11TH CIRCUIT UPHOLDS FLORIDA LAW BANNING MINORS FROM ADULT LIVE PERFORMANCES LIKE DRAG SHOWS. (PHOTO).

 11th Circuit upholds Florida law banning minors from adult live performances like drag shows

 Florida can enforce a law preventing minors from attending certain adult live performances, including some drag shows, after the full 11th U.S. Circuit Court of Appeals ruled 8-5 in favor of the state.

The decision overturned a federal judge’s injunction that had blocked enforcement of Florida’s 2023 Protection of Children Act. The ruling followed a divided panel decision last year that had upheld the injunction before the full appeals court agreed to reconsider the case.

Writing for the majority, U.S. Circuit Judge Andrew Brasher said the law is intended to regulate performances that are obscene for minors rather than drag performances generally. He said preventing children from attending performances deemed obscene for them is reasonably connected to the state’s interest in protecting minors.

Florida is now among the states that prohibit minors from attending certain adult live performances. The law defines an adult live performance as a show depicting or simulating nudity, sexual conduct, sexual excitement, specific sexual activities, lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts.

Under the law, knowingly admitting a minor to a qualifying performance can be a misdemeanor when the performance predominantly appeals to a prurient, shameful or morbid interest, is considered offensive under prevailing standards for the child’s age and lacks serious literary, artistic, political or scientific value for that age.

The case began after Hamburger Mary’s, an Orlando restaurant known for hosting drag performances, challenged the law under the First and 14th Amendments. The business argued that portions of the law were unconstitutionally vague, particularly the use of the terms “lewd” and “for the age of the child present.”

The appeals court majority rejected those arguments, noting that Florida courts have previously defined “lewd” in connection with sexual conduct. Brasher also said it would be difficult to identify a sexually explicit performance that appeals to prurient interests yet would be appropriate for children.

The majority additionally concluded that the lower court went too far by issuing a statewide injunction that prevented enforcement of the law against everyone in Florida.

Five judges dissented from the decision. U.S. Circuit Judge Robin Rosenbaum argued that the law could discourage protected drag performances whenever people under 18 are present.

Rosenbaum said businesses face significant consequences if they incorrectly determine whether a performance is appropriate for a particular child’s age. Violations can result in up to a year in jail, a $10,000 fine and the loss of a business license, she noted.

She also argued that the law gives Florida excessive power to restrict constitutionally protected expression.

In a separate dissent, U.S. Circuit Judge Nancy Abudu said the law’s legislative history should be considered when evaluating its constitutionality. She argued that statements surrounding the legislation indicate that it was aimed at drag performances and expression associated with the LGBTQ+ community.

The majority rejected the constitutional challenges, characterizing the law as a regulation of obscenity rather than a broad restriction on drag performances.

Florida Attorney General James Uthmeier celebrated the ruling as a major victory for the state.

The case has been sent back to federal court in Florida for further proceedings.