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 11th 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.
I have a lot of respect for Judge Rosenbaum. She's a very serious jurist. But she never fails to make herself look deeply unserious with those stupid, pithy, intros.
ReplyDeleteRidiculous decision. Unless there is nudity or adult content the venue does not even meet the Florida statute. The show was drag performers performing at brunch? It was passed as another attack on trans, gays or whoever the governor was targeting. Its so sad what the Supreme Court, Court of Appeals, and District court judges have become. I think today they would have upheld the 2 Live Crew Gonzalex ruling. Freedom is no longer free or guaranteed anymore in this country. The courts have become political theater.
ReplyDeleteWhat's more: that was the GOP's plan all along. They knew they were losing all the culture wars. And of course they were - as time progresses, so does the population become more "progressive." People co-mingle, become more educated and less fearful, our human colleagues in the LGBTQ+ community come out and, as a result, even staunch conservatives are forced to realize their friends and family members are part of that beautiful community and are nothing to fear anymore. As a result, bigoted conservatives, still grasping for relevance and power, lose the ability to enforce their views on others via the political branches.
DeleteSo, starting back in Reagan days, they switched tack and turned to life-appointed judges to do their bidding. And, albeit transparent and 100% political theatre, as you say, that plan is working beautifully (or horrendously, for those of us who aren't too stupid to see what's happening and how intentional, effective, and Machiavellian it was).
BUT - even though it's been effective, the hands of time keep ticking and society as a whole continues to "progress." While there are obvious setbacks and periods of regression on the pendulum, its fulcrum is always moving forward (i.e., to the left). They can't stop that. And their attempts to do so become more desperate and transparent, which only proves the point.