CORRECTION: 11th Circuit Says, “Florida’s - Protection of Children Act Violates Aspects of Free Speech”

Vice Mayor Moore’s adult live performances by drag queens advertised for all ages are still being allowed, for now.

Florida’s Protection of Children Act is currently unenforceable. The Sunshine Journal was unaware of the current ruling on this law that was passed in 2023 and was challenged after it went into effect on July 1st of that year. This correction is given, but the case could still come before the U.S. Supreme Court. The matter is unresolved. It has also been confirmed through multiple sources, the Florida Office of the Attorney General is investigating the incident.

Many communities have varying degrees of what is acceptable when it comes to pornography and adult live performances. However, when it comes to children, communities are very protective of their young citizens being allowed to observe such materials or performances. The City of Vero Beach has an ordinance that says Adult Entertainment businesses are only allowed in ‘Zone M, Industrial.’ To put it another way, they are allowed out by the airport next to where the new sewer plant is being located. In downtown, adult entertainment establishments are illegal.

Like many small towns, these businesses are notoriously off the beaten path, out of the sight of where families and residents normally congregate. In a small town like the Mayberry-esque, Vero Beach, adult live performances of this nature are not of the “prevailing standards in the adult community as a whole with respect to what is suitable material or conduct for the age of the child present.”

That clause in the Protection of Children Act is at the core of the All Age Drag Show controversy. The Kilted Mermaid is not a 24-7 adult entertainment operation as defined in the ordinance. It is a restaurant and bar that has featured many great local musical acts as well as other cultural entertainment. Yet, in the minds of many Vero Beach residents, it has been venturing into that area reserved for Zone M.

The 11th Circuit says…

Even before Justice Potter Stewart declared the infamous words in the 1964 Supreme Court ruling, Jacobellis v. Ohio, 378 U.S. 184, the objectively moral reality has been understood. Concerning pornographic or lewd sexual displays and performances, Judge Stewart concurred, “I know it when I see it.”

The United States 11th Circuit Court of Appeals opening paragraph challenges the common-sense conviction of most Americans, stating, “Many know Justice Stewart’s quip. But it’s not, in fact, the law.”

In a split decision filed on May 13th, the Court of Appeals affirmed that the temporary injunction to enforce Florida’s Protection of Children Act be upheld. Then they dismissed the law. In the 127-page opinion, Judge Robin S. Rosenbaum, stated, “We explain how the Act’s 'depicts . . . lewd conduct' restriction and its age-variable obscenity standard make it overbroad.”

Judge Rosenbaum was referring to violations by the Protection of Children Act to First Amendment free speech provisions. The Protection of Children Act never directly mentions or defines drag shows. Instead, it defines adult live performances 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 (FL OBSCENITY LAW), lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts when it … 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…”

The bold emphasis was made by The Sunshine Journal. In writing the law, the state added the “lewd conduct” clause, which caused alarm for the majority. Judge Rosenbaum wrote, “As we explain in greater detail below, the Act’s vague terms like 'depicts . . . lewd conduct' and 'value for the age of the child present' make the law’s scope ambiguous…”

According to the majority, the ambiguity in the law would cause self-censorship by those who practice this expression of speech because of fear of heavy penalties by the government. The majority also noted, “A vague statute can lead those whose protected speech the statute may not, in fact, prohibit to silence themselves anyway, effectively increasing the statute’s range of impermissible applications.”

Moms for Liberty’s free speech compared to drag queen performances?

As noted in the breaking story, first offense carries a very heavy penalty. Judge Rosenbaum wrote, “In evaluating the reasonableness of self-censorship, we have also looked to the severity of the potential consequences. In one case involving a school board’s speech policy, we described potential penalties of “up to 60 days in jail and a $500 fine” as “severe.” Moms for Liberty - Brevard Cnty. v. Brevard Pub. Schs., 118 F.4th 1324, 1330 (11th Cir. 2024). If those are severe, the penalties for violations of the Act—business-license suspension and fines of up to $5,000 for the first offense or a first-degree misdemeanor prison sentence of up to one year—are grievous.”

The local story in Vero Beach stems from a post by Moms for Liberty chapter chair, Jennifer Pippin, who obtained pictures and copies of Facebook reels posted by The Kilted Mermaid. Like many others, Pippin has devoted herself to accountability measures for government that protect the innocence of children. In the Brevard Moms for Liberty case, it was parents in defense of their children providing evidence in a public forum before a board of their elected officials. Moms were being removed for presenting library book evidence. They were banned from speaking. It wasn’t about a sexually lewd performance allowed to be attended by children that a community has rejected in its standards.

The dissent speaks about universal injunctions. Where have we heard that before?

In his dissent, Judge Gerald B. Tjoflat noted the unconstitutionality of a statewide injunction. In November 2023, Griffin appealed the injunction stopping enforcement and was denied. Judge Tjoflat said, “Judge Brasher dissented… He emphasized that under Article III, established remedial principles, and Circuit precedent, federal courts may grant only the relief necessary to redress the plaintiff’s injury. A universal injunction—one barring enforcement against nonparties—was inappropriate…”

With the ruling last week Trump victoriously received at the Supreme Court concerning universal injunctions, Judge Tjoflat’s opinion is perfectly aligned. Will this portion of the majority opinion be struck?

Furthermore, he noted how the Supreme Court had established precedent in protecting minor children from sexually explicit content and adult only entertainment. The most famous of the cases is Miller vs. California. From the case, the ‘Miller Test’ was derived. Most obscenity statutes are written based on this test. The one thing the Justices noted in Miller was the consideration of minors when discussing free speech. He wrote, “Miller also recognizes the states’ ‘legitimate interest’ in preventing obscene material from being ‘expos[ed] to juveniles.’ (Miller, 413 U.S. at 18–19, 93 S. Ct. at 2612). Miller echoes sentiments expressed in an earlier case, Ginsberg v. New York, where the Court upheld a statute specifically targeting the sale of obscene materials to minors.”

Kilted Mermaid’s Pride celebration on Sunday was explicitly advertised to “all ages.” While the majority of the 11th Circuit proposed that “lewd conduct” was too ambiguous, Judge Tjoflat shared how certain terms met Supreme Court precedent. “In Hamling v. United States, the Court delivered as promised: it construed 18 U.S.C. § 1461—prohibiting “obscene, lewd, lascivious, indecent, filthy[, ] or vile” mailings—as consistent with Miller’s requirements.”

Judge Tjoflat also stated that the Florida Supreme Court should have had first crack at this case. The plaintiff, Hamburger Mary’s of Orlando, was seeking relief from a state law. He said the majority ignored federalism and their Article III limits. He added, “Instead, the Majority chooses a third, unwarranted path: it reads the statute in the broadest possible way, maximizes constitutional conflict, and strikes the law down wholesale.”

After the 11th Circuit decision, the defendant, the Secretary of the Florida Department of Hotels and Restaurants, Melanie Griffin, may apply for a hearing of it at the Supreme Court.

Yet, after most people watch the video posted on Kilted Mermaid’s social media, they know what they saw. Unfortunately, children in attendance saw it too.