Sarasota Pridefest in Sarasota, Florida on Jan. 25, 2020. Credit: Photo via Semyon Lorberg/Shutterstock

TALLAHASSEE — Florida is continuing to battle at a federal appeals court over a 2023 state law designed to prevent children from going to drag shows.

Attorney General James Uthmeier’s office on Tuesday asked for a rehearing by the 11th U.S. Circuit Court of Appeals after a three-judge panel last month upheld a preliminary injunction blocking the law. Such a rehearing, if granted, could be held by the full appeals court.

The panel, in a 2-1 decision, backed the Central Florida venue Hamburger Mary’s, which argued the law violated First Amendment rights. The state went to the Atlanta-based appeals court after U.S. District Judge Gregory Presnell in 2023 issued the preliminary injunction.

In a 31-page petition for a rehearing, Uthmeier’s office disputed that the law is unconstitutionally vague and overbroad.

“Florida enacted the Protection of Children Act (the law) in 2023 to shield children from the harmful effects of obscene sexual performances,” the petition said. “The act penalizes admitting a child to an ‘adult live performance,’ which is a performance that features nudity or sexual activity and is obscene for a child of that age. This law is neither remarkable nor extreme. Fair readers will applaud its common-sense effort to protect kids.”

But the panel’s May 13 majority opinion said that “by providing only vague guidance as to which performances it prohibits, the act wields a shotgun when the First Amendment allows a scalpel at most.”

“The Constitution demands specificity when the state restricts speech,” said the 81-page opinion, written by Judge Robin Rosenbaum and joined by Judge Nancy Abudu. “Requiring clarity in speech regulations shields us from the whims of government censors. And the need for clarity is especially strong when the government takes the legally potent step of labeling speech ‘obscene.’ An ‘I know it when I see it’ test would unconstitutionally empower those who would limit speech to arbitrarily enforce the law. But the First Amendment empowers speakers instead. Yet Florida’s Senate Bill 1438 (the law) takes an ‘I know it when I see it’ approach to regulating expression.”

The law sought to prevent venues from admitting children to adult live performances. It defines adult live performances as “any show, exhibition, or other presentation that is performed in front of a live audience, which, in whole or in part, 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.”

It would allow regulators to suspend or revoke licenses of restaurants, bars and other venues that violate the law. Also, it would prohibit local governments from issuing public permits for events that could expose children to the targeted behavior.

While the law does not specifically mention drag shows, it came after Gov. Ron DeSantis’administration cracked down on venues in South Florida and Central Florida where children attended drag shows. It also came amid a series of controversial laws passed by Republicans in Florida and other states about transgender-related issues.

The panel’s majority opinion focused, in part, on the use of the words “lewd conduct” in the law. It said the term is overbroad and that the two judges in the majority “understand the act’s prohibition on depictions of lewd conduct to reach speech that is constitutionally protected, even as to minors.”

But in Tuesday’s petition for a rehearing, lawyers in Uthmeier’s office contended that the majority opinion’s “First Amendment analysis makes it nearly impossible for a state to regulate the exposure of children to age-inappropriate performances.”

“‘(Lewd) conduct’ draws on the well-settled meaning of ‘lewd’ in Florida law, defined by the state’s highest court to include the ‘indulgence of lust, signifying that form of immorality which has a relation to sexual impurity’ and ‘indicat[ing] gross indecency with respect to the sexual relations.’” the petition said, partially quoting from a Florida Supreme Court decision. “Florida judges and juries have successfully applied the term for decades. And the (U.S.) Supreme Court has repeatedly upheld use of ‘lewd,’ without further definition, in federal obscenity statutes.”

The motion was filed as the appeals court considers another battle about a ruling last month by U.S. District Judge John Steele that blocked restrictions the city of Naples tried to place on a drag show as part of an upcoming LGBTQ “Pridefest.”

The city appealed the ruling and is asking the 11th Circuit for a stay of Steele’s ruling. The drag show is scheduled Saturday. A stay, if granted, could effectively allow the city to place restrictions on the show.

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