On Wednesday, August 5th, 2026, the Eleventh Circuit Court of Appeals issued a majority opinion authored by Judge Andrew Brasher and signed by eight judges, upholding the constitutionality of Florida's Protection of Children Act in the case HM Florida-ORL, LLC v. HM Florida.

The Act criminalizes knowingly admitting a child to an "adult live performance," defined as a live performance depicting nudity, sexual conduct, sexual excitement, specific sexual activities, lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts. Additionally, the performance must meet three criteria: it predominantly appeals to a prurient, shameful, or morbid interest; it is patently offensive to prevailing standards in the adult community of Florida regarding suitability for the child's age; and it lacks serious literary, artistic, political, or scientific value for the child's age.

The court held that the law is not unconstitutionally overbroad because it aligns with the "obscenity-as-to-minors" standard previously validated by the U.S. Supreme Court and the Eleventh Circuit. This standard permits states to restrict minors' access to works that, as a whole and under contemporary community standards, appeal to minors' prurient interests, depict sexual conduct in a patently offensive way for minors, and lack serious value for minors. Such restrictions are subject only to rational-basis review and do not trigger heightened First Amendment scrutiny, even if the speech is not obscene for adults.

Hamburger Mary's, a party in the case, argued that statutes approved in prior cases like Ginsberg and Webb were different because they drew a clear age line between 17- and 18-year-olds. The court rejected this argument.

The court also dismissed claims that the law was unconstitutional based on the Legislature's alleged intent to disincentivize non-obscene drag shows, noting that the law does not apply to non-obscene performances.

The majority opinion emphasized that the ability of citizens and law enforcement to distinguish what is permissible for adults versus 17-year-olds does not imply they can discern permissible content across numerous age categories.

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