“Family friendly” drag-themed restaurant sues Florida for banning “adult live performances” for minors

“Family friendly” drag-themed restaurant sues Florida for banning “adult live performances” for minors

Hamburger Mary’s, a drag-themed restaurant in Florida, has sued the state to halt enforcement of the recently amended Florida Statute 509.261, which threatens to “fine, suspend, or revoke the license” of an establishment for violations. The law, signed by Florida Governor Ron DeSantis on May 17, 2023, provides for administrative sanctions against licensed establishments “knowingly” allowing minors to attend “adult live performances.”

Hamburger Mary’s “is a restaurant and bar serving alcohol and presents drag show performances, comedy sketches, and dancing.” The complaint alleges the restaurant has had to bar minors from its “family friendly” drag events because of the law, resulting in a substantial loss of revenue due to canceled reservations.

The restaurant claims the law is a deprivation of civil rights under the First and Fourteenth Amendments because it engages in content-based speech discrimination and because its language is vague and overly broad.

The restaurant claims the law targets drag performers based on their identity as such and, therefore, is a content-based regulation, thus subjecting the law to heightened judicial scrutiny. The complaint alleges the law fails to meet this scrutiny because while the government has a compelling interest in protecting children and  that the state could achieve its interest through less restrictive means.

The law relies on the recently amended FS 827.11 for its definition of “adult live performance”:

(a) “Adult live performance” means 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, lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts when it:

1. Predominantly appeals to a prurient, shameful, or morbid interest;
2. 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; and
3. Taken as a whole, is without serious literary, artistic, political, or scientific value for the age of the child present.

FS 847.001(23) provides detailed descriptions of “specific sexual activities” barred by FS 509.261. The complaint, however, argues the law is impermissibly vague because it requires establishments to determine what is appropriate based on the individual child. Since an establishment cannot reliably determine the maturity of a given child, the complaint argues, the establishment cannot know whether any performance the child attends is acceptable, rendering the law impermissibly vague.

FS 827.11 largely relies on the prevailing legal standard enunciated by the Supreme Court in Miller v. California for determining when speech is “obscene” and, therefore, outside the protection of the First Amendment. Determining if materials are obscene depends on

(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest,
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (citations omitted; reformatted for clarity)

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