Florida Ban on “Depict[ing] or Simulat[ing] … Lewd Conduct” in Performances Where Children Are Present Struck Down

A short excerpt from the long opinion today in HM Florida-ORL, LLC v. Governor, decided by Judge Robin Rosenbaum, joined by Judge Nancy Abudu:

Justice Potter Stewart famously offered a non-definition of obscenity: “I know it when I see it.” Jacobellis v. Ohio (Stewart, J., concurring). Many know Justice Stewart’s quip. But it’s not, in fact, the law.

The Constitution demands specificity when the state restricts speech. Requiring clarity in speech regulations shields us from the whims of government censors. And the need for clarity is especially strong when the government takes the legally potent step of labeling speech “obscene.” An “I know it when I see it” test would unconstitutionally empower those who would limit speech to arbitrarily enforce the law. But the First Amendment empowers speakers instead.

Yet Florida’s Senate Bill 1438 (the “Act”) takes an “I know it when I see it” approach to regulating expression. The Act prohibits children’s admission to “live performances” that Florida considers obscene for minors. But by providing only vague guidance as to which performances it prohibits, the Act wields a shotgun when the First Amendment allows a scalpel at most. And Florida’s history of arbitrarily enforcing other, similar laws against performances that are far from obscene only deepens our concerns. We therefore hold that the Act is likely unconstitutional on its face and affirm the lower court’s injunction against its enforcement….

Secretary Griffin argues that the Act dutifully observes [the] requirements [in Miller v. California (1973), the leading precedent on obscenity] so it reaches only unprotected speech. The Act, she argues, “specifically defines” the activities that constitute an adult live performance: anything “depict[ing] or simulat[ing] nudity, sexual conduct, sexual excitement, or specific sexual activities as those terms are defined in [Section] 847.001, lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts.”

She continues, asserting the Act then bars children’s admittance to performances that feature such representations and meet all three prongs of the Miller test: appeal to the prurient interest, patent offensiveness, and the lack of serious value. And, Griffin says, the statute adjusts the standards for the second and third prongs of the Miller test to be “for the age of the child present.” That is, prohibited performances must lack serious “value for the age of the child present” and be “patently offensive … with respect to what is suitable material or conduct for the age of the child present.” …

But the court concluded that the term “lewd conduct” goes beyond the boundaries of Miller, in part because it’s not well-defined:

Miller is clear that when a state seeks to punish speech as obscene, it must “specifically define[ ]” the forbidden depictions. One of the Miller Court’s example definitions—”patently offensive representations or descriptions of … lewd exhibition of the genitals”—proves the point. “Lewd exhibition of the genitals” obviously belongs to the larger category of “lewd conduct.” So if “lewd conduct” were sufficiently specific to meet Miller‘s test, the Court would have had no reason to pro

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