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Florida Ban on "Depict[ing] or Simulat[ing] … Lewd Conduct" in Performances Where Children Are Present Struck Down
A short excerpt from the long opinion today in HM Florida-ORL, LLC v. Governor, decided by Judge Robin Rosenbaum, joined by Judge Nancy Abudu:
Justice Potter Stewart famously offered a non-definition of obscenity: "I know it when I see it." Jacobellis v. Ohio (Stewart, J., concurring). Many know Justice Stewart's quip. But it's not, in fact, the law.
The Constitution demands specificity when the state restricts speech. Requiring 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 "obscene." An "I know it when I see it" test would unconstitutionally empower those who would limit speech to arbitrarily enforce the law. But the First Amendment empowers speakers instead.
Yet Florida's Senate Bill 1438 (the "Act") takes an "I know it when I see it" approach to regulating expression. 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. And Florida's history of arbitrarily enforcing other, similar laws against performances that are far from obscene only deepens our concerns. We therefore hold that the Act is likely unconstitutional on its face and affirm the lower court's injunction against its enforcement….
Secretary Griffin argues that the Act dutifully observes [the] requirements [in Miller v. California (1973), the leading precedent on obscenity] so it reaches only unprotected speech. The Act, she argues, "specifically defines" the activities that constitute an adult live performance: anything "depict[ing] or simulat[ing] nudity, sexual conduct, sexual excitement, or specific sexual activities as those terms are defined in [Section] 847.001, lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts."
She continues, asserting the Act then bars children's admittance to performances that feature such representations and meet all three prongs of the Miller test: appeal to the prurient interest, patent offensiveness, and the lack of serious value. And, Griffin says, the statute adjusts the standards for the second and third prongs of the Miller test to be "for the age of the child present." That is, prohibited performances must lack serious "value for the age of the child present" and be "patently offensive … with respect to what is suitable material or conduct for the age of the child present." …
But the court concluded that the term "lewd conduct" goes beyond the boundaries of Miller, in part because it's not well-defined:
Miller is clear that when a state seeks to punish speech as obscene, it must "specifically define[ ]" the forbidden depictions. One of the Miller Court's example definitions—"patently offensive representations or descriptions of … lewd exhibition of the genitals"—proves the point. "Lewd exhibition of the genitals" obviously belongs to the larger category of "lewd conduct." So if "lewd conduct" were sufficiently specific to meet Miller's test, the Court would have had no reason to provide a more precise description. Instead, Miller shows that states can't define obscenity by taking a broad descriptor like "lewd" and applying it to the entire universe of "conduct." Doing so would eviscerate Miller's "specific definition" requirement and amount to little more than an "I know it when I see it" test for obscenity, which Miller rejects….
[T]he Act's extensively detailed prohibitions—of nudity, sexual conduct, and so on—essentially exhaust the types of "hard core" depictions that Miller described as potentially obscene. That means the Act's bar on "depict[ions of] … lewd conduct" must mean something different than the Miller-prohibited depictions, or it would be "mere surplus-age." And so we assume it does mean something different.
But neither Miller and its progeny nor the Florida materials Griffin presents even suggest a way to interpret "lewd conduct" that is distinct from the other prohibited depictions but accords with Miller's specificity requirement….
[Neither] the Secretary [nor] the dissent … provide a single example of "lewd conduct" that might be constitutionally deemed obscene (at least for minors) but is not already covered by the Act's other terms. Even the Secretary waffles on this point, arguing only that "it is unclear whether" the Act's other terms "extend[ ] to the full reach of what is regulable as obscenity." Yet Florida's determination that performances like Jimbo's are "lewd" suggest the state views that term broadly indeed….
The court also concluded that "The Act's 'age-variable' obscenity standard is overbroad":
Dating back to Ginsberg v. New York (1968), "harmful to minors" statutes have typically defined which content is harmful with reference to minors as a whole. For example, Florida law generally defines "harmful to minors" as that which "is patently offensive … for minors" and "is without serious value … for minors."
Of course, "minors" are not an undifferentiated group. What is "harmful" for a child just learning to read may be very different than what is obscene for an adolescent on the edge of adulthood.
This poses two related challenges for "harmful to minors" statutes. The first is interpretive: when a statute regulates material that lacks serious value and is patently offensive "for minors," which minors are the reference group? The second relates to overbreadth: if the obscenity standard for minors is based on the youngest group of children or the average child across all ages, it will cover much more material, and older minors could lose access to harmless material on account of younger children's sensitivities.
