TALHASSEE – Describing the law as “essentially overloaded,” the federal appeals court on Tuesday upheld a preliminary injunction blocking a 2023 Florida law aimed at preventing children from participating in drug shows.
A panel of the 11th U.S. Circuit Court of Appeals upheld Hamburger Mary at the Central Florida venue in its 2-1 decision, in a First Amendment challenge to the law. The state appealed in 2023 after US District Judge Gregory Presnell issued a temporary injunction.
A majority opinion on Tuesday said, “By providing only vague guidance on which performances ban, the law (the law) exercises shotguns when the First Amendment allows females at best.”
“The Constitution calls for specificity when states restrict speech,” said the 81-page majority opinion written by Judge Robin Rosenbaum, joined by Judge Nancy Abdu. “Clearing speech regulations protects us from the whims of government censorship, and the need for clarity is particularly strong when the government takes the legally strong step of labeling speeches “indecent.” The “I know that” test would make those who arbitrarily enforce speeches unconstitutional.
However, Judge Gerald Tojoflat in his 45-page dissent stated that the majority “read the law in the broadest possible way, maximizing constitutional disputes, and struck the law on wholesale.” He argued that federal courts should have sent the case to the Florida Supreme Court for assistance in interpreting the law, known as “proving” questions to state courts.
“Instead, the majority shun the very tools our system offers: tools designed to respect national authority, nurture committees and avoid unnecessary constitutional rulings,” writes Tjoflat. “By putting these safeguards aside, today’s decision will extend this court beyond its proper role and leave the humility and restraint federal courts pay when state law is at issue.”
The law sponsoring the “Child Protection” bill required venues to prevent children from being allowed to perform live adults. A live adult performance is defined as a show, exhibition, or other presentation performed in front of a live audience, which depicts or simulates, in whole or in part, nudity, sexual activity, sexual arousal or specific sexual activity.
Regulators may suspend or revoke licenses for restaurants, bars, or other venues that violate the law. It also prohibits local governments from issuing public permits for events that could expose children to target behavior.
The law doesn’t specifically mention drug shows, but Governor Ron DeSantis’ administration came after children attended drug shows at venues in South and Central Florida. It also came amid a series of controversial laws passed by Republicans in Florida and other states on transgender-related issues.
The majority opinion on Tuesday focused in part on the use of the term “entry action” in the law. The term is overlord, and Rosenbaum and Abdu said, “We understand the prohibition of laws regarding the depiction of threading acts to reach constitutionally protected speeches, even with regard to minors.”
“As a result, venues like Hamburger Mary tend to restrict minors from consuming speeches that they are within the constitutional rights of access,” the majority said. “And not only that, this law sweep risks indirectly suppressing adults into non-obesity speeches.”
However, Tjoflat writes that while the law’s “term enumerations are not completely sorted by singularity, its order still gives credibility to the idea that “scheduling actions” are intended simply as a catch-all phrase, rather than a major extension of the scope of the law.
“Simply put, the question before us is not whether (the law) is written in style and elegant manner,” writes Tjoflat. “The question is whether the law violates the constitution, and our review requires that we be involved in statutory texts written in good faith and presupposition that legislation does not intend to infringe on constitutional rights. By applying the above principles and examining the law, we can take into account the obvious.
Hamburger Mary was in Orlando at the time of the lawsuit, but later announced plans to move to Kissimmee. In 2023, he said he ran a “family-friendly” drug show for 15 years.
A majority opinion on Tuesday said the fact that Burger Mary left the Orlando location after submitting the assignment was the fact that he didn’t bring the lawsuit. “If companies that suspend businesses but are likely to resume them are involved, the court will take a common-sense approach to assess Mutinez.”
Jim Sanders, Florida news service
