The Volokh Conspiracy
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Florida Law Aimed at Drag Shows Struck Down
From yesterday's decision by Judge Gregory Presnell (M.D. Fla.) in HM Florida-ORL, LLC v. Griffin:
This case addresses the constitutionality of Florida Statute § 827.11. The state claims that this statute seeks to protect children generally from obscene live performances. However, … Florida already has statutes that provide such protection. Rather, this statute is specifically designed to suppress the speech of drag queen performers. In the words of the bill's sponsor in the House, State Representative Randy Fine: "…HB 1423…will protect our children by ending the gateway propaganda to this evil — 'Drag Queen Story Time.'" …
The statute defines [a prohibited] "adult live performance" as:
[A]ny show, exhibition, or other presentation in front of a live audience which, in whole or in part, depicts or simulates nudity, sexual conduct, sexual excitement, or specific sexual activities as those terms are defined in s. 827.001, lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts when it:
[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….
Plaintiff HM Florida-ORL, LLC … is a Florida for-profit business operating Hamburger Mary's Restaurant and Bar in Orlando. Plaintiff frequently presents drag show performances, comedy sketches, and dancing, including "family friendly" drag performances on Sundays where children are invited to attend….
Defendants argue that the Act's language and restrictions track those upheld in Ginsberg v. New York (1968) [which did ban the distribution of "obscene-as-to-minors" material, such as books and magazines, to minors -EV]. There are several significant distinctions, however, between the narrowly tailored statute in Ginsberg and Fla. Stat. § 827.11. First, the Supreme Court in Ginsberg "relied not only on the State's independent interest in the well-being of its youth, but also on the consistent recognition of the principle that 'the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.'" The prohibition against the sale to minors of material considered obscene for their age in the statute at issue in Ginsberg "d[id] not bar parents who so desire[d] from purchasing magazines for their children." The Act does not allow for the exercise of parental discretion, stating plainly that "[a] person may not knowingly admit a child to an adult live performance," explicitly foreclosing any defense based on a "bona fide belief of a child's consent." {The Court assumes this language refers to parental consent, as it is unclear how, for instance, a sixteen-year-old could "legally" consent to viewing a show they are criminally prohibited from seeing until the age of eighteen.}
Second, the statute in Ginsberg only applied to commercial transactions, as opposed to the apparent universal application of § 827.11 to anyone, anywhere— the statute does not define a "live performance," which could conceivably range from a sold-out burlesque show to a skit at a backyard family barbecue.
Third, and arguably most importantly, the Act here does not define several important terms: "live performance;" "child;" "lewd conduct;" and "lewd exposure of prosthetic or imitation genitals or breasts." {The Court consulted Fla. Stat. § 800.04—which covers "lewd or lascivious offenses"—to obtain guidance on the meaning of "lewd conduct." Alas, such offenses are defined only by their own terms. See, e.g., § 800.04(6) ("A person who…[i]ntentionally touches a person 16 years of age in a lewd or lascivious manner; or…[s]olicits a person under 16 years of age to commit a lewd or lascivious act …commits lewd or lascivious conduct."). The Florida Supreme Court's jury instructions offer an inkling into covered conduct, but likewise leave the reader with more questions than answers. According to these Instructions, "[t]he words 'lewd' and 'lascivious' mean the same thing: a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act."} These ambiguities, especially those pertaining to "lewd" conduct and exposure of prosthetics, represent a material departure from the established obscenity outline ….
{In Ginsberg, the statute at issue defined a minor as a person under seventeen, whereas here the Act presumably applies to all persons under eighteen. Reno, 521 U.S. at 865-66. Defendant argues that the flexibility inherent in § 827.11's reference to "suitable material or conduct for the age of the child present" allays concerns voiced by the Third Circuit in ACLU v. Ashcroft (3d Cir. 2003). On the contrary, this merely introduces an even more impossible standard for businesses and individuals to comprehend.}
Similarly indicative of the Florida Legislature's failure to narrowly tailor § 827.11 is its inevitable clash with the Florida "Parents' Bill of Rights" and other laws. In pertinent part, Fla. Stat. § 1014 states that: "All parental rights are reserved to the parent of a minor child in this state…including…[t]he right to direct the upbringing and the moral or religious training of his or her minor child." Id. § 1014.04(1)(b). This comports with other laws in Florida, such as § 847.013, which governs the exposure of minors to "harmful motion pictures, exhibitions, shows, presentations, or representations." That law prohibits the kind of obscene material described in Miller [v. California] and, indeed, the Act here, with the exception that it does not incorporate ambiguities like "lewd conduct" or "lewd exposure of prosthetic or imitation genitals or breasts." Importantly, however, that law does include a limiting provision which allows for a minor accompanied by his or her parents to attend any such exhibitions, regardless of the minor's age….
Unlike comparable statutes which target commercial activity and are more narrowly tailored in their scope to allow for parental discretion, specific age thresholds, and clearly defined terms, § 827.11 proscribes conduct universally and threatens to permit "a standardless sweep [which would] allow[] policemen, prosecutors, and juries to pursue their personal predilections." Including an exception for parental consent, as it did in § 847.013, is at least one less restrictive means through which the Legislature could have sought to further the state's compelling interest in protecting minors from obscene performances. Following the logic of Ginsberg and Reno v. ACLU, where such a fundamental consideration is found lacking, § 827.11 is not sufficiently narrowly tailored ….
A fully clothed drag queen with cleavage-displaying prosthetic breasts reading an age-appropriate story to children may be adjudged "wicked"—and thus "lewd"—by some, but such a scenario would not constitute the kind of obscene conduct prohibited by the statutes in cases like Miller. Moreover, the Act's focus on "prosthetic or imitation genitals or breasts" raises a host of other concerns not simply answered—what are the implications for cancer survivors with prosthetic genitals or breasts? It is this vague language—dangerously susceptible to standardless, overbroad enforcement which could sweep up substantial protected speech—which distinguishes § 827.11 and renders Plaintiff's claim likely to succeed on the merits.
I'm inclined to be skeptical of some of the court's analysis; for instance, if a cancer survivor has prosthetic genitals, I would think that they could be just as forbidden to display them to children in a sexually themed performance as the rest of us are as to our genitals. Nor is it clear to me that the statute's coverage of noncommercial performances makes a First Amendment difference. First Amendment protection for books, newspapers, movies, performances, and other speech generally doesn't turn on whether they are provided for money or for free; a freely distributed leaflet is no more and no less protected than the New York Times. And I'm not sure that the Florida statute that provides for parental rights affects the constitutionality of this statute; a new statute may permissibly carve out exceptions from an old one.
But on balance I do think that, if the statute indeed excludes parental consent, that's likely inconsistent with Ginsberg, which upheld a ban on distributing obscene-as-to-minors material to children in party because it supported the choices of parents:
The legislature could properly conclude that parents and others, teachers for example, who have this primary responsibility for children's well-being are entitled to the support of laws designed to aid discharge of that responsibility. Indeed, [the New York statute] expressly recognizes the parental role in assessing sex-related material harmful to minors according "to prevailing standards in the adult community as a whole with respect to what is suitable material for minors." Moreover, the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children.
