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Appeals Court Lets Florida Enforce Law Barring Children From Certain Live Performances

The ruling lifts a statewide injunction and permits enforcement of the Protection of Children Act while the constitutional challenge returns to the district court and may be appealed to the Supreme Court.

AUSTIN, TEXAS - AUGUST 26: Children gather to hug Austin, Tx drag queen Brigitte Bandit after a drag time story hour at The Little Gay Shop fashion accessories store on August 26, 2023 in Austin, Texas. SB12, a bill seeking to regulate sexually oriented performances by restricting such performances on the premises of public property, or in the presence of individuals younger than 18 years of age, goes into effect September 1, 2023. The ACLU of Texas is representing local LGBTQ groups, businesses, and drag queen Brigitte Bandit in a lawsuit against state officials enforcing the bill. Among other claims, the lawsuit argues that the bill poses harm and unconstitutional censorship to several types of performers including Broadway plays, theater performances, cheerleading, and drag shows. (Photo by Brandon Bell/Getty Images)
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Drag show for children | ALLISON JOYCE/AFP via Getty Images

Overview

  • The full U.S. Court of Appeals for the 11th Circuit vacated a district court’s statewide preliminary injunction in an 8-5 en banc decision, a ruling the court released Tuesday that clears the way for broader enforcement of Florida’s 2023 law.
  • The Protection of Children Act makes it a misdemeanor to knowingly admit a minor to an ‘‘adult live performance’’ that depicts nudity, sexual conduct, prurient appeal or lewd exposure and creates fines, licensing risk and possible jail time for violators.
  • Writing for the majority, Judge Andrew Brasher said the statute regulates obscenity for minors, is neither overbroad nor vague under Florida precedent, and therefore receives deferential (rational-basis) review at the preliminary stage.
  • A five-judge bloc led by Judge Robin Rosenbaum dissented, arguing the law’s age-based and ‘‘lewd’’ standards are vague, that the statute chills protected speech, and that businesses face guesswork about what performances are lawful.
  • In practical terms the ruling has already prompted venues to cancel or alter family-friendly drag events and tighten age checks, and the case will return to the Middle District of Florida with the possibility of further review by the U.S. Supreme Court.