TALLAHASSEE 鈥� Describing the law as 鈥渟ubstantially overbroad,鈥� 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鈥檚 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鈥檚 majority opinion said that 鈥渂y 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.鈥�
鈥淭he Constitution demands specificity when the state restricts speech,鈥� said the 81-page majority opinion, written by Judge Robin Rosenbaum and joined by Judge Nancy Abudu. 鈥淩equiring 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 鈥榦bscene.鈥� An 鈥業 know it when I see it鈥� test would unconstitutionally empower those who would limit speech to arbitrarily enforce the law. But the First Amendment empowers speakers instead. Yet Florida鈥檚 Senate Bill 1438 (the law) takes an 鈥業 know it when I see it鈥� approach to regulating expression.鈥�
But Judge Gerald Tjoflat, in a 45-page dissent, said the majority 鈥渞eads the statute in the broadest possible way, maximizes constitutional conflict and strikes the law down wholesale.鈥� He argued that the federal court should have sent the case to the Florida Supreme Court for help in interpreting the law 鈥� a step known as 鈥渃ertifying鈥� a question to the state court.
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鈥淚nstead, the majority sidesteps the very tools our system provides 鈥� tools designed to respect state authority, foster comity, and avoid unnecessary constitutional rulings,鈥� Tjoflat wrote. 鈥淏y casting aside those safeguards, today鈥檚 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.鈥�
The law, dubbed by sponsors the 鈥淧rotection of Children鈥� bill, sought to prevent venues from admitting children to adult live performances. It defines adult live performances as 鈥渁ny 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, 鈥� lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts.鈥�
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鈥檃dministration 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鈥檚 majority opinion focused, in part, on the use of the words 鈥渓ewd conduct鈥� in the law. It said the term is overbroad and that Rosenbaum and Abudu 鈥渦nderstand the act鈥檚 prohibition on depictions of lewd conduct to reach speech that is constitutionally protected, even as to minors.鈥�
鈥淭he result is that venues like Hamburger Mary鈥檚 are prone to restrict minors from consuming speech that they are within their constitutional rights to access,鈥� the majority opinion said. 鈥淣ot only that, but the act鈥檚 sweep risks indirectly squelching adults鈥� access to nonobscene speech.鈥�
Tjoflat, however, wrote that the law鈥檚 鈥渆numeration of terms is not perfectly sorted by specificity, but its ordering still lends credence to the idea that 鈥榣ewd conduct鈥� was intended merely as a catchall phrase, rather than a significant expansion of the statute鈥檚 scope.鈥�
鈥淪imply put, the question before us is not whether (the law) is stylishly and elegantly written,鈥� Tjoflat wrote. 鈥淭he 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).鈥�
Hamburger Mary鈥檚 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 鈥渇amily friendly鈥� drag shows for 15 years.
Tuesday鈥檚 majority opinion said the fact that Hamburger Mary鈥檚 left the Orlando location after filing the challenge did not make the lawsuit moot. It said in 鈥渃ases involving businesses that pause operations but may resume them, courts take a common-sense approach to evaluating mootness.鈥�
