A federal appeals panel has sided with a Florida restaurant in its challenge to a state law aimed at shielding children from viewing sexually explicit performances.
The law in question makes it a misdemeanor for businesses to knowingly admit a child to an “adult live performance” that “depicts or simulates nudity, sexual conduct, sexual excitement, or specific sexual activities.”
Under the law, businesses would face fines, suspension or loss of license, in addition to a $5,000 fine for the first violation and a $10,000 fine for each subsequent violation. It also prohibits government entities from issuing licenses for such venues.
While the statute does not explicitly reference drag shows, it applies to performances involving “lewd exposure of prosthetic or imitation genitals or breasts,” especially when such displays are deemed “offensive to prevailing standards in the adult community of this state as a whole” with respect to what is age-appropriate for children.
Hamburger Mary’s sued the state in 2023 shortly after Gov. Ron DeSantis signed the law. The restaurant alleged violation of First Amendment rights, saying it had been forced to bar minors from what it describes as “family-friendly” drag performances. A federal district court granted a preliminary injunction, which the state appealed.
Writing for the majority, Judge Robin Rosenbaum agreed with the lower court, saying the Florida law’s language wasn’t specific enough to meet existing legal standards.
“The Act prohibits children’s admission to ‘live performances’ that Florida considers obscene for minors. But by providing only vague guidance as to which performances it prohibits, the Act wields a shotgun when the First Amendment allows a scalpel at most,” Rosenbaum wrote in an 81-page majority opinion, joined by Judge Nancy Abudu.
The majority cited the U.S. Supreme Court’s 1973 decision in Miller v. California, which established a three-part test for defining obscenity. According to Rosenbaum, the Florida law fails to meet Miller’s requirement for precision in regulating obscene material.
“If Miller means anything, it is that an obscenity regulation’s sweep is only legitimate if it is specific. The Act’s ‘lewd conduct’ provision is the opposite,” Rosenbaum wrote. “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.”
In dissent, Judge Gerald Bard Tjoflat said the law is neither vague nor overly broad, but that the majority “reads the statute in the broadest possible way, maximizes constitutional conflict, and strikes the law down wholesale.”
Instead of outright declaring the law as vague, Tjoflat suggested the case should have been referred to the Florida Supreme Court for clarification on how the statute ought to be interpreted.
DeSantis’s office condemned the ruling, calling it an “egregious overreach by a federal court” and vowed to challenge the decision.
“No one has a constitutional right to perform sexual routines in front of little kids,” a spokesperson for the governor said. “We will do everything possible to have this lawless decision overturned.”
Justice Brett Kavanaugh issued a statement explaining the court’s denial, noting that the issue raised by the state was unlikely to merit the high court’s review at this early stage of litigation. He was joined by Justice Amy Coney Barrett, except for one footnote about procedural grounds for declining the request.
