HM Florida-ORL, LLC v. Secretary of the Florida Department of Business and Professional Regulation

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 1 of 127

[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12160

____________________

HM FLORIDA-ORL, LLC,

Plaintiff-Appellee,

versus

GOVERNOR OF FLORIDA, et al.,

Defendants,

SECRETARY OF THE FLORIDA DEPARTMENT OF BUSINESS

AND PROFESSIONAL REGULATION,

Defendant-Appellant.

____________________

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 2 of 127

2 Opinion of the Court 23-12160

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:23-cv-00950-GAP-LHP

____________________

Before ROSENBAUM, ABUDU, and TJOFLAT, Circuit Judges.

ROSENBAUM, Circuit Judge:

Justice Potter Stewart famously offered a non-definition of

obscenity: “I know it when I see it.” Jacobellis v. Ohio, 378 U.S. 184,

197 (1964) (Stewart, J., concurring). Many know Justice Stewart’s

quip. But it’s not, in fact, the law.

The Constitution demands specificity when the state re-

stricts 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 his-

tory of arbitrarily enforcing other, similar laws against

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 3 of 127

23-12160 Opinion of the Court 3

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.

I. Background

A. 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). An “adult live perfor-

mance” is

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 excite-

ment, or specific sexual activities as those terms are

defined in s. 847.001, lewd conduct, or the lewd expo-

sure 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

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 4 of 127

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). The preexisting Section 847.001, part of a chapter

entitled “Obscenity,” in turn defines “nudity,” “sexual conduct,”

“sexual excitement,” and “specific sexual activities” in great detail.

Id. § 847.001(11), (19), (20), (23). A “child” is “any person . . .

younger than 18 years of age.” Id. § 847.001(10).

The Act also allows the Florida Department of Business and

Professional Regulation (“FDBPR”) to fine or revoke the licenses

of eating, drinking, and lodging establishments that admit a child

to an adult live performance. Fla. Laws ch. 2023-94 §§ 1–3 (codified

at Fla. Stat. §§ 255.70, 509.261, 561.29).

B. The Act and Drag Shows

Though the Act applies to a range of “adult live perfor-

mances,” its enactors focused on how it would restrict one partic-

ular type of performance: drag shows. When signing the Act into

law, Florida’s governor described it as being about “adult perfor-

mances . . . like those drag shows.” FOX 13 Tampa Bay, Full Press

Conference: Governor Ron DeSantis Signs Education Bills in Tampa,

YOUTUBE, AT 8:22 (May 17, 2023),

https://www.youtube.com/watch?v=t1kIP2dd2xc

[https://perma.cc/U3LC-K4S8]. One of the Act’s legislative spon-

sors said it would “protect our children by ending the gateway

propaganda to this evil—‘Drag Queen Story Time.’” State Repre-

sentative Randy Fine, FACEBOOK (Mar. 3, 2023),

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 5 of 127

23-12160 Opinion of the Court 5

https://www.facebook.com/vot-

erandyfine/posts/761831661970637 [https://perma.cc/5ENU-

FPTD].

Florida has a history of efforts aimed at restricting drag

shows and venues. Before the Act’s passage, FDBPR brought ad-

ministrative proceedings to revoke the liquor licenses of several

drag venues. One administrative action alleged a drag show had

violated Florida’s law against “lewd and lascivious exhibition in the

presence of a minor”—despite the government inspectors’ report

that “agents did not witness any lewd acts.” Nicholas Nehamas &

Ana Ceballos, Florida Undercover Agents Reported No “Lewd Acts” at

Drag Show Targeted by DeSantis, TAMPA BAY TIMES (Mar. 20, 2023),

https://www.tampabay.com/news/florida-poli-

tics/2023/03/20/desantis-drag-show-lewd-liquor-license-com-

plaint-lgbtq [https://perma.cc/GX43-42HR]. Another FDBPR

complaint cited “graphic depictions of childbirth and/or abortion”

as an example of “sexual conduct, simulated sexual activity, and

lewd, vulgar, and indecent displays.”

