A federal appeals court has affirmed the legality of Florida's 2023 Protection of Children Act, which restricts minors from attending sexualized live performances. The 11th Circuit's 8-5 ruling reverses previous decisions that had blocked the state from enforcing the ban on adult-oriented drag shows.
The 11th Circuit's 8-5 Split on the Protection of Children Act
The full bench of the 11th Circuit Court of Appeals ruled 8-5 to overturn a 2023 decision by Senior District Judge Gregory Presnell, who had previously blocked the law's enforcement. According to the report, the majority opinion written by Judge Brasher emphasized that while the Constitution protects speech, it does not protect obscenity, arguing that sex-based performances appealing to prurient interests are unsuitable for children.
This ruling effectively ends a three-year legal battle that began when Orlando's Hamburger Mary's Restaurant and Bar sued the state. The establishment suoght to protect its ability to host drag shows that it characterized as family-friendly, but the appeals court has now sided with the state's right to regulate such content.
A $10,000 Fine and Potential Jail Time for Organizers
The 2023 Protection of Children Act carries significant criminal penalties for those who violate its terms. As the report indicates, it is now a misdemeanor to knowingly allow a child to attend a live performance that meets the act's definition of obscenity, a crime punishable by up to one year in jail and a $10,000 fine.
The law defines an "adult" performance as any show simulating nudity, sexual conduct,or the exposure of imitation genitals or breasts. While the majority of the 11th Circuit insisted the law targets only obscene performances and not drag shows in general, the strict penalties have led critics to argue the law is designed to intimidate performers.
Florida Joins Texas, Tennessee, Arkansas, and North Dakota
Florida now stands alongside Texas, Tennessee, Arkansas, and North Dakota as the fifth state to actively prohibit miinors from attending adult live performances. This trend reflects a growing movement among conservative-led states to codify restrictions on drag performances and "story hour" events involving drag queens.
This legal victory for Florida contrasts sharply with recent developments in the West. In March,the Ninth Circuit upheld a decision that blocked Montana from enforcing its own ban on drag story hours while a First Amendment challenge continues to move through the courts. This creates a stark judicial divide between the 11th and 9th Circuits regarding the limits of state power over performance art.
The 'Mess-Around-and-Find-Out' Conflict and the Montana Contrast
The ruling was not unanimous, with U.S. Circuit Judge Robin Rosenbaum and four other judges dissenting. Judge Rosenbaum highlighted comments from Florida Governor Ron DeSantis and state Representative Randy Fine—who described drag story time as "gateway propaganda to this evil"—to argue that the law was designed to chill protected speech rather than simply protect children.
Several critical questions remain regarding the practical application of the 2023 Protection of Children Act. Specifically,it remains unclear how law enforcement will objectively measure "prevailing standards of obscenity" during a live performance to determine if a crime has occurred . Furthermore, the report does not clarify if the plaintiffs intend to appeal this 11th Circuit decision to the U.S. Supreme Court, which would be necessary to resolve the conflict between the Florida and Montana rulings.
The Liberty Council, a religious liberty nonprofit, supported the ruling. Its founder, Mat Staver, stated that the decision reinforces the principle that states have a compelling interest in shielding children from obscene content.
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