A.G. Gancarski
The 11th Circuit Court of Appeals is backing a lower court decision that issues a “broad injunction” against an “overbroad” and “impermissibly vague” Florida law purportedly protecting Florida youngsters from drag shows.
“When a court holds a law facially unconstitutional, broad-based relief may follow,” the majority argued.
“Florida’s SB 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.”
The majority ruling sides with Hamburger Mary’s of Orlando over Gov. Ron DeSantis and Florida’s Department of Business and Professional Regulation.
The opinion specifically cited DeSantis as looking to restrain protected speech, noting that “when signing the Act into law, Florida’s governor described it as being about ‘adult performances … like those drag shows.'”
Additionally, the opinion finds legal defects in the law itself.
“The Act’s vague terms like ‘depicts … lewd conduct’ and ‘value for the age of the child present’ make the law’s scope ambiguous and potentially inclusive of even Hamburger Mary’s “family-friendly” drag performances.”
Hamburger Mary’s differentiation of all-ages events from more risqué, 18-plus performances is meaningful to the majority of the three-judge panel, which differentiates between that and the state lumping all performances together.
Furthermore, the law’s reliance on “lewd conduct” as something to prohibit (as in the case of a drag performer simulating birth to a baloney sausage) falls apart given that it is an undefined term, the majority contended.
“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.”
The Judges used an iconic suntan lotion ad to illustrate the fundamental inconsistency.
“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,” the Judges stated.
“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.”
The U.S. Supreme Court previously refused to intervene in the ban by a 6-3 margin.
Justice Brett Kavanaugh, appointed by President Donald Trump during his first term, joined with fellow Trump appointee Amy Coney Barrett in saying it would not be “appropriate” to intercede at that point.