C. Hamburger Mary’s

Plaintiff-Appellant HM Florida-ORL, LLC (“Hamburger

Mary’s”), operates Hamburger Mary’s Restaurant and Bar. Ac-

cording to its initial, verified complaint, Hamburger Mary’s regu-

larly hosted a variety of drag performances before Florida passed

the Act. On Sundays it presented drag performances it considered

“family friendly” and invited children to attend. These shows fea-

tured no “lewd activity . . . or anything inappropriate for a child to

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 6 of 127

6 Opinion of the Court 23-12160

see.” The restaurant also hosted other “drag-centric performances,

comedy sketches, bingo, trivia, and dancing.” Among these, Ham-

burger Mary’s warned its patrons that some were “not suitable for

children.”

In response to the Act, though, Hamburger Mary’s canceled

its family drag shows and barred children from attending any of its

other shows. The restaurant feared losing its business or liquor li-

censes if it violated the Act. After Florida adopted the Act, Ham-

burger Mary’s lost twenty percent of its bookings.

II. Procedural History

Shortly after Florida’s governor signed the Act, Hamburger

Mary’s sued Florida, its governor, and FDBPR Secretary Melanie

Griffin in her official capacity. The parties later agreed to the dis-

missal of all defendants except Defendant-Appellant Griffin.

Hamburger Mary’s sued under 42 U.S.C. § 1983 and alleged

that the Act was void for vagueness, overbroad, and was a content-

based speech regulation that failed strict scrutiny, in violation of

the First and Fourteenth Amendments. Based on these allegations,

Hamburger Mary’s sought an injunction against then-Defendants’

enforcement of the Act. The restaurant also moved for a tempo-

rary restraining order and preliminary injunction against enforce-

ment. Then-Defendants responded and moved to dismiss the case.

After considering the filings, the district court issued a pre-

liminary injunction and denied the motion to dismiss. The court

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 7 of 127

23-12160 Opinion of the Court 7

enjoined Griffin’s enforcement of the Act, against Hamburger

Mary’s or anyone else.

Griffin appealed and moved in this Court to stay the injunc-

tion pending appeal as to any entities other than Hamburger

Mary’s. A split panel denied that motion for a partial stay. HM

Florida-ORL, LLC v. Governor of Fla., No. 23-12160, 2023 WL 6785071

(11th Cir. Oct. 11, 2023) (per curiam). Then Griffin applied to the

Supreme Court for a partial stay of the injunction. The Court de-

nied that application. Griffin v. HM Florida-ORL, LLC, 144 S. Ct. 1

(2023) (mem.).

III. Standard of Review

We review for abuse of discretion a district court’s grant of

a preliminary injunction. Gonzalez v. Governor of Ga., 978 F.3d 1266,

1270 (11th Cir. 2020). In conducting our review, we evaluate legal

conclusions de novo and factual findings for clear error. Id.

A party seeking injunctive relief must also show that it has

standing to bring the case. “To establish standing, the plaintiffs

must demonstrate a substantial risk that, in the near future, they

will suffer an injury that is traceable to a Government defendant

and redressable by the injunction they seek.” Murthy v. Missouri,

603 U.S. 43, 49–50 (2024). The strength of proof required differs at

separate stages of the litigation; “[a]t the preliminary injunction

stage, . . . the plaintiff must make a ‘clear showing’ that she is

‘likely’ to establish each element of standing.” Id. at 58 (quoting

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)).

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 8 of 127

8 Opinion of the Court 23-12160

IV. Discussion

Our discussion proceeds in four parts. First, we explain why

Hamburger Mary’s has standing to sue here. Second, we show that

the restaurant’s relocation does not moot its claim. Third, we ex-

amine whether Hamburger Mary’s First Amendment claim is

likely to succeed on the merits. We explain how the Act’s “depicts

. . . lewd conduct” restriction and its age-variable obscenity stand-

ard make it overbroad. Based on that discussion, we conclude that

the district court correctly enjoined the Act’s enforcement. Last,

we discuss the scope of the injunction and show that statewide re-

lief is warranted here.

