HM Florida-Orl, LLC v. Griffin

  • Latest Update: Feb 26, 2026
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Summary

This case arises out of Florida’s attempt to prohibit minors from viewing drag shows that officials might deem “lewd” in some way, without adhering to the accepted constitutional test for obscenity as to minors. The 2023 Florida Legislature’s SB 1438 (the “drag ban”) directly infringes upon minors’ First Amendment rights by purporting to broadly proscribe their ability to view drag performances that, though they might appear shocking or inappropriate in the eye of a government censor, are not constitutionally obscene for them. In May 2023, plaintiff’s HM Florida ORL LLC, which operates the drag-themed restaurant and bar Hamburger Mary’s in Orlando, sued to enjoin enforcement of the drag ban on the grounds that it violates the First Amendment because it restricts protected speech based on the identity of the speaker and is impermissibly vague and overbroad.

The next month, a judge in the Middle District of Florida granted plaintiff’s motion for a preliminary injunction, declaring it substantially likely that HM Florida ORL LLC would succeed on the merits of its First Amendment claims. The opinion explained that Florida’s drag ban was a facially content-based regulation on speech that likely failed strict scrutiny because the state had overshot the least restrictive means necessary to achieve its purported goal. The district court cited a wide range of conduct that might constitute a “live performance” under the drag ban. Moreover, the court held that the drag ban’s failure to define key phrases such as “lewd conduct” likely rendered it void for vagueness. The government appealed the injunction and sought to have it stayed pending appellate review, which both the Eleventh Circuit and Supreme Court declined to do.

In January 2024, the ACLU filed an amicus brief in the Eleventh Circuit concerning the drag ban. The brief contended that minors have a constitutional right to attend drag performances and that the drag ban’s expansion beyond the constitutional test for obscenity for minors is unconstitutionally overbroad and unconstitutionally vague. In May 2025, a three-judge appellate panel upheld the lower court’s decision. In December 2025, the full court decided to rehear the case en banc.

WHAT'S AT STAKE

Under S.B. 1438, minors are not permitted to access any live performance containing “lewd conduct” as determined by the state. The law requires establishments to abide by the state’s restrictions or risk revocation of their business license. S.B. 1438 unfairly targets drag performances and disrupted the business of host establishments by creating an environment of fear and uncertainty that led them to cancel shows and turn away customers. The vagueness of the law went beyond constitutional tests for obscenity for minors and infringed on their First Amendment rights. This lawsuit aims to protect Florida’s minors from overbroad infringements on their right to have access to various forms of speech.

The Latest: The law is in effect while the full Eleventh Circuit reconsiders the case. The State’s opening en banc brief was filed on February 25, 2026. Oral argument will be held in Atlanta in June 2026.