occurrences could possibly become a civil or criminal violation of S.B. 12.
Unfortunately, the movement behind these laws is unlikely to lose momentum in the wake of Texas’s decision. More likely, it will use Florida’s law as a legislative roadmap. Florida showed that a law aimed at drag can survive if it is framed as protecting children from obscenity, routed through the obscene-for-minors doctrine, and anchored to a narrow state-court definition of its key terms. Thus, Florida’s decision may serve to inform revised legislation introduced by anti-LGBTQ lawmakers in targeting what they deem obscene for purposes of stifling free expression.
Crucially, this strategy will likely advance beyond drag performance. The "protect the children from obscenity" framing runs through the Heritage Foundation's Project 2025, whose foreword describes pornography as "manifested today in the omnipresent propagation of transgender ideology and sexualization of children" and warns that "children suffer the toxic normalization of transgenderism with drag queens and pornography invading their school libraries." Obscenity law is being used against reproductive rights as well, demonstrating its elasticity, with the campaign against drag performers testing the limits of its constitutional stretch.
In effect, the laws treat queer and gender-nonconforming expression as inherently sexual, and therefore harmful to children, while treating the same conduct by straight, cisgender performers as harmless. This pattern makes clear that the use of children to advance an ideological agenda is, at best, a disingenuous legal strategy, and, at worst, deeply reprehensible. Drag ban legislation is another attempt to hold children out as an excuse for thinly veiled bigotry against the LGBTQ+ community. But for now, Florida's Act is enforceable. Hamburger Mary's has since moved to Kissimmee, limits its drag shows to audiences 18 and older, and is seeking Supreme Court review. In Texas, Attorney General Paxton called Judge Hittner's ruling "profoundly flawed" and vowed to appeal immediately.
Still, there is hope for the First Amendment. Advocates have led coordinated efforts to push back against drag bans and other limitations on queer expression, reasserting free speech protections throughout the country with joy and fervor. Some examples include local performers and advocates in Arkansas who attended legislative sessions in full drag, and lawyers who tirelessly and successfully litigated restrictions on drag performances at public universities. Free speech is best protected when its defenders speak loudly with one collective voice, one that shouts down the opposition with legal acuity, political strategy, and an unwavering commitment to human dignity.