A federal appeals court ruled Tuesday to block a Florida law championed by Gov. Ron De Santis that would ban drag acts.

A divided three-judge panel from the U.S. Court of Appeals for the Eleventh Circuit determined that Florida’s “Protection of Children Act” is unconstitutionally vague, as it lacks clarity on which performances violate its criteria.

The legislation, enacted in May 2023 as Senate Bill 1438, prohibits any “adult live performance” that, “depicts or simulates nudity, sexual conduct, sexual excitement, or specific sexual activities,” along with “lewd conduct,” or “lewd exposure” that “predominantly appeals to a prurient, shameful, or morbid interest,” or is “patently offensive to community standards in the state as a whole regarding suitable material or behavior for children present.”

The panel majority, however, held that the law was simply too vague to withstand constitutional scrutiny. Writing for the panel, U.S. Circuit Judge Robin Rosenbaum said the law takes an “‘I know it when I see it’ approach to regulating expression” that provides “only vague guidance” as to which performances it actually prohibits. As such, the Barack Obama appointee wrote, “the Act wields a shotgun when the First Amendment allows a scalpel at most.” U.S. Circuit Judge Nancy Abudu, a Joe Biden appointee, joined Rosenbaum’s opinion.

Rosenbaum also took aim at the plethora of evidence that the law — though potentially applicable to a wide range of performances — was created with the intent of restricting drag shows. Rosenbaum pointed to statements by DeSantis, a Republican, at a press conference and to those of the bill’s sponsor to “protect our children by ending the gateway propaganda to this evil—‘Drag Queen Story Time.”

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At the heart of the case before the 11th Circuit is Hamburger Mary’s, a restaurant known for family-friendly drag performances held on Sundays that featured “no lewd activity … or anything inappropriate for a child.”

At other times, Hamburger Mary’s hosted other “drag-centric performances, comedy sketches, bingo, trivia, and dancing,” some of which came with a warning to patrons that they were “not suitable for children.”

Fearing penalties for violating the act, however, Hamburger Mary’s canceled its family drag shows and barred children from attending any of its other shows. As a result, Hamburger Mary’s lost twenty percent of its bookings.

Hamburger Mary’s then challenged the act in court under federal civil rights law on the grounds that it is unconstitutionally vague and overbroad, and because is a content-based speech regulation that fails strict scrutiny analysis in violation of the First and 14th Amendments. The district court granted a preliminary injunction temporarily blocking the enforcement of the law, and in a lengthy ruling Tuesday, the 11th Circuit agreed, finding that Hamburger Mary’s First Amendment challenge was likely to succeed on the merits.

The majority opinion noted that, “Florida has a history of efforts aimed at restricting drag shows and venues” that included revocation of liquor licenses and other administrative proceedings against several drag venues. The panel allowed that some performances might well be more appropriate for adults than children, but objected to the statute’s vagueness.

“Laws without discernible standards threaten enforcement that is ‘impermissibly based on content or viewpoint,”” reminded Rosenbaum.

Rosenbaum explained that case law has provided a road map for prohibiting obscenity, and that while “obscene content is always sexual … not all sexual content is obscene.” The line between the two “can be fuzzy,” wrote Rosenbaum, but “cannot hinge on gender based views of what representations are appropriate.” As an example, Rosenbaum wrote that a portrayal of a male nude in a magazine aimed at gay men cannot fairly be seen as more objectionable that portrayals of female nudes that society finds acceptable.

“Nor is the Constitution a prude,” wrote Rosenbaum. “[M]aterial may be crude, vulgar, or offensive without rising to the level of obscene.”

Further, noted the judge, the law fails to give any age-based guidance and draws no distinction between what would be appropriate for a 7-year-old versus a 17-year-old. Rosenbaum said that the act purports to be “the Goldilocks of speech regulation, ensuring each child can access only that speech that is ‘just right’” for their age,” but creates an “impossibly vague” standard by which to judge.

Rosenbaum even noted that Florida’s attorney was unable during oral arguments to explain the difference between performances that would be acceptable for a 12-year-old to attend, but not for an 8-year-old.

“If the secretary’s attorney can’t articulate the difference, it’s hard to imagine how we could expect performance proprietors to know what the act means,” the judge wrote.

Rosenbaum also commented that Florida’s anti-drag law went even further than the state’s alcohol prohibition. For drag shows, ignorance of a child’s age may not be raised as a defense — meaning that a person could be liable for admitting a minor to a drag show after mistakenly accepting a fake ID. However, the law is more lenient for a person mistakenly serving alcohol to a minor.

U.S. Circuit Judge Gerald Bard Tjoflat, a Gerald Ford appointee, penned a 45-page dissent in which he said the case should have been reviewed by the Florida Supreme Court to interpret the statute. Tjoflat criticized the majority for preemptively striking down the statute without having clear enough understanding as to how the statute functions in practice.

The 11th Circuit’s injunction will remain in place while the district court issues a final ruling on the merits. Florida has the option to request an en banc hearing before the full 11th Circuit, or to petition the U.S. Supreme Court to review the injunction while the underlying litigation proceeds.

Attorney Melissa Stewart, who represents Hamburger Mary’s, said in a statement Tuesday that she and her client were “thrilled that the First Amendment rights of all Floridians will remain protected” as the case proceeds.

“The court’s opinion recognizes this law for what it is — an egregiously unconstitutional attempt to censor the speech and expression of citizens,” said Stewart.

Florida Attorney General James Uthmeier responded to the ruling in post on X Tuesday.

“I stand by our law that protects kids from drag shows and other sexually explicit adult performances,” Uthmeier wrote. “The decisions out of Fort Myers and the Eleventh Circuit panel are both radical and wrong. My office will fight aggressively and swiftly to get these bad decisions overturned. Trans activists don’t have the First Amendment right to expose kids to their weird sexual fetishes.”

You can read the full ruling here.