Fifth Circuit Presses Intervention Timing in Rare Prairie Chicken Protections

A dissenting opinion from five appellate judges said Florida “purposely created a mess-around-and-find-out statute to chill drag.” Drag performer Velvet LeNore joins dancers on stage during the gala at the Florida Democratic Party's Annual Leadership Blue Weekend at the Fontainebleau Hotel on Miami Beach, Fla., Saturday, July 8, 2023. (Al Diaz/Miami Herald via AP) ATLANTA (CN) — The Sunshine State can ban minors from attending “adult live performances” like drag shows, the full bench of the 11th Circuit decided in a divided opinion Tuesday. “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.” In an 8-5 decision , the federal appellate court overturned a Florida federal judge’s injunction blocking state officials from enforcing the Protection of Children Act . Although a divided three-judge panel of the 11th Circuit last year upheld the injunction , a majority of judges voted to vacate that decision in December and reheard the case en banc in June. 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 initial ruling by Bill Clinton-appointed Senior U.S. District Judge Gregory Presnell to block the act came after Hamburger Mary’s Restaurant and Bar — an Orlando business known for hosting family-friendly drag shows — sued to block enforcement of the law under the First and 14th Amendments. The 2023 law defines an “adult live performance” as any show which 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 law makes it a misdemeanor to knowingly admit a child to any live performance that predominantly appeals to a “prurient, shameful or morbid interest,” is offensive to “prevailing standards” with respect to what is suitable for the age of the child present and is “without serious literary, artistic, political or scientific value for the age of the child present.” Attorneys for the plaintiff argued the law’s use of the word “lewd” and the phrase “age of the child present” in its criteria are unconstitutionally vague. But the majority ruled “lewd” has been clearly defined by the Florida Supreme Court as “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.” “It is difficult to imagine any sex-based performance that predominantly appeals to a prurient interest being suitable for a child of any age. Nor has Hamburger Mary’s identified any such hypothetical performance,” wrote Brasher, an appointee of Donald Trump. The majority also ruled the lower court lacked authority to hand down a universal injunction preventing enforcement of the law against “anyone and everyone” in Florida. While the majority staked Tuesday’s opinion on a finding that the law is