Eleventh Circuit En Banc Upholds Florida Ban on Knowingly Admitting Minors to Obscene-as-to-Minors Performances

An excerpt from the long majority opinion (by Judge Andrew Brasher, signed by eight judges) yesterday in HM Florida-ORL, LLC v. Governor:

This appeal is about the constitutionality of Florida's Protection of Children Act. The Act makes it a misdemeanor to "knowingly admit a child to an adult live performance."

The Act defines an "adult live performance" as a live performance that depicts "nudity, sexual conduct, sexual excitement, or specific sexual activities [as defined], lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts" and meets three additional criteria. The three additional criteria are that the performance "[p]redominantly appeals to a prurient, shameful, or morbid interest," "[i]s patently offensive to prevailing standards in the adult community of [Florida] as a whole with respect to what is suitable material or conduct for the age of the child present," and "[t]aken as a whole, is without serious literary, artistic, political, or scientific value for the age of the child present."

The court held, among other things, that the law isn't unconstitutionally overbroad, because it basically tracked the "obscenity-as-to-minors" standard that the Supreme Court and the Eleventh Circuit had validated:

Under Free Speech Coalition v. Paxton's "Miller-for-minors" test [set forth by the Supreme Court], a state may prevent minors from accessing works that "(a) taken as a whole, and under contemporary community standards, appeal to the prurient interest of minors; (b) depict or describe specifically defined sexual conduct in a way that is patently offensive for minors; and (c) taken as a whole, lack serious literary, artistic, political, or scientific value for minors." These restrictions "trigger no heightened First Amendment scrutiny and are subject only to rational-basis review, even though they encompass speech that is not obscene for adults." … Applying these precedents, the Act is a straightforward regulation of obscenity….

Of course, not every depiction of sexual conduct is obscene. But here, enumerated sexual activities are proscribed by the Act only if they predominately appeal to the prurient interest, are patently offensive to prevailing adult standards with respect to what is suitable for that child's age, and lack serious literary, artistic, political, or scientific value for that child's age. So, under a straightforward reading of the Act, nudity will count as obscenity only if it satisfies the three elements of the Miller-for-minors test. Under Supreme Court precedent, the Constitution requires no more.

Hamburger Mary's complains that the Act, unlike the law upheld in Ginsberg v. N.Y. (1968) [a predecessor to Paxton -EV], does not allow an exception for parental consent. But neither the Supreme Court nor our Circuit has ever held that a regulation of materials obscene for minors must contain a parental consent exception. Neither Miller nor Paxton referenced such an exception…. [And] whether material is obscene—and therefore proscribable under the Constitution—has nothing to do with whether an adult wants a child to view the material. Moreover, because we are addressing only Hamburger Mary's free speech rights, we need not and do not decide whether parents have a right under state or federal law to expose their children to obscene material. Cf. Fla. Stat. § 1014 (2021) (Parents' Bill of Rights)….

And it held the law wasn't unconstitutionally vague, either, including in its reference to the "age of the child present":

Hamburger Mary's also argues that the Act's age-variable standard renders the law vague and overbroad. In two places, the Act refers to the "age of the child present." Hamburger Mary's says that the Act requires it to draw "a different line for every child in every audience." We conclude that the age-variable standard is neither vague nor overbroad for four reasons.

First, as a matter of vagueness, nothing requires Hamburger Mary's to tailor its performances for children of different ages. The Act bans admitting a child of any age to a performance that depicts nudity, sex, or lewd conduct when the performance satisfies Miller's three-part obscenity test. The "age of the child" standard could theoretically matter to whether a performance meets the last two elements of the Act. But it is difficult to imagine any sex-based performance that predominantly appeals to a prurient interest being suitable for a child of any age. Nor has Hamburger Mary's identified any such hypothetical performance. We therefore cannot see how vagueness "permeates" the text of the Act.

Second, as a matter of overbreadth, the primary effect of the age-variable standard is to permit more speech than the State could otherwise prohibit…. By tailoring the standard to the age of the minor, as opposed to creating a blanket ban, the primary effect of this part of the Act is to allow older minors to attend performances that would be obscene for younger minors. We cannot say that a law that is more tailored than the law we upheld as constitutional in American Booksellers, Inc. v. Webb (11th Cir. 1990) is overbroad in a pre-enforcement facial challenge.

Third, age-variability is an established part of obscenity law. It is settled that states may "broaden" Miller's definition of obscenity to cover material obscene from a child's perspective…. The Act's age-variable standard, to the extent it matters at all, fits comfortably with our precedents.

Hamburger Mary's argues that the statutes approved in Ginsberg and Webb were different because they drew a "single line" between 17-year-olds and 18-year-olds. But this line is no less vague than the difference between 16-year-olds and 17-year-olds. And Hamburger Mary's does not deny that line-drawing is obvious as between, for example, 5-year-olds and 17-year-olds. Hamburger Mary's focus on granular distinctions between different hypothetical ages does not render the Act void for vagueness.