This problem and related overbreadth issues led the Supreme Court in Virginia v. American Booksellers Association, Inc. (1988), to ask Virginia's high court to clarify the state's statute barring the display to juveniles of material "harmful to minors." The Virginia Supreme Court interpreted the state's statute narrowly to mitigate the overbreadth threat. Speech had "serious value" for minors, the court said, if it "has serious value for a legitimate minority of juveniles, … consist[ing] of older, normal (not deviant) adolescents." …
[This] interpretation of typical "harmful to minors" statutes protects older children's rights. But it means that younger children may encounter material suitable for kids a few years older.
Responding to this potential underinclusion, the Act takes a different (and to our knowledge, novel) approach to protecting minors from harmful material. The Act adjusts the Miller standards for what is "patently offensive" and what has "serious value" to be "for the age of the child present." 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. Seventeen-year-olds have access to speech that would be obscene as to sixteen-year-olds but not eighteen-year-olds, sixteen-year-olds can see content that would be obscene as to fifteen-year-olds but not seventeen-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. At oral argument, we asked the Secretary's counsel how to determine what might be acceptable for a twelve-year-old but not an eight-year-old. Even when pressed, he could provide no guidance and instead simply acknowledged that there were "edge cases." Of course, most laws have edge cases, and standard "harmful to minor" statutes are no exception. But as interpreted in Webb, these have only one "edge": the line between minority and adulthood.
In contrast, the Act has, at a minimum, eighteen (and perhaps as many as 6,575). It asks speech purveyors to make judgements about what is appropriate for children year-by-year (or maybe month-by-month, week-by-week, or day-by-day—the Act is not clear). This results in all the usual harms of statutory vagueness. The Act will chill more speech relative to the typical "harmful to minors" statute that Webb contemplated: rather than risking a chill for only speech at the border of adult obscenity, the Act threatens speech that might clearly be appropriate for seventeen-year-olds (so not "harmful to minors" under a statute like the one in Webb) but questionable for children of younger ages. Worse still, the Act's vague standards create ample room for discriminatory enforcement.
Not only that, but which speech is appropriate for children of different ages under the Act is left extraordinarily vague. The Act provides no guidance. That contrasts mightily with other instances when Florida has identified content it deems appropriate for children based on their age: grade-level educational standards. Take Florida's grade-by-grade standards for K–12 education. They're extraordinarily detailed, running to 229 pages—and that's just for math class. But here, the Act does little to teach speakers, performance venues, parents, or anyone else who might "admit" a child to a performance what is acceptable for children of any given age.
Consider this example: Miami is home to an historic, thirty-five-foot-tall billboard for Coppertone sunscreen, which features the brand's historic logo—a girl, perhaps age seven, or so, with a dog pulling at her swimsuit, revealing her pale posterior and its contrast with her tanned skin. Clearly, some have objected to this cheeky logo: Coppertone once removed the "Coppertone girl" from the brand's logo, then reinstated her with partial, then full coverage of her backside. Would a depiction like the Coppertone logo be "patently offensive" for a five-year-old? An eight-year-old? How about a seventeen-year-old? We don't know, and we don't think the burden should be on speakers to find out.
We do not decide today whether minors' First Amendment rights and the speech that may be deemed obscene for them is the same at all ages. Obviously, children mature as they age (at least, their parents hope so). Many laws distinguish between children based on their age. Driving privileges or children's ability to work often phase in gradually over the course of adolescence. Some privileges, like buying alcohol, are age-restricted even among those who are at least eighteen.
But these rules provide very clear guidance as to what they permit, when. The Act doesn't, even as it regulates speech, where "standards of permissible statutory vagueness are strict." The resulting uncertainty as to what is permissible for children of different ages creates an obvious chilling effect that increases the Act's effective breadth.
True, the distinction between seventeen and eighteen—the one we enshrined in Webb—is not inherently less arbitrary or less vague than the distinction between any other two ages. But much of our law and culture are oriented around the singular age of majority. It is one thing to have a line between obscenity for adults and for minors: it's just one line, drawn in parallel to the countless social norms and legal rights that distinguish between adults and children. This rich social context gives meaning and relative clarity to the line between that which is within minors' rights to access and that which is "adults-only." …
Judge Bard Tjoflat dissented; for more details, see pp. 82-127 of this PDF.
Brice Moffatt Timmons and Craig A. Edgington (Watson Burns, PLLC), Gary Steven Israel, (Gary S. Israel, PA), and Melissa Stewart (Donati Law, PLLC) represent plaintiff.
