A three-judge panel heard arguments Wednesday in the state’s appeal of an injunction blocking a 2023 Florida law aimed at preventing children from attending drag shows.
U.S. District Judge Gregory Presnell last year found that the law, which was challenged by Orlando restaurant and bar Hamburger Mary’s, violated First Amendment rights. The law was among a number of LGBTQ-related measures approved by Gov. Ron DeSantis and the Republican-controlled Legislature in recent years that have spurred court fights.
The law, dubbed by sponsors as the “Protection of Children Act,” would prevent venues from admitting children to adult live performances. It defines adult live performances as “any 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, … lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts.”
The law would apply to performances that are “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.”
Melissa Stewart, an attorney who represents Hamburger Mary’s, told the panel of the 11th U.S. Circuit Court of Appeals during Wednesday’s hearing that the law “employs broad undefined terms like lewd conduct and lewd exposure” and “makes compliance practically impossible.”
READ MORE: Local advocates react to Florida’s drag show ban
Judges Robin Rosenbaum and Nancy Abudu grilled Nate Forrester, a lawyer for the state, about the law.
“Where is the definition of lewd in this provision or anywhere in the Florida statutes, because it seems your brief talks a lot about obscenity. Where is lewd?” Abudu asked.
Forrester said that the word has a “longstanding history” in state law.
“The word ‘lewd’ is basically a reference to something that is sexually explicit. We think that is something that everyone understands as a matter of common sense,” he said, adding that it would apply to something like an “X-rated movie performance” and that the law sets an “age-variable standard.”
But Rosenbaum pressed Forrester, asking how someone would know “whether something is OK for, say, a 12-year-old but not for, say, an 8-year-old?”
“Well again, this does at the edges call for the exercise of judgment and common sense,” Forrester said.
Rosenbaum posed a scenario in which actors in a Shakespeare play wore imitation breasts or genitals.
“I’m not aware of a Shakespeare play that has actually exposed genitalia as part of the performance,” Forrester said.
The law “says ‘exposure,’” the judge said. “I think it just means that you have to be able to see it. I mean, what does that mean? It says lewd exposure. That’s what I'm trying to get at. What do we mean?”
“I think everyone has a sense of what the word lewd means, and there is a line there. I admit there are difficult edge cases, but that’s not enough to render it facially vague,” Forrester replied.
Abudu continued to question Forrester.
“You have parents and children, arguably, who felt comfortable with these performances … and someone in the Legislature perhaps felt that the mere presentation of those shows was problematic and enacted the statute to address those scenarios. So, how should Hamburger Mary’s and others determine whether or not their shows are lewd if there’s no clarity as to what constitutes lewd behavior?” Abudu asked.
“Well, I'd dispute that there is no clarity. I think the word has an understanding that everyone can ascertain,” Forrester said.
A divided U.S. Supreme Court in November refused to lift Presnell’s preliminary injunction, which blocked enforcement of the law statewide. The law would allow regulators to suspend or revoke licenses of restaurants, bars and other venues that are in violation. The law also would prohibit local governments from issuing public permits for events that could lead to children being exposed to the targeted behavior. In addition, people could face first-degree misdemeanor charges for “knowingly” admitting children to adult live performances.
Although the law does not specifically mention drag shows, lawmakers passed it after the state Department of Business and Professional Regulation cracked down on venues in South Florida and Central Florida where children attended drag shows.
Stewart on Wednesday pointed to the DeSantis administration’s actions, saying the secretary of the department “has already demonstrated … an appetite for finding obscenity where there is none to be found.”
Amid the litigation, Hamburger Mary’s owners stopped hosting the performances, shuttered their downtown Orlando venue and announced they intend to relocate in Kissimmee.
“Plaintiffs’ fear and the actions Hamburger Mary’s has taken to self-censor are not speculative, they are not an overreaction. … There is no way to determine how the secretary is going to define a term like lewd conduct,” Stewart argued.
The restrictions make it “impossible for citizens to know how to comply with this law and it gives law enforcement the opportunity to enforce this law in arbitrary and discriminatory ways,” she argued.
Judge Gerald Tjoflat, however, asked Stewart whether the law was designed to protect children.
“Let’s suppose that, in a given case, the state believes the performance constitutes child abuse by the parent bringing the child to the place. … This is a prophylactic arrangement which is designed to prevent certain things, including child abuse,” Tjoflat said.
The state “already has statutes on the books that address that kind of abusive behavior” and shield children from obscenity, Stewart said.
“It’s not enough. We know that every time you enact a law to prohibit something, people get around it and do something else,” the judge responded.