A federal appellate court on Tuesday upheld a lower court ruling blocking enforcement of a 2023 Florida law designed to protect children from drag shows.

Writing for a 2-1 majority, Judge Robin S. Rosenbaum upheld the statewide injunction, opining that laws that restrict free speech “demand specificity” but that the underlying law was vague.

“Requiring clarity in speech regulations shields us from the whims of government censors. And the need for clarity is especially strong when the government takes the legally potent step of labeling speech ‘obscene,’ she wrote. “An ‘I know it when I see it’ test would unconstitutionally empower those who would limit speech to arbitrarily enforce the law. But the First Amendment empowers speakers instead.”

Hamburger Mary’s was an Orlando restaurant and bar that hosted drag shows including “family friendly” performances to which children were invited. Its parent company filed the underlying lawsuit against the administration of Gov. Ron DeSantis from enforcing the law. The business closed its Orlando location in June and is seeking to reopen in Kissimmee.

The 2023 law threatened fines, loss of operating licenses, and criminal penalties against any venues that expose any “child” to “lewd” performances, even if the child has parental consent. Hamburger Mary’s argued it had to engage in self-censorship and consequently was losing business despite 15 years of trouble-free performances.

Judge Gerald Bard Tjoflat issued a lengthy dissenting opinion.

“In litigation generally, and in constitutional litigation most prominently, courts in the United States characteristically pause to ask: Is this conflict really necessary?” he wrote.

“Here, the Majority fails to ask this question and, by skipping it, puts the First Amendment on a collision course with core principles of federalism and judicial restraint. Because this conflict was entirely avoidable, I respectfully dissent.”

Tjoflat took aim at the appellate court for its earlier ruling, in October 2023, upholding what he described as a “sweeping injunction” that prevented “yet another run-of-the-mill obscenity statute” from taking effect.

“On appeal of the injunction, we had two good options: we could apply ordinary tools of statutory construction to read the statute narrowly and avoid unnecessary constitutional conflict, or we could certify the unsettled state-law questions to the Florida Supreme Court, allowing the state’s highest court to speak first,” he wrote.

“ … Instead, the Majority chooses a third, unwarranted path: it reads the statute in the broadest possible way, maximizes constitutional conflict, and strikes the law down wholesale.”

The state asked the Supreme Court to lift the injunction while it appealed the underlying merits of Hamburger Mary’s challenge. In a November 2023 6-3 ruling the Supreme Court refused, with justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissenting.