A federal appeals court has upheld Florida’s child protection law that seeks to prevent kids from attending or being exposed to “adult live performances” like suggestive drag shows or lewd “drag queen” story hours.
The case has been in litigation for three years after a federal judge blocked the law after Orlando’s Hamburger Mary’s Restaurant and Bar sued to preserve it’s ability to host “family friendly drag shows,” according to Courthouse News Service and other outlets.
The 2023 Protection of Children Act law defines an “adult” performance as any show that depicts or simulates “nudity, sexual conduct, sexual excitement or specific sexual activities, lewd conduct or the lewd exposure of prosthetic or imitation genitals or breasts,” the legal news service reported.
Drag shows are known to feature performers dressed in over-the-top sexualized costumes who perform suggestive dances and sometimes simulate lewd acts.
On Tuesday, the full 11th Circuit bench decided on the appeal, ruling 8-5 in favor of overturning the lower court ruling made by Clinton-appointed Senior District Judge Gregory Presnell 2023, as well as overturning an earlier three-judge panel in the circuit last year that agreed with the lower court’s ruling.
“We will not second-guess the Florida Legislature’s decision to regulate obscenity,” wrote U.S. Circuit Judge Andrew Brasher on behalf of the majority. “Preventing children from attending adult live performances obscene for them is rationally related to Florida’s interest in safeguarding the well-being of minors.”
Brasher was appointed to the appellate bench by President Donald Trump.
Florida Attorney General James Uthmeier praised the decision.
“Huge victory for our team at the 11th Circuit! After 3 years of litigation, the full court affirmed the constitutionality of Florida’s ban on children attending sexualized drag show,” he said in a statement. “Great work by Solicitor General Dave Dewhirst, who argued the case on the state’s behalf!”
According to Courthouse News:
Florida becomes the fifth state to actively ban minors from adult live performances along with Arkansas, North Dakota, Tennessee and Texas. In March, the Ninth Circuit upheld a decision blocking Montana from enforcing its ban on drag story hours while a First Amendment challenge proceeds. Although the majority insisted Florida’s 2023 law targets drag shows that are obscene for children — “not drag shows writ large” — the dissenters said the state “purposely created a mess-around-and-find-out statute to chill drag.”
U.S. Circuit Judge Robin Rosenbaum, an appointee of Barack Obama, noted in a dissenting opinion joined by four other judges that Florida Governor Ron DeSantis described the law as “being about adult performances … like those drag shows.” The law’s primary sponsor, state Representative Randy Fine, also said the statute would “protect our children by ending the gateway propaganda to this evil — ‘Drag Queen Story Time.’”
The Florida law carries with it penalties. It makes it a misdemeanor to knowingly admit a child to any live performance that is offensive to prevailing standards of obscenity defined in the act. That could be up to a year in jail and a $10,000 fine.
Plaintiff’s attorneys argued such definitions of lewdness were unconstitutionally vague as well as calling the law a “Titanic-sized iceberg of chilling power against protected speech.”
“The Constitution protects speech, but not obscenity,” Judge Brasher wrote for the majority. “It is difficult to imagine any sex-based performance that predominantly appeals to a prurient interest being suitable for a child of any age.”
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The majority also pointed out that obscenity and lewdness has been defined by the Florida Supreme Court, which said it was “gross indecency with respect to sexual relations” and “the unlawful indulgence of lust, signifying that form of immorality which has a relation to sexual impurity,” according to the legal news service report.
The Liberty Council, a first amendment and religious liberty legal advocacy nonprofit, filed an amicus brief in the case, supporting the Florida law.
“The ruling by the full court of appeals reinforces the longstanding principles that children should be protected from obscenity,” council founder Mat Staver said. “The appeals court rightly ruled that states have a compelling interest in protecting children from obscene content and doing so fits squarely within constitutional boundaries.”
Breitbart contributor Lowell Cauffiel is the author of the New York Times true crime best seller House of Secrets , which documents one of the worst cases of child sex abuse in U.S. history, and nine other crime novels and nonfiction titles. See lowellcauffiel.com for more.