Describing the law as “substantially overbroad,” a federal appeals court Tuesday upheld a preliminary injunction blocking a 2023 Florida law aimed at preventing children from attending drag shows.
A panel of the 11th U.S. Circuit Court of Appeals, in a 2-1 decision, backed the Central Florida venue Hamburger Mary’s in a First Amendment challenge to the law. The state appealed in 2023 after U.S. District Judge Gregory Presnell issued a preliminary injunction.
Tuesday’s majority opinion said that “by providing only vague guidance as to which performances it prohibits, the act (the law) wields a shotgun when the First Amendment allows a scalpel at most.”
“The Constitution demands specificity when the state restricts speech,” said the 81-page majority opinion, written by Judge Robin Rosenbaum and joined by Judge Nancy Abudu. “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.’ 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. Yet Florida’s Senate Bill 1438 (the law) takes an ‘I know it when I see it’ approach to regulating expression.”
But Judge Gerald Tjoflat, in a 45-page dissent, said the majority “reads the statute in the broadest possible way, maximizes constitutional conflict and strikes the law down wholesale.” He argued that the federal court should have sent the case to the Florida Supreme Court for help in interpreting the law — a step known as “certifying” a question to the state court.
“Instead, the majority sidesteps the very tools our system provides — tools designed to respect state authority, foster comity, and avoid unnecessary constitutional rulings,” Tjoflat wrote. “By casting aside those safeguards, today’s decision stretches this court beyond its proper role and departs from the humility and restraint that federal courts owe when state law is in question.”
The law, dubbed by sponsors the “Protection of Children” bill, sought to prevent venues from admitting children to adult live performances. It defines adult live performances as “any show, exhibition, or other presentation that is performed in front of a live audience, which, in whole or in part, depicts or simulates nudity, sexual conduct, sexual excitement or specific sexual activities, … lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts.”
It would allow regulators to suspend or revoke licenses of restaurants, bars and other venues that violate the law. Also, it would prohibit local governments from issuing public permits for events that could expose children to the targeted behavior.
While the law does not specifically mention drag shows, it came after Gov. Ron DeSantis’administration cracked down on venues in South Florida and Central Florida where children attended drag shows. It also came amid a series of controversial laws passed by Republicans in Florida and other states about transgender-related issues.
Tuesday’s majority opinion focused, in part, on the use of the words “lewd conduct” in the law. It said the term is overbroad and that Rosenbaum and Abudu “understand the act’s prohibition on depictions of lewd conduct to reach speech that is constitutionally protected, even as to minors.”
“The result is that venues like Hamburger Mary’s are prone to restrict minors from consuming speech that they are within their constitutional rights to access,” the majority opinion said. “Not only that, but the act’s sweep risks indirectly squelching adults’ access to nonobscene speech.”
Tjoflat, however, wrote that the law’s “enumeration of terms is not perfectly sorted by specificity, but its ordering still lends credence to the idea that ‘lewd conduct’ was intended merely as a catchall phrase, rather than a significant expansion of the statute’s scope.”
“Simply put, the question before us is not whether (the law) is stylishly and elegantly written,” Tjoflat wrote. “The question is whether the statute violates the Constitution, and our review requires us to engage with the statutory text, as written, in good faith and with the presumption that the Legislature did not intend to infringe on constitutional rights. By applying the aforementioned principles and reading the statute harmoniously, we can and should conclude that the statute reaches only speech that would be considered obscene (under a U.S. Supreme Court precedent).”
Hamburger Mary’s was located in Orlando at the time it filed the lawsuit but later announced plans to move to Kissimmee. It said in 2023 that it had run “family friendly” drag shows for 15 years.
Tuesday’s majority opinion said the fact that Hamburger Mary’s left the Orlando location after filing the challenge did not make the lawsuit moot. It said in “cases involving businesses that pause operations but may resume them, courts take a common-sense approach to evaluating mootness.”
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