Background
Florida’s Protection of Children Act makes it a misdemeanor to knowingly admit a child to an “adult live performance.” The statutory definition covers live performances depicting specified sexual subject matter, including nudity, sexual conduct, “lewd conduct,” and the lewd exposure of prosthetic or imitation genitals or breasts, but only when the performance also appeals predominantly to a prurient interest, is patently offensive under statewide adult-community standards as to suitability for the age of the child present, and lacks serious literary, artistic, political, or scientific value for that child’s age.
HM Florida-ORL, LLC, which operated the Hamburger Mary’s restaurant and presented drag shows, brought a pre-enforcement facial challenge under the First and Fourteenth Amendments. It argued principally that the word “lewd” and the statute’s age-variable criteria were overbroad and vague. The district court found the claims likely to succeed and preliminarily barred the Secretary of the Florida Department of Business and Professional Regulation from enforcing the Act against anyone in Florida. A divided appellate panel affirmed, but the Eleventh Circuit vacated that decision and reheard the appeal en banc.
The Court’s Holding
The en banc court vacated the preliminary injunction in its entirety. Eight judges agreed that Hamburger Mary’s had not shown a substantial likelihood of success on its facial overbreadth and vagueness claims. The court concluded that the Act tracks the constitutional test for material that is obscene as to minors and therefore is subject to rational-basis review rather than heightened First Amendment scrutiny.
The court rejected the argument that “lewd” made the Act facially overbroad or vague, relying on the Florida Supreme Court’s authoritative construction of that term as sexually related gross indecency or sexual impurity. It also held that referring to “the age of the child present” did not create the hopeless indeterminacy required for a facial vagueness claim. Although six judges further concluded that federal equitable authority did not permit the statewide injunction to protect nonparties, Judges Newsom and Grant did not join that portion of the opinion, so that reasoning did not command a majority of the en banc court.
Key Takeaways
- The Eleventh Circuit vacated all preliminary relief because Hamburger Mary’s did not establish that its facial constitutional claims were likely to succeed.
- The court treated Florida’s Act as a regulation of obscenity as to minors and found its use of “lewd” sufficiently limited by existing Florida Supreme Court precedent.
- Only six of the thirteen participating judges joined the opinion’s conclusion that the district court lacked authority to issue a universal statewide injunction.
Why It Matters
The decision permits Florida to enforce the Protection of Children Act against Hamburger Mary’s as well as others while the litigation proceeds. It also sets a demanding standard in the Eleventh Circuit for facial challenges to age-variable restrictions on sexual material or performances presented to minors.
The fractured vote matters for remedies doctrine. Although the judgment eliminates the statewide injunction, the opinion’s broad discussion of federal courts’ authority to protect nonparties in First Amendment overbreadth cases did not receive majority support and therefore does not itself establish a binding en banc holding on that question.