Hamburger Mary's Gets Flipped

By John R. Byrne

In an en banc decision, the 11th Circuit has upheld a Florida law that barred persons from knowingly admitting children to an "adult live performance.” What’s an "adult live performance," you ask? Well, that’s what the lawsuit was all about. Sure, the statute defined adult live performance, saying it was a live performance that satisfied the following four requirements:

• Requirement #1: 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”;
• Requirement #2: “[p]redominantly appeals to a prurient, shameful, or morbid interest”;
• Requirement #3: “[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
• Requirement #4:  “[t]aken as a whole, is without serious literary, artistic, political, or scientific value for the age of the child present.”

But, according to the plaintiff (restaurant Hamburger Mary’s), parts of that definition were the problem. According to the restaurant, which puts on drag shows,  the use of the word “lewd” and the phrase “age of the child present” made the law unconstitutionally overbroad and vague. A majority of the 11^th Circuit disagreed. It noted, among other things, that the Florida Supreme Court supplied a definition for “lewd” back in 1971 (in a case called Chesebrough) and that the “age of the child present” requirement wasn’t a problem because  age-variable standards are an established feature of obscenity law (plus, the Court had previously upheld an even broader statute that prohibited works “harmful to minors” as a class). 

Lots of dissenting judges here (five) and two dissenting opinions. Judge Rosenbaum said that the Court had embraced the “mess-around-and-find-out” First Amendment jurisprudence (“mess” replacing a different word in the more familiar saying). The idea there being that the the "age of the child present” is so vague that live performance venues will only know what the law means by putting on a performance and “finding out” what happens—will they be charged with a misdemeanor or not? Judge Abudu also dissented, saying that the Florida legislature enacted the law for an unlawful purpose (to target protected speech it didn’t like by passing a law that chills it).

You can read the whole thing here.