A. Hamburger Mary’s has standing to bring this case.

A threshold issue here, as in every suit, is standing. Under

Article III of the Constitution, for us to enjoy jurisdiction over this

suit, Hamburger Mary’s must have standing. Standing helps assure

us that we are hearing a “case[]” or “controvers[y].” See Wilding v.

DNC Servs. Corp., 941 F.3d 1116, 1124 (11th Cir. 2019) (citing Spokeo,

Inc. v. Robins, 578 U.S. 330, 338 (2016)). In particular, standing doc-

trine has been “developed primarily to ensure that the person seek-

ing to litigate a claim is the ‘right’ person to advance the claim.”

Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1280 (11th

Cir. 2001).

To establish standing, a plaintiff must show three familiar

things: “(1) . . . an injury in fact, (2) that is fairly traceable to the

challenged conduct of the defendant, and (3) that is likely to be

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 9 of 127

23-12160 Opinion of the Court 9

redressed by a favorable judicial decision.” Spokeo, 578 U.S. at 338

(citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). We

address each element in turn. But our analysis concentrates on the

injury-in-fact requirement because it is the parties’ main point of

contention.

i. Hamburger Mary’s has sufficiently alleged in-

jury in fact to establish standing for its pre-en-

forcement suit.

The injury-in-fact requirement could create a dilemma for

anyone seeking to challenge a statute: either violate the law to pro-

voke an enforcement action and establish standing or steer clear of

a violation and avoid injury but lose standing to sue. Because of

this conundrum, special standing rules govern pre-enforcement

suits like this one.

A plaintiff bringing a pre-enforcement challenge to an en-

acted law must show it intends to “engage in a course of conduct”

that the Constitution arguably protects but a law prohibits or oth-

erwise unconstitutionally burdens, and “a credible threat of prose-

cution” exists under that law. Babbitt v. United Farm Workers Nat’l

Union, 442 U.S. 289, 298 (1979). Of course, no party wants to tell a

court that it intends to violate a law, and we do not ask parties to

do so. Indeed, “[n]othing in [the Supreme] Court’s decisions re-

quires a plaintiff who wishes to challenge the constitutionality of a

law to confess that he will in fact violate that law.” Susan B. Anthony

List v. Driehaus, 573 U.S. 149, 163 (2014) (citing Babbitt, 442 U.S. at

301).

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 10 of 127

10 Opinion of the Court 23-12160

“[W]e apply the injury-in-fact requirement most loosely

when First Amendment rights” are at stake, “lest free speech be

chilled even before the law or regulation is enforced.” Harrell v. The

Fla. Bar, 608 F.3d 1241, 1254 (11th Cir. 2010) (citing Hallandale Prof.

Fire Fighters Loc. 2238 v. City of Hallandale, 922 F.2d 756, 760 (11th

Cir. 1991)). So self-censorship—that is, “forgo[ing] expression in

order to avoid enforcement consequences”—can constitute an in-

jury for standing purposes. Id. (quoting Pittman v. Cole, 267 F.3d

1269, 1283 (11th Cir. 2001)).

In that respect, a plaintiff need not show that its self-censored

speech would definitely run afoul of a challenged law, but only that

its speech is “arguably proscribed.” Driehaus, 573 U.S. at 162. In

other words, self-censorship establishes standing when “‘the oper-

ation or enforcement’ . . . of the government policy would cause a

reasonable would-be speaker to ‘self-censor.’” Speech First, Inc. v.

Cartwright, 32 F.4th 1110, 1120 (11th Cir. 2022) (cleaned up) (quot-

ing Ga. Latino All. for Hum. Rts. v. Governor of Ga., 691 F.3d 1250,

1257 (11th Cir. 2012), and Wollschlaeger v. Governor, Fla., 848 F.3d

1293, 1305 (11th Cir. 2017) (en banc)). That is, we ask whether a

state policy “objectively chills” protected expression. Id. (citing

Speech First, Inc. v. Fenves, 979 F.3d 319, 330–35 (5th Cir. 2020)).