Fourth, Miller counsels that the answer to limited indeterminacy is not to void statutes for vagueness. We have never required legislatures to craft obscenity statutes with "god-like precision." "That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense." "In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide."  …

And the court also rejected the argument that the law was unconstitutional "because the Legislature's supposed purpose was to disincentivize non-obscene drag shows, even though the law does not apply to non-obscene performances":

It is a "familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive." Nor can the statements of individual legislators "muddy clear statutory language." …

In any event, the Act is consistent with a legislative intent to target drag shows that are obscene for children, not drag shows writ large…. Nothing in the Act targets performances because they feature drag or "challenge conventional gender norms."  …

Judge Robin Rosenbaum dissented, on behalf of five judges:

Today our Court embraces mess-around-and-find-out ("MAFO") First Amendment jurisprudence. Under this form of jurisprudence, a citizen can learn whether a law prohibits their speech only by taking a wild guess, presenting their speech, and then seeing if they get arrested and face imprisonment, thousands of dollars in fines, and loss of their business license.

But of course, the Constitution is supposed to prevent citizens from bearing the burden of unclear (and here, undefinable) limitations on speech. Our Constitution ensures that citizens need not risk imprisonment or business-ending fines to engage in protected speech. And it doesn't tolerate statutes that create prosecutorial skeleton keys allowing "policemen, judges, and juries" to unlock penalties and punish speech on "an ad hoc and subjective basis." In other words, MAFO statutes, by definition, flunk the Constitution.

Yet today we endorse Fla. Stat. § 827.11 ("Act"), even though it's a MAFO statute that does all these unconstitutional things. Section 827.11 requires businesses, concerts, and even backyard shindigs to tailor any "live performance" "for the age of the child present." As far as I can tell, the Act is unique. No other law requires tailoring based on the specific child's age, as opposed to tailoring for minors in general.

And Florida offers no assistance to individuals and businesses in determining what is appropriate "for the age of the child present." … With no guidance from the state, Hamburger Mary's faces strict liability to the tune of jail time, thousands of dollars in fines, and the loss of its business license for guessing the Act's standards incorrectly. So it's not surprising that Hamburger Mary's has censored itself and disallowed anyone under the age of 18 into any of its drag-show performances. After all, the Act sets the stakes too high for anyone to find out they were wrong about their interpretation of it—especially given Florida's history of arbitrary enforcement of similar statutes.

As it turns out, chilling all drag performances when those under the age of eighteen are present appears to be the point. Though the text of the Act is itself unconstitutionally vague, it's blinking reality not to at least acknowledge that, upon adopting the Act, Governor Ron DeSantis described it as "being about adult performances … like those drag shows." And one of the Act's sponsors declared that the Act would criminalize "the gateway propaganda to … evil—Drag Queen Story Time." In other words, Florida purposely created a mess-around-and-find-out statute to chill drag. And the Act is unconstitutionally vague by design. Yet today we uphold it, anyway. The Constitution does not countenance our determination….

The Act's dual sliding scales "for the age of the child present," by their terms, create at least seventeen (for each year of age under eighteen, the age of majority)—and perhaps many more—age thresholds that a live performance must satisfy. As far as I can tell, this multiple-age restriction (without guidance or definition) is unique in First Amendment law….

To be sure, the Supreme Court has held that "a state may deny minors access to materials acceptable for adults but obscene for minors." And we have upheld a state law that regulated the display of material deemed "harmful to minors."

But these cases (and according to my research, all others imposing substantive limitations on minors' access to certain materials in the past) involved only one age cut-off: between adults and minors. Not only that, but we construed the general category of materials "harmful to minors" at the level of what a reasonable seventeen-year-old would find has "serious value." The line between adults and seventeen-year-olds may raise a few questions about what the law prohibits close to the line. But a law that divides all minors from all adults with a single line provides relatively clear notice to citizens and guidance to law enforcement about what it prohibits.

That's not the case for a law like the Act, which has seventeen—or more—lines a citizen must comply with. Of course, a law that requires citizens and law enforcement to identify the contents that fall between at least seventeen lines dividing minors' ages by a single year at a time raises many, many more questions about what it permits and what it doesn't. Indeed, a law like that offers nothing but margins. Put simply, the Act is basically an invitation (or more accurately, a threat) to any would-be speaker and venue to mess around and find out what the Act means. It's also a blank check to law enforcement to decide for itself what violates the Act.

The Majority Opinion baldly asserts that it's no harder to discern what a single cut-off between adults and minors … allows than to understand what the Act's seventeen one-year-distinction lines permit. But that's illogical.

To show the folly of the Majority Opinion's position, consider an extreme example. Assume "for the age of the child present" imposes a day-by-day inquiry into the appropriate age for viewing the material. If that were the case, a performance could be appropriate for someone who is sixteen years and 100 days old but not sixteen and 99 days. That would mean the Act would create more than 6,000 substantive categories (365 days per year X seventeen years). I doubt even the Majority Opinion would have trouble concluding that a requirement like that would fail to provide sufficient notice and guidance about what the law prohibits.

I'm not suggesting the Act imposes more than 6,000 cut-offs (although I can't rule that out, either). But here's the point: the mere fact … that citizens and law enforcement can discern what's permissible for an adult versus a seventeen-year-old doesn't somehow show, as the Majority Opinion suggests, that citizens and law enforcement can understand what's permissible for any number of age categories—whether that's seventeen or 6,000….

Here's the bottom line: the Act is a hammer. And under its vague language, law enforcement can treat lots of protected speech as nails. Its vague language purporting to address obscenity serves as an especially pernicious club to silence political speech….

There's a lot more in the opinions (including a concurrence and a second dissent), as to universal injunctions and legislative history as well as the First Amendment.