Florida law with 'Goldilocks' approach to banning minors at drag shows is overbroad, 11th Circuit says
A Florida law that bans admission of minors to live performances depicting “lewd conduct” is likely unconstitutional because it provides only “vague guidance” on prohibited conduct, the 11th U.S. Circuit Court of Appeals at Atlanta ruled Tuesday.
In a 2-1 decision, the 11th Circuit upheld a preliminary injunction preventing enforcement of the law throughout the state.
At issue is the 2023 Protection of Children Act, which makes it a misdemeanor in Florida to knowingly admit youths younger than age 18 to adult live performances, including shows with “lewd conduct or the lewd exposure of prosthetic or imitation genitals or breasts.” Backers of the law said it would ban children from drag shows.
Establishments that admit minors to such adult shows can be fined or have their eating, drinking or lodging licenses revoked. Hamburger Mary’s Restaurant and Bar, which had presented “family friendly” drag performances on Sundays, sued to overturn the law under Section 1983 of the Civil Rights Act.
The appeals court said the law is facially overbroad under the First Amendment for two reasons. The first is its vague restrictions on certain depictions of lewd conduct. The second is its adoption of an age-variable standard, which bans admitting minors to adult shows that are patently offensive or lack serious value “for the age of the child present.”
11th Circuit Judge Robin Rosenbaum wrote the majority opinion. The lewd conduct provision is “a prosecutorial skeleton key” that allows police officers, judges and juries to “unlock penalties and punish speech” on a subjective basis, Rosenbaum wrote.
The age-variable standard is “legally innovative—and constitutionally problematic,” Rosenbaum said.
“On paper, the act is the Goldilocks of speech regulation, ensuring each child can access only that speech that is ‘just right’ for their age,” the appeals court said. “Seventeen-year-olds have access to speech that would be obscene as to 16-year-olds but not 18-year-olds; 16-year-olds can see content that would be obscene as to 15-year-olds but not 17-year-olds; and so on. But the act’s strategy to avoid overbreadth problems introduces other ones. The age-by-age maturity test is impossibly vague.”
Senior 11th Circuit Judge Gerald Tjoflat dissented.
The majority could have read the statute narrowly to avoid constitutional conflict, or it could have certified unsettled questions to the Florida Supreme Court, Tjoflat said.
“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,” Tjoflat wrote.
Bloomberg Law and Law.com covered the opinion, while the Volokh Conspiracy published highlights and How Appealing linked to the opinion.
See also:
Florida’s ban on kids attending drag shows remains blocked after Supreme Court declines to intervene
Write a letter to the editor, share a story tip or update, or report an error.
