CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Oct 9, 2024
...Senate Bill 1438
In 2023, Florida enacted Senate Bill 1438, known also as the
Protection of Children Act. See Fla. Laws ch. 2023-94. The Act
makes it a misdemeanor to “knowingly admit a child to an adult
live performance.” Fla. Stat. § 827.11(3)....
...4 Opinion of the Court 23-12160
3. Taken as a whole, is without serious literary, artis-
tic, political, or scientific value for the age of the child
present.
Id. § 827.11(1)(a)....
...like “depicts . . . lewd conduct” and “value for the age of the child
present” make the law’s scope ambiguous and potentially inclusive
of even Hamburger Mary’s “family-friendly” drag performances.
Fla. Stat. § 827.11(1)(a)....
...If those are severe, the penalties for viola-
tions 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. See Fla. Stat.
§§
509.261(10),
561.29(1)(l),
775.082(4)(a),
827.11(4).
When we determine whether a plaintiff faces a “credible
threat” of enforcement, we also look to the statements and prior
actions of state officials that shed light on potential enforcement
USCA11 Case...
...As we explain, the Act is substantially overbroad.
Two provisions—a vague restriction on prohibitions of certain “de-
pict[ions of] . . . lewd conduct” and a fine-grained yet ambiguous
standard of what speech is appropriate for which children—make
it so. Fla. Stat. § 827.11(1)(a)....
...dity, 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.”
See Fla. Stat. §
827.11(1)(a)....
...She continues, asserting the Act then
bars children’s admittance to performances that feature such rep-
resentations and meet all three prongs of the Miller test: appeal to
the prurient interest, patent offensiveness, and the lack of serious
value. Id. § 827.11(1)(a)1–3....
...in the presence of” children under fourteen, Chesebrough,
255 So. 2d
at 676 (emphasis added) (quoting Fla. Stat. §
800.04), the Act here—
which focuses on “depict[ions of] . . . lewd conduct”—squarely tar-
gets speech. Fla. Stat. §
827.11(1)(a) (emphasis added).
Miller is clear that when a state seeks to punish speech as ob-
scene, it must “specifically define[]” the forbidden depictions....
...First, we note that the
ejusdem canon is not strictly on target. The list of prohibited depic-
tions ends not with “lewd conduct” but with something extremely
specific: “the lewd exposure of prosthetic or imitation genitals or
breasts.” Fla. Stat. § 827.11(1)(a)....
...Speech had “seri-
ous value” for minors, the court said, if it “has serious value for a
11 Florida’s pre-existing “harmful to minors” statute, like the Act, does not ad-
just the “appeals to a prurient, shameful, or morbid interest” prong based on
age. See Fla. Stat. §§
827.11(1)(a)1;
847.001(7)(a).
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23-12160 Opinion of the Court 63
legitimate minority of juveniles, ....
...el) approach to protecting mi-
nors from harmful material. The Act adjusts the Miller standards
for what is “patently offensive” and what has “serious value” to be
“for the age of the child present.” Fla. Stat. § 827.11(1)(a)(2)–(3).
USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 64 of 127
64 Opinion of the Court 23-12160
On paper, the Act...
...a benchmark for everyone else. Precedent under the age-variable
standard would be much less helpful. A high court might rule in a
case that some speech has “serious . . . value” for sixteen-year-olds.
Fla. Stat. 827.11(1)(a)(3)....
...The dissent is quick to conclude that the Act’s
scienter requirement shields Floridians from strict liability. Id. at
39. And to be sure, the Act purports to impose liability only when
a defendant knows of or has reason to know of or inquire into a
child’s age. Fla. Stat. § 827.11(1)(b)....
...But what it gives with one
hand it takes away with the other. The Act also provides that “ig-
norance of a child’s age, [or] a child’s misrepresentation of his or
her age . . . may not be raised as a defense.” Id. § 827.11(2)....
...olicies because “[b]y
cutting off parallel lawsuits, nationwide injunctions frustrate
This case could not be more different. The Act deals with one of the
oldest technologies: “live performance.” Fla. Stat. § 827.11(1)(a)....
...te Filed: 05/13/2025 Page: 84 of 127
23-12160 TJOFLAT, J., Dissenting 3
I. Background
In 2023, Florida’s Legislature enacted Fla. Stat. § 827.11, a
statute making it a misdemeanor for a person to knowingly admit
a child to an “adult live performance.” The statute defines that
term, in part, to mean a sexually explicit show that would be ob-
scene in light of the child’s age....
...to an
adult live performance.
(4) A violation of subsection (3) constitutes a misde-
meanor of the first degree, punishable as provided in
s.