As for the requirement of a credible threat of prosecution,

“[i]f a challenged law or rule was recently enacted . . . an intent to

enforce the rule may be inferred.” Harrell, 608 F.3d at 1257 (citing

Int’l Soc’y for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d 809,

821 (5th Cir. 1979)). Put simply, a credible threat of prosecution

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 11 of 127

23-12160 Opinion of the Court 11

inheres in any recently passed law because we “assume that law en-

forcement agencies will not disregard . . . a recent expression of the

legislature’s will.” Id. (alteration in original) (quoting Eaves, 601

F.2d at 821).

Finally, vagueness challenges under the First Amendment

have their own standing standards. To establish an injury from

self-censorship because of a statute’s vagueness, a plaintiff must

show “(1) he seriously wishes to [speak]; (2) such [speech] would

arguably be affected by the rules, but the rules are at least arguably

vague as they apply to him[;] and (3) there is at least a minimal prob-

ability that the rules will be enforced, if they are violated.” Id. at

1254 (citations and footnote omitted).

Despite these lenient standards, Griffin argues that Ham-

burger Mary’s lacks standing for a preliminary injunction. The

crux of Griffin’s argument is that Hamburger Mary’s has not shown

any intent to engage in “arguably proscribed” speech. In support

of its contention, Griffin points to the restaurant’s statement that

its family-friendly performances contained “no lewd activity, sex-

ually explicit” content, or anything else inappropriate for a child.

And so, Griffin reasons, no reasonable person could think such per-

formances fall within the ambit of the Act. By canceling these per-

formances, Griffin argues, the restaurant is doing what I have pre-

viously characterized as “flopping”—faking an injury. See Am. All.

for Equal Rts. v. Fearless Fund Mgmt., LLC, 103 F.4th 765, 780 (11th

Cir. 2024) (Rosenbaum, J., dissenting).

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 12 of 127

12 Opinion of the Court 23-12160

We disagree; Hamburger Mary’s has shown enough on this

record to establish a real injury under governing standards. We

base our conclusion on four things: the facts Hamburger Mary’s

alleged in its verified complaint, the vague text of the statute, Flor-

ida officials’ prior enforcement actions and statements about drag

shows, and the lenient standards for standing in First-Amendment

suits.

To be sure, Hamburger Mary’s believes its family-friendly

performances contain no “lewd” or “sexually explicit” content.

And the restaurant would surely argue exactly that if it had to de-

fend against an enforcement action under the Act. But Hamburger

Mary’s also makes clear that its drag shows, like almost all shows

in the genre, involve performers wearing “clothing more conven-

tionally worn by the other sex” and often “[p]rosthetic breasts.”

And it notes that some people might consider even “a man in a

dress” reading to young children to violate the statute.

Bearing in mind the speech Hamburger Mary wishes to un-

dertake, we ask whether it was “reasonable” for the restaurant to

self-censor. Speech First, 32 F.4th at 1120. And based on the consid-

erations our Court has looked to before, we believe it was.

First, the Act’s vagueness makes Hamburger Mary’s self-

censorship more reasonable. A speech restriction’s “imprecision

exacerbates its chilling effect.” Id. at 1121. This consequence of

vague speech laws of course implicates their constitutionality. See,

e.g., Grayned v. City of Rockford, 408 U.S. 104, 109 (1972). And it also

affects our self-censorship standing analysis by making a broader

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 13 of 127

23-12160 Opinion of the Court 13

range of self-censorship a “reasonable” response. Speech First, 32

F.4th at 1121.

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 and potentially inclusive

of even Hamburger Mary’s “family-friendly” drag performances.

Fla. Stat. § 827.11(1)(a). After all, no less than the federal govern-

ment has recently indicated its intent to police firm “sex-based dis-

tinctions,” including those related to people’s “appearance.” Exec.

Order No. 14168, 90 Fed. Reg. 8615 (Jan. 20, 2025). The possibility

that FDBPR might view a gender-bending but chaste drag perfor-

mance as “lewd” and lacking “value” is far from an unreasonable

conclusion.

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 poten-

tial 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 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: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 14 of 127

14 Opinion of the Court 23-12160

plans. For example, if those responsible for enforcing a challenged

law say clearly and definitively that a would-be plaintiff’s planned

speech would not violate the law, the plaintiff may lack standing

(or a lawsuit may be mooted). See, e.g., Graham v. Butterworth, 5

F.3d 496, 500 (11th Cir. 1993); Wilson v. State Bar of Ga., 132 F.3d

1422, 1428–29 (11th Cir. 1998).

