En Banc Eleventh Circuit Rejects Drag-Show Sponsor’s Challenge to Florida’s Protection of Children Act

By a vote of 8 to 5, the en banc Eleventh Circuit ruled today (in HM Florida-ORL, LLC v. Florida) that a restaurant that wanted to run supposed “family friendly” drag shows was not entitled to a preliminary injunction against Florida’s Protection of Children Act.

The Act, enacted in 2023, makes it a misdemeanor to “knowingly admit a child to an adult live performance.” It defines the term “adult live performance” to mean a live show that “depicts or simulates nudity, sexual conduct, sexual excitement, or specific sexual activities as those terms are defined in s. 847.001, lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts” when that show:

1. Predominantly appeals to a prurient, shameful, or morbid interest;
2. Is patently offensive to prevailing standards in the adult community of this state as a whole with respect to what is suitable material or conduct for the age of the child present; and
3. Taken as a whole, is without serious literary, artistic, political, or scientific value for the age of the child present.

The restaurant canceled its “family friendly” drag shows out of supposed fear that they would violate the Act.

Judge Andrew Brasher’s majority opinion rejects the restaurant’s facial overbreadth and vagueness claims. Here is a quick summary:

To succeed on a facial challenge on a First Amendment speech claim, a plaintiff must prove that the statute prohibits a substantial amount of protected speech relative to its plainly legitimate sweep.

The Act tracks the Miller v. California standard, as adapted for material obscene as to minors. It is a straightforward regulation of obscenity. (Pp. 14-19.)

The term lewd is not overbroad or vague. The Florida supreme court has authoritatively construed it to mean “gross indecency with respect to the sexual relations” and “the unlawful indulgence of lust, signifying that form of immorality which has a relation to sexual impurity.” (Pp. 19-23.)

For four reasons, the Act’s age-variable standard (turning on the “age of the child present”) does not render it vague or overbroad. (Pp. 23-26.)

(In a separate part of his opinion (pp. 9-12), Brasher ruled for a six-judge plurality that the district court “erred in granting an injunction that applied against anyone and everyone in Florida.)

In dissent, Judge Robin Rosenbaum, joined by four colleagues, contends that the Act “purposely created a mess-around-and-find-out statute to chill drag” and that it “is unconstitutionally vague by design.” Judge Brasher responds that the Act is consistent with a legislative intent to target drag shows that are obscene for children, not drag shows writ large” (as it does not apply to performances that are not obscene).

For those on either side who are inclined to overstate the court’s ruling, I will simply highlight that the restaurant remains free to host its “family friendly” drag shows if those shows do not depict or simulate the activities that the Act prohibits. If the Act is ever enforced against it, the restaurant may also challenge whether it is being applied in a manner consistent with the First Amendment.