775.082 or s.
775.083.
Fla. Stat. §
827.11.
Shortly after the statute’s enactment, an Orlando restaurant
known as Hamburger Mary’s sued Melanie Griffin, in her official
capacity as Secretary of the Florida Department of Business and
Professional Regulation....
...Once again, however,
“perfect clarity and precise guidance have never been required
even of regulations that restrict expressive activity.” Id.
III. The Lewd-Conduct Provision
In reaching its conclusion that Fla. Stat. § 827.11 is both
vague and overbroad, the Majority relies on a key premise—that
the statutory phrase “lewd conduct” must sweep in at least some
protected speech....
...Legislators are not expected to be
omnipotent, but Courts are expected to construe statutes, when-
ever possible, to comply with the limitations outlined in Miller. The
key limitation is that obscene speech depicts sexual acts, of which
Miller provides examples. Here, § 827.11—including its reference
to “lewd conduct”—can and should be construed to satisfy Miller’s
specificity requirement....
...B. Canons of Construction
1. “Mere Surplusage”
The Majority’s analysis continues with the claim that the
phrase “lewd conduct” might be “mere surplusage” because
§ 827.11 also describes some more specific conduct falling within
its prohibition. The Majority’s reasoning is as follows: The statute
defines adult live performances as depicting “lewd conduct, or the
lewd exposure of prosthetic or imitation genitals or breasts.” Maj.
Op. at 42; Fla. Stat. § 827.11(1)(a)....
...at 2670
n.7; Hamling,
418 U.S. at 110–14,
94 S. Ct. at 2904–06.
So why does the Majority not rely on these cases? It says it
cannot do so because Florida has defined away all permissible ap-
plications of “lewd conduct” elsewhere in §
827.11’s text....
...A court’s
role in statutory construction is to consult the myriad interpretive
tools available to glean the statute’s proper meaning. By disregard-
ing all these tools save for one—the surplusage canon—the Major-
ity short-circuits this process and gives Fla. Stat. § 827.11 an artifi-
cially problematic scope.
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18 TJOFLAT, J., Dissenting 23-12160
B...
...at 1946 n.3.
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23-12160 TJOFLAT, J., Dissenting 21
we are not the court charged with authoritatively construing
§ 827.11—that would be the Supreme Court of Florida....
...So we
should be especially reluctant to strike down the statute before that
Court has had the chance to read it.
3. Other Canons
But the list goes on: the Majority’s strained reading of
§ 827.11 bypasses too many interpretive principles to count....
... USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 103 of 127
22 TJOFLAT, J., Dissenting 23-12160
as those terms are defined in s.
847.001.” See Fla. Stat. §
827.11....
...text that accompanies it.” Fischer,
603 U.S. at 487,
144 S. Ct. at 2184.
This approach prevents redundancy—the Majority’s desired end—
but it does so by reading the text harmoniously, rather than pitting
the statute against itself. Here, §
827.11’s enumeration of specific
terms—especially the “specific sexual activities” incorporated from
§
847.001—serves a useful purpose in limiting the statute’s “lewd
conduct” phrase to similar, hard-core depictions of sexual conduct....
...ssenting 23-12160
at what a court might find acceptable, a legislature might prefer the
safer route of omitting examples altogether. Indeed, that may very
well happen here: if this Court ultimately holds that § 827.11 is un-
constitutional, Florida’s legislature could redraft or amend the stat-
ute....
...This sort of fruitless exer-
cise shows why our interpretive canons often err on the side of ju-
dicial restraint: we are not legislators, and our meddling in legisla-
tion risks undesirable results.
Simply put, the question before us is not whether § 827.11 is
stylishly and elegantly written....
...Federalism, Certification, and Comity
There is a more fundamental problem with the Majority’s
decision today: even if every member of this Court were satisfied
that the Majority has read the statute perfectly, we would still not
have the final say on what § 827.11 actually means....
...It has
structured discretion through familiar legal guideposts.
First, the statute does not impose strict liability. A person vi-
olates the statute only if he “knowingly admit[s] a child to an adult
live performance.” Fla. Stat. § 827.11(3)....
...And “knowingly” is de-
fined to require “general knowledge of, reason to know, or a belief
or ground for belief which warrants further inspection or inquiry”
into both the nature of the performance and the child’s age. Id. §
827.11(1)(b)....
...ered directly to the Miller framework. A covered performance must
appeal to a prurient interest, be patently offensive to prevailing
standards, and lack serious value—all “for the age of the child pre-
sent.” Id. § 827.11(1)(a)....