On the other hand, anything less than a “clear disavowal of

enforcement” does not divest a plaintiff of standing. Brown v. Kemp,

86 F.4th 745, 769 (7th Cir. 2023). See also Wollschlaeger, 848 F.3d at

1306 (nonbinding letter disavowing enforcement in general terms

did not deprive plaintiff of standing, especially given defendant’s

previous contradictory positions); Speech First, 32 F.4th at 1121–22

(counsel’s equivocation as to whether particular statements vio-

lated speech code illustrated credible threat of enforcement).

Griffin has done little to mitigate the threat of enforcement.

A declaration from FDBPR’s deputy general counsel asserted that

the drag shows FDBPR had previously deemed problematic “differ

significantly” from those Hamburger Mary’s describes. But the

declaration pointedly did not clarify the boundaries of impermissi-

ble performances nor commit to nonenforcement. And it would

defeat decades of First Amendment jurisprudence to allow states

to impose laws whose “breadth—and slipperiness” obfuscate their

reach, then dodge lawsuits by saying plaintiffs are confused as to a

law’s scope. Speech First, 32 F.4th at 1122. The government cannot

shroud rules in foggy language and then blame would-be speakers

for their fears of what may lurk in the fog.

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 15 of 127

23-12160 Opinion of the Court 15

And FDBPR’s prior enforcement actions against other drag

venues do little to assuage a reasonable speaker’s fears. True, as

FDBPR has argued, those shows seemed to be somewhat more ris-

qué than the Sunday “family” shows at Hamburger Mary’s. And

of course, the FDBPR’s prior administrative actions alleged viola-

tions of different statutes. Still, two things about those enforce-

ment actions reinforce the “credible threat” of FDBPR’s enforce-

ment of the Act.

First, in at least one instance, FDBPR alleged that a drag

show featured “lewd” acts despite its own inspector’s determina-

tion to the contrary. See Nehamas & Ceballos, supra. FDBPR lead-

ership need not agree with its own inspector’s conclusion. But this

internal disagreement points to the malleability of the speech stat-

utes regulating “lewd” conduct (like the Act) that the FDBPR en-

forces.

Second, FDBPR’s prior enforcement actions reinforce a rea-

sonable observer’s sense that when the Department watches drag

shows, it is likely to see something it thinks lewd, regardless of its

actual content. Twice, FDBPR alleged a particular drag perfor-

mance featured “lewd, vulgar, and indecent displays” including

“graphic depictions of childbirth and/or abortion.”

But based on FDBPR’s photographs (provided as exhibits),

the offending depiction seems to have been a performance by a

drag artist named “Jimbo.” One of Jimbo’s signature acts involves

donning Marcel Marceau-like makeup, a prosthetic stomach and

backside, and a stretchy, full-body white suit (leaving no skin or

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 16 of 127

16 Opinion of the Court 23-12160

prosthetic skin visible other than the face). Jimbo dances and

prances onstage, lip-syncing to Björk’s cover of Betty Hutton’s 1951

song “It’s Oh So Quiet,” before undoing a hidden zipper on the

stomach’s underside and pulling from within . . . a pile of baloney.

See Kathy Sparkles, Baloney with Jimbo from Drag Race, YOUTUBE

(Nov. 27, 2022),

https://www.youtube.com/watch?v=wk5H4LvHmFU

[https://perma.cc/SRP8-DP8B]. Perhaps some may consider

Jimbo’s baloney birth a bit odd (and hammy in every sense of the

word). But FDBPR seems to think the act “outrage[s] the sense of

public decency,” is “nasty, suggestive, and indecent,” or is “ob-

scene,” even for adults. 1 If FDBPR believes Jimbo’s baloney birth

was legally problematic even before the Act, it is reasonable for

Hamburger Mary’s to fear that FDBPR might enforce the new

law—presumably passed to expand the range of prohibited perfor-

mances—against even tame drag shows. And standing law doesn’t

1 In its complaints about drag revues featuring Jimbo, FDBPR alleged that the

defendant drag venues featured a variety of problematic displays. FDBPR

cited Jimbo’s performance as presenting “sexual conduct, simulated sexual ac-

tivity, and lewd, vulgar, and indecent displays, including . . . graphic depictions

of childbirth.” FDBPR then charged defendants with violating a number of

Florida statutes, ranging from prohibitions of “lewd or lascivious exhibition,”

Fla. Stat. § 800.04(7), and vulgar or indecent “exposure of sexual organs,” Fla.

Stat. § 800.03, to bans on “obscene show[s] . . . by a live person before an au-

dience,” Fla. Stat. § 847.011(4), distribution of “obscene material to a minor,”

Fla. Stat. § 847.0133, and “public nuisances” or “disorderly conduct.” Fla. Stat.

§§ 823.05, 877.03.

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 17 of 127

23-12160 Opinion of the Court 17

require a party in Hamburger Mary’s pickle to take a chance and

find out it was right to fear FDBPR’s enforcement.

Legislators’ descriptions of the Act also show that Ham-

burger Mary’s fear is reasonable. One of the Act’s key legislative

proponents declared the law was meant to “end[] . . . ‘Drag Queen

Story Time.’” State Representative Randy Fine, supra. Drag

Queen Story Time, also called Drag Queen Story Hour, involves

drag performers simply reading children’s books to young audi-

ences. See generally Jaweed Kaleem, How Drag Queen Story Hour Be-

came a Battle over Gender, Sexuality and Kids, L.A. TIMES (Feb. 22,

2023, 3:00 AM PT), https://www.latimes.com/world-na-

tion/story/2023-02-22/drag-queen-story-hour

[https://perma.cc/4DKD-Y8YC]. If any legally kid-friendly drag

performances exist under the Act—and Griffin insists they do—

Drag Queen Story Time would seem to be one. But at least one

key legislator disagrees. This lends credibility to Hamburger

Mary’s fear of an enforcement action.2

2 To be clear, we aren’t looking to the legislative history to interpret the Act’s

meaning. See Polycarpe v. E&S Landscaping Serv., Inc., 616 F.3d 1217, 1224 (11th

Cir. 2010). But considering statements by legislators and agencies is appropri-

ate when we evaluate the threat of an enforcement action. After all, laws can

chill a person’s speech either because he fears actually losing in court or be-

cause “he may simply be concerned about the expense of becoming entangled

in the legal system.” Counterman v. Colorado, 600 U.S. 66, 75 (2023). Even if

legislative history does not shed light on the meaning of a statute’s text and

what speech it actually prohibits, legislative history may indicate who the en-

acting coalition would like to see prosecuted under the law. So legislative

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 18 of 127

18 Opinion of the Court 23-12160

Hamburger Mary’s briefing before this Court also provides

details that would strengthen our standing conclusion if Ham-

burger Mary presented record evidence of them in the district

court. The restaurant explains that before the Act’s passage, its

longstanding policy was to label some drag performances “18+”

but to allow minors to attend those shows with adult supervision.

Hamburger Mary’s relied on an “honor system” to enforce this pol-

icy.

But after the Act’s passage, the restaurant barred children

from all its shows—including those not previously labeled “18+”—

regardless of adult supervision. It hired private security guards to

conduct ID checks and enforce this policy. If shown by record ev-

idence, these facts—suggesting the Act led Hamburger Mary’s to

ban minors entirely from its adult-oriented performances and pay

guards to enforce the ban—would leave little reason even to ques-

tion the restaurant’s standing. But we don’t consider these asser-

tions because the record does not contain evidence of them.

Still, even relying on only Hamburger Mary’s verified com-

plaint, we are satisfied that the restaurant has shown injury in fact

“with the manner and degree of evidence required” at this early,

preliminary-injunction stage of litigation. Bischoff v. Osceola County,

222 F.3d 874, 878 (11th Cir. 2000) (quoting Lujan, 504 U.S. at 561).

The restaurant has alleged that it hosts drag shows it considers

history that suggests a speaker’s risk of prosecution may support his standing

to challenge a statute even if that history would not guide our interpretation

of the law.

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 19 of 127

23-12160 Opinion of the Court 19

child-friendly but that FDBPR and proponents of the Act may view

very differently. Given the Act’s severe penalties and vague scope,

Hamburger Mary’s self-censored to avoid the threat of litigation.

This threat was credible, Hamburger Mary’s actions were objec-

tively reasonable, and its injury in fact from self-censorship was

real.

Griffin resists this conclusion. She compares Hamburger

Mary’s situation with those of the plaintiffs in Driehaus, whom the

Supreme Court found enjoyed standing, and the would-be interve-

nors in Younger v. Harris, 401 U.S. 37 (1971), whom the Supreme

Court concluded lacked standing. As Griffin sees things, Ham-

burger Mary’s situation is more like that of the would-be interve-

nors in Younger than like that of the plaintiffs in Driehaus. We disa-

gree.

In Driehaus, the Supreme Court held that a plaintiff had

standing for a pre-enforcement challenge to an Ohio statute that

regulated statements about election candidates because (1) the

plaintiff had been the subject of past proceedings before the enforc-

ing agency and (2) the plaintiff “alleged an intent to engage in the

same speech” that, when made by a different party, had triggered

an enforcement action. Driehaus, 573 U.S. at 166–67.

Like the Driehaus plaintiff, Hamburger Mary’s claim of

standing rests in part on FDBPR’s prior enforcement actions

against similar speakers. Id. But Griffin argues that this history is

irrelevant because FDBPR’s prior enforcement actions were

against different parties and involved different statutes and

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 20 of 127

20 Opinion of the Court 23-12160

different performances than the ones at issue here. In Griffin’s

view, these differences put Hamburger Mary’s in the same situa-

tion as the would-be plaintiffs in Younger.

We don’t see things that way. The would-be intervenors in

Younger sought to intervene in the prosecution of a different indi-

vidual under an anti-leafletting statute. 401 U.S. at 41. The Court

found they lacked standing because they claimed only that they

“fe[lt] inhibited” by the statute, not that they “have ever been

threatened with prosecution, that a prosecution is likely, or even

that a prosecution is remotely possible.” Id. at 42.

In contrast to the Younger would-be intervenors, Hamburger

Mary’s unambiguously points to the threat of prosecution as the

reason for its self-censorship. It doesn’t allege a generalized sense

of feeling “inhibited” like the Younger would-be intervenors. The

restaurant says it “cannot take the chance that [its] business or liq-

uor licenses would be suspended,” let alone risk the Act’s “criminal

penalties.”

True, Hamburger Mary’s, unlike the Driehaus plaintiff, does

not allege its intent to engage in the “same speech” as a defendant

in another FDBPR action. But nothing in Driehaus comes close to

suggesting that pre-enforcement standing requires an intent to en-

gage in the exact speech that has already provoked one prosecu-

tion. Driehaus, 573 U.S. at 164–67. Indeed, the Court said only that

prior enforcement against the same conduct is “good evidence”—

not necessary evidence—of a credible enforcement threat. Id. at

164.

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 21 of 127

23-12160 Opinion of the Court 21

Not only that, but Griffin’s argument that FDBPR took its

prior enforcement actions under different statutes does not neces-

sarily weigh in her favor. To start, Florida passed the Act presum-

ably to solve a problem that the other statutes didn’t already ad-

dress. So whatever the scope of the Act’s proscriptions, they likely

extend beyond the obscenity statutes that FDBPR already previ-

ously enforced against drag shows. See, e.g., Fla. Stat. §§ 847.011

(“Prohibition of certain acts in connection with obscene, lewd, etc.,

materials”), 847.0133 (“Protection of minors; prohibition of certain

acts in connection with obscenity”). Otherwise, the Act would

have “no job to do.” Doe v. Chao, 540 U.S. 614, 623 (2004). For that

reason, FDBPR’s enforcement of other obscenity statutes against

drag performances suggests that the Act only increases the threat

of enforcement.

Plus, FDBPR’s enforcement history casts a shadow over

Hamburger Mary’s pleadings here. Hamburger Mary’s pleadings

or evidence about its past performances or admissions policy could

become fodder for an FDBPR enforcement action—even if Ham-

burger Mary’s succeeded in obtaining an injunction against en-

forcement of the Act. 3 But as we’ve explained, a plaintiff seeking

to challenge a law’s constitutionality need not “confess that he will

in fact violate that law.” Driehaus, 573 U.S. at 163. For similar

3 Indeed, amicus American First Legal Foundation urges us to hold that if we

were to vacate the preliminary injunction, Hamburger Mary’s could be retro-

actively held liable for violations of the Act even while the injunction was in

effect. Because our holding makes that issue a hypothetical one, we do not

consider it here.

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 22 of 127

22 Opinion of the Court 23-12160

reasons, we won’t ignore a plaintiff’s alleged self-censorship injury

when doing so would effectively require a plaintiff to disclose facts

that might provoke a prosecution under other, related statutes.

At bottom, we conclude that Hamburger Mary’s has suffi-

ciently shown injury from its reasonable self-censorship in the face

of a vague statute and broad enforcement history.

ii. Hamburger Mary’s injuries are traceable to the

Secretary and can be redressed by relief against

her.

Secretary Griffin presents no reason that the traceability and

redressability prongs of our standing analysis should come out dif-

ferently than the injury-in-fact prong. She contends, only briefly,

that for “the same reasons” the restaurant has suffered no injury,

its claimed harms are neither traceable to Griffin nor redressable

by an injunction against her. But as we have explained, Hamburger

Mary’s has shown it has experienced an injury in fact. And for

those same reasons, that injury is traceable to Griffin and redressa-

ble by an injunction against her.

Amicus America First Legal Foundation (“America First”)

makes a more detailed argument against Hamburger Mary’s bid

for standing. We’ve already addressed many of America First’s ar-

guments above and don’t rehash them here.

America First does present one argument, though, that Grif-

fin didn’t make (perhaps tellingly so). In the interest of complete-

ness, we address it now.

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 23 of 127

23-12160 Opinion of the Court 23

America First notes that we must analyze Hamburger

Mary’s standing in relation to its suit against Secretary Griffin, the

only current defendant. So Hamburger Mary’s must show that its

asserted injury is traceable to Griffin’s conduct, not just the Act in

the abstract.

But we have made clear that when a plaintiff’s asserted in-

jury flows from steps it takes to comply with a law, that injury is

generally traceable to government officials with the authority to

enforce that law. To be sure, we have previously denied standing

on traceability grounds when plaintiffs challenge statutes by suing

government officials who aren’t responsible for enforcement. See,

e.g., Support Working Animals, Inc. v. Governor of Fla., 8 F.4th 1198,

1203 (11th Cir. 2021) (denying standing to sue state Attorney Gen-

eral because she “neither has the authority to enforce” challenged

provision “nor has done anything else to cause the plaintiffs’

harm”); Lewis v. Governor of Ala., 944 F.3d 1287, 1299 (11th Cir.

2019) (en banc) (denying standing to sue state Attorney General in

challenge to statute that “provides for no enforcement mechanism

whatsoever, and . . . certainly envisions no role for the Attorney

General”).

But here, the Act’s text unambiguously reveals that the Sec-

retary is the proper defendant for this suit because portions of the

Act’s enforcement proceed under her authority. Florida law gives

the Division of Hotels and Restaurants and the Division of Alco-

holic Beverages and Tobacco authority to enforce the Act’s provi-

sions against licensed businesses. See Fla. Stat. §§ 509.261(10)(a),

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 24 of 127

24 Opinion of the Court 23-12160

561.29(1)(l). Each division is part of the FDBPR. Id. § 20.165(2).

And each division’s director is appointed by the Secretary of

FDBPR—Griffin. Id. § 20.165(3). The directors are “responsible”

to Secretary Griffin. Id.

And when FDBPR filed administrative complaints against

drag venues in the past, each bore a director’s name. Hamburger

Mary’s credible threat of prosecution emanates from FDBPR,

which Griffin leads and others