Challenge of Florida drag show law takes 11th Circuit stage

(CN) — An 11th Circuit panel on Wednesday appeared unlikely to side with Florida officials seeking to overturn a lower court’s decision to block enforcement of a state law preventing children from attending “adult live performances” such as drag shows.

Hamburger Mary’s Restaurant and Bar, an Orlando business known for hosting family-friendly drag shows, sued to block the Protection of Children Act last year. The restaurant has argued that the law —  which authorizes the Florida Department of Business and Professional Regulation to impose fines and suspend or revoke operating and liquor licenses of businesses that knowingly admit children to impermissible performances — violates the free speech clause of the First Amendment.

Two of the three judges on the panel peppered attorneys with questions about how the law defines terms like “lewdness” and how the state could determine what performances might be appropriate for children of various ages to view.

Arguing on behalf of Hamburger Mary’s, attorney Melissa Stewart of Donati Law said the statute deploys “undefined terms” like “lewd conduct” and “lewd exposure” to “sweep up a large amount of protected speech” and makes compliance “practically impossible.”

The law’s definition of an “adult live performance” includes shows in front of a live audience depicting or simulating “nudity, sexual conduct, sexual excitement or specific sexual activities” and “lewd conduct or the lewd exposure of prosthetic or imitation genitals or breasts” which would be considered obscene “for the age of the child present.”

The problem, Stewart said, is that the law does not explain specifically what constitutes “lewd conduct” or “lewd exposure,” giving law enforcement “the opportunity to enforce this law in arbitrary and discriminatory ways.”

Stewart also pointed out that Florida already has laws barring minors from viewing sexually explicit materials. The attorney urged the panel to uphold a preliminary injunction blocking the law.

U.S. Circuit Judge Nancy Abudu, a Joe Biden appointee, asked the state how Hamburger Mary’s and others could determine whether their shows are lewd.

An attorney for Melanie Griffin, secretary of Florida’s Department of Business and Professional Regulation, said the word ‘lewd’ is “basically a reference to something that is sexually explicit” which “everyone understands as a matter of common sense.”

But Abudu pointed out that at least “one reasonable mind” disagreed: U.S. District Judge Gregory Presnell.

Presnell, a Bill Clinton appointee, ruled last year that the law was likely unconstitutional and “specifically designed to suppress the speech of drag queen performers.” The law’s vague language was “dangerously susceptible to standardless, overbroad enforcement,” he wrote.

The U.S. Supreme Court in November refused to grant the state emergency relief to limit Presnell’s ruling and enforce the law on establishments not involved in the lawsuit.

Even Florida Senior Deputy Solicitor General Nathan Forrester appeared to struggle to clearly define the statute’s language on Wednesday.

Forrester told the panel a lewd performance could be a “sexually explicit performance on the level of like, an X-rated movie” but said the standard varies by the age of the child viewer. The attorney said common sense should be used to determine whether something is acceptable for a 12-year-old to see but not an eight-year-old.

However, Forrester acknowledged he was not sure it would be “improper” for a seven-year-old to attend a “run-of-the-mill drag performance.”

Forrester also argued the panel could find in the state’s favor if it determined the restaurant lacked legal standing to challenge the law. The attorney argued Hamburger Mary’s has no justifiable fear of prosecution if the performances it hosts are as free of sexually explicit content as claimed.

U.S. Circuit Judge Robin Rosenbaum pointed out that the state had launched administrative proceedings to revoke the liquor license of at least one business that hosted a drag event even though undercover state inspectors reported seeing no lewd displays.

Orlando’s Plaza Live music venue had its liquor license revoked last February under a separate obscenity law after it hosted a “Drag Queen Christmas” show.

Rosenbaum, a Barack Obama appointee, asked whether Hamburger Mary’s awareness that the state enforced other similar laws against drag shows even without reports of a lewd display was enough to show the restaurant’s speech was” reasonably chilled.”

Noting that the restaurant stopped hosting its Sunday family-friendly drag show out of fear of retribution, Rosenbaum asked, “Why doesn’t that show self-censorship?”

Forrester replied: “That’s their decision."

The attorney told the panel that just because an undercover agent thought there was no lewd conduct, “that doesn’t settle the fact for everybody with authority in the state of Florida.”

Senior U.S. Circuit Judge Gerald Tjoflat, an appointee of Gerald Ford, rounded out the panel, which did not signal when a decision will be issued.

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