Split Eleventh Circuit Panel Enjoins Florida Obscenity Law: Does Florida’s Protection of Children Act Violate the Original Understanding of the Free Speech Clause?

A recent decision by a divided panel of the Eleventh Circuit is the latest misuse of judicial power to thwart democratically-enacted, common-sense morals regulation that is meant to protect the innocence of children. Like Lucy pulling the football away from Charlie Brown, the federal courts often give lip-service to the long-established understanding that obscenity is not protected speech, but they nevertheless contrive ways to prevent the people’s representatives from meaningfully regulating it. The result is a culture awash in obscenity, made worse by technology, with little protection for families and children.

Obscenity laws are often condemned for vagueness, overbreadth, or lack of specificity by complaining parties and solicitous judges. But the Constitution, especially as originally understood, does not require the suspension of common sense in evaluating these laws—even by judges. Nor does it require legislative bodies to identify in advance every conceivable word, act, or combination thereof that is obscene. People generally know the difference between communicating ideas about sex and romance in good faith, which is protected, and mindless expressive conduct that aims only to elicit sexual arousal, which is not. Unfortunately, an Eleventh Circuit panel has resorted to the Lucy-Charlie Brown football routine to deny the people of Florida their sovereign power to protect children from obscene live performances.

Florida’s SB 1438

In HM Florida-ORL, LLC v. Governor of Florida, the panel affirmed a facial, statewide preliminary injunction against Senate Bill 1438, a law enacted by the Florida Legislature in 2023. Dubbed the Protection of Children Act, the law establishes criminal and administrative penalties for “knowingly” admitting anyone under age 18 to an “adult live performance.” The Act defines such a performance as

any show, exhibition, or other presentation in front of a live audience which, in whole or in part, depicts or simulates nudity, sexual conduct, sexual excitement, or specific sexual activities as those terms are defined in s. 847.001, lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts when it:

1. Predominantly appeals to a prurient, shameful, or morbid interest;
2. Is patently offensive to prevailing standards in the adult community of this state as a whole with respect to what is suitable material or conduct for the age of the child present; and
3. Taken as a whole, is without serious literary, artistic, political, or scientific value for the age of the child present.

The terms “nudity,” “sexual conduct,” “sexual excitement,” and “specific sexual activities” are defined elsewhere in the chapter with the sort of detail that will make the average reader blush, but the broader, catch-all term “lewd conduct” is not. Nevertheless, the Florida Supreme Court has defined the word “lewd” when used in other criminal statutes as “an unlawful indulgence in lust, eager for sexual indulgence.”

The legislature enacted SB 1438 in the wake of public outcry over sexualized drag performances where children were present. In one particularly high-profile instance, a topless performer with exposed breasts covered only by so-called “pasties” and wearing a “g-string”-style bottom stuffed with dollar bills was filmed parading a bewildered toddler around by the hand. In another instance, a venue hosted a sexually indecent show titled “A Drag Queen Christmas,” which was promoted as open to children of all ages and in fact admitted children under the age of 16, including little ones appearing to be less than 6 years old. During the show, performers wore sexually suggestive clothing, engaged in sexually provocative dance routines with background videos that depicted exposed female breasts and other sexually suggestive content, and exposed their buttocks and prosthetic female breasts and genitalia to the audience, all in coordination with sexualized adaptations of popular children’s Christmas songs.

The Florida Department of Business and Professional Responsibility brought enforcement actions against the venues under existing laws to temporarily suspend their alcohol licenses, which the Department ultimately settled. The legislature passed SB 1438 to strengthen those laws, close enforcement gaps, and make clear that admitting children, especially young children, to live performances of this nature is prohibited in Florida.

SB 1438 does not target drag shows. It does not even mention drag shows, nor does it address itself to impersonations of one sex by the other, as other state laws have done. The law is strictly limited to live performances that involve an appeal to sexual indulgence, whether such appeal is done in drag or not. The law applies just as well to the traditional male or female striptease. Non-sexualized drag performances are not implicated.

SB 1438 is also strictly limited to sexualized live performances that admit children to the audience. Nothing in the law prohibits establishments from hosting such performances or prohibits adults from attending them. It merely requires the exclusion of children as to whom the performances would be legally obscene. Any burden on adults is therefore nonexistent, or at most negligible.

Under the well-known Miller test, speech is obscene and thus unprotected by the First Amendment if (1) “the average person, applying contemporary community standards would find that the work, taken as whole, appeals to the prurient interest”; (2) “the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law”; and (3) “the work, taken as a whole lacks serious literary, artistic, political, or scientific value.”

But in Ginsberg v. New York, the Supreme Court held that states have the power to adjust the definition of obscenity by permitting the appeal of sexualized speech or expression to be assessed in terms of the sexual interests of minors. To protect younger children from performances that may be obscene for them but not for older children, SB 1438 adjusts the definition of obscenity, as Ginsberg permits it to do, by employing an innovation that requires the trier of fact to determine, for purposes of the second element of the Miller test, whether the performance is patently offensive with respect to what is suitable “for the age of the child present,” and, for purposes of the Miller test’s third element, whether the performance “is without serious literary, artistic, political, or scientific value for the age of the child present.” The law thus tailors the obscenity analysis to the age of the child admitted to the performance, not to the age of all minors as an undifferentiated mass.

The Eleventh Circuit’s Decision

Two judges on the Eleventh Circuit panel reviewing SB 1438 were unpersuaded that the law satisfied the First Amendment’s requirements (the third dissented). The majority faulted the Florida Legislature in two main respects. First, the panel majority criticized the legislature for including “lewd conduct” among the types of conduct specified by the law as actionable if depicted in a way that violates the Miller test. Even accepting the Florida Supreme Court’s definition of “lewd,” the majority nevertheless concluded that the term was not specific enough to (1) satisfy the requirement in Miller that the depicted “conduct must be specifically defined by the applicable state law, as written or authoritatively construed,” or (2) avoid unconstitutional overbreadth. Because the law defines in explicit detail “nudity,” “sexual conduct,” “sexual excitement,” and “specific sexual activities,” the majority concluded that the inclusion of “lewd conduct” either must be redundant (which the majority doubted) or must include “sexual, ‘lewd conduct’ that is not ‘sexual conduct’” (which the majority thought more likely). The majority claimed to be “stumped” by what such conduct could possibly entail.

The majority declared the “lewd conduct” provision to have “in essence no ‘legitimate sweep’” for purposes of First Amendment overbreadth, because “the rest of the Act’s prohibitions cover the bulk of content that can be deemed obscene under Miller.” In other words, all the legitimate applications of the “lewd conduct” provision go out the window and no longer weigh in the overbreadth balance because they overlap with what the majority concedes to be entirely legitimate applications of the remainder of the statute. But nothing in First Amendment overbreadth doctrine requires that legitimate applications of a statute be negated when they happen to arise from overlapping statutory terms.

And further, it really isn’t hard to understand how the “lewd conduct” provision works as a catch-all. As defined in Section 847.001, the terms “nudity,” “sexual conduct,” “sexual excitement,” and “specific sexual activities” are narrowly cabined to nudity, actual or simulated sex acts, including sexual battery, or states of sexual arousal. As defined by the Florida Supreme Court, “lewd” is indulgence in lust or eagerness for sexual indulgence. Such conduct need not necessarily involve nudity, actual or simulated sex acts, or displays of sexual arousal. It could include, for example, a dance routine performed by a minimally clad (but not nude) performer in such a manner as to elicit sexual arousal. The majority speculated that the definition of lewd conduct could include content about “birth control practices,” “homosexuality,” or “the consequences of prison rape.” But conduct that is lewd must involve indulgence in lust or eagerness for sexual indulgence. None of these examples inherently involves any such appeal.

Moreover, the majority suggested that under Miller, only “hard-core” sexual content may be considered obscene, even for children, and that this means there must be some exposure of a person’s genitals for expressive conduct to be unprotected by the First Amendment. But this ignores the Supreme Court’s acknowledgment in Ginsberg that states have the power to adjust the definition of obscenity to account for the interests of minors.

The majority also concluded that SB 1438’s use of an age-variable Miller test rendered the law unconstitutionally overbroad. But this test is tailored to ensure that content for teenagers is not treated the same as content for toddlers, and vice versa. Such tailoring would seem to be a virtue. But the majority has effectively created a rule whereby obscenity for all children, including toddlers, is determined by what is appropriate for a 17-year-old, unless the legislature “wishes to describe in detail which depictions it considers obscene for which ages”—a virtually impossible task for any legislative body.

The Original Meaning of the Free Speech Clause

At bottom, the panel majority condemns SB 1438 for failing to describe with sufficient detail all conceivable types of sexual conduct the depiction of which constitute obscenity and charges the legislature with taking an “I know it when I see it” approach to defining the prohibited conduct. Leaving aside that this characterization of SB 1438 is simply untrue, the majority asks too much of the legislature—especially in light of the original understanding of the First Amendment. At the time of the Founding, the right to free speech—that is, the freedom to speak, write, and publish one’s thoughts, ideas, beliefs, and opinions—was understood to be a natural right. But natural rights were also understood to be limited by the natural law—that is, the moral law. Abraham Lincoln put it best in his debate with Stephen Douglas when he declared that one “cannot say people have a right to do wrong.”

It should be no surprise, then, that during the Founding era, many states (including those that expressly recognized the freedom of speech) punished libel, blasphemy, profanity, and obscenity. The law recognized a distinction between, on one hand, communicating ideas, even unpopular ones, in good faith and with respect for others, which was protected; and, on the other hand, communicating falsehoods to besmirch the reputation of others (libel and defamation), maliciously ridiculing religion to outrage others and breach the peace (blasphemy), and expressing raw emotion—not so much ideas—with words or conduct that are known to scandalize or corrupt others (profanity and obscenity), all of which were not protected. And the law appreciated that a person of common sense would know the difference.

Founding-era laws likely did not detail every conceivable obscene word or act that was proscribed, as the panel majority says the Florida Legislature should have done here. Indeed, in Roth v. United States, the first Supreme Court case to formally hold that obscenity is not protected by the First Amendment, the Court quoted an early Massachusetts law that made it a criminal offense to publish “any filthy, obscene, or profane song, pamphlet, libel or mock sermon”—hardly the fastidious detail demanded by the panel majority. Although the majority makes light of Justice Potter Stewart’s famous admission that he found it difficult to define obscenity but “I know it when I see it,” the reality is that most of the time people do know it when they see it. They know the difference between a rank appeal to sexual indulgence and the good faith communication of ideas, including sober explorations of sexual indulgence. The Constitution does not require legislatures to play whack-a-mole. And when marginal cases arise, as they surely will, the Supreme Court has said “we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide.”

By targeting lewd conduct that appeals to the prurient interest, is patently offensive to the adult community based on the age of the child present, and lacks serious literary, artistic, political, or scientific value for the age of the child present, SB 1438 provides plenty of guidance to the public and covers only expressive conduct that has no claim to protection under the First Amendment when children are present. The opinion to the contrary in HM Florida-ORL leaves the distinct impression that, for some federal judges, no standard of obscenity will ever be good enough.