A federal appeals court upheld Florida’s ban on children attending sexually explicit performances, including drag shows, as lawful, tossing out rulings from lower courts that had found the ban unconstitutional.
Florida lawmakers passed the Protection of Children Act in 2023, which made it a misdemeanor to allow minors into live performances that feature nudity, sexual content, and lewd exposure of prosthetic or imitation genitals or breasts, among other sexually explicit depictions. The law was immediately met with a lawsuit by the restaurant Hamburger Mary’s, which claimed it unconstitutionally banned children from attending drag shows that the restaurant hosts. The full U.S. Court of Appeals for the 11th Circuit upheld the law in an 8-5 ruling, tossing out a federal district court’s ruling finding the law unconstitutional. A three-judge panel on the 11th Circuit also found the law unconstitutional last year, but that ruling was also tossed out by the full bench of the 11th Circuit.
“Because the Act is neither overbroad nor vague and regulates only material obscene for minors, it receives rational basis review,” Circuit Judge Andrew Brasher, a nominee of President Donald Trump, wrote for the majority. “Under that standard, a law will be upheld ‘if there is any reasonably conceivable state of facts that could provide a rational basis’ for its enactment. There is no doubt the Act is rational. We will not secondguess the Florida Legislature’s decision to regulate obscenity.”
“Preventing children from attending adult live performances obscene for them is rationally related to Florida’s interest in safeguarding the well-being of minors,” the ruling continues. “Although Hamburger Mary’s argues that the Act serves no legitimate purpose because it overlaps with Florida’s other obscenity laws, there is nothing constitutionally suspect about overlapping criminal statutes.”
Circuit Judge Britt Grant, a Trump nominee, wrote a concurring opinion, joined by Circuit Judge Kevin Newsom, also a Trump nominee, in which he wrote that he felt the majority did not need to rule on whether the district court exceeded its power by granting a universal injunction against the law. Grant said he would have only upheld the law as constitutional and avoided ruling on the lower court’s ability to issue a broad injunction.
There were two dissents written in the case, with the principal dissent written by Circuit Judge Robin Rosenbaum, a nominee of former President Barack Obama. Rosenbaum said the ruling embraces a “mess-around-and-find-out First Amendment jurisprudence” where “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.”
“Florida purposely created a mess-around-and-find-out statute to chill drag. And the Act is unconstitutionally vague by design,” Rosenbaum wrote, arguing the law violates the First Amendment. “Yet today we uphold it, anyway. The Constitution does not countenance our determination.”
PARENTAL RIGHTS ISSUES ARE HEATING UP AT THE SUPREME COURT
Florida Attorney General James Uthmeier celebrated the ruling, calling it a “huge victory” and adding that “after 3 years of litigation, the full court affirmed the constitutionality of Florida’s ban on children attending sexualized drag shows.” Gov. Ron DeSantis (R-FL), who signed the Protection of Children Act into law, also heralded the ruling, adding that the ban “shouldn’t even be controversial, yet our law protecting kids required us to fend off lawsuits and win a case before a divided appellate court.”
The restaurant that sued over the law could still appeal the case to the Supreme Court in the coming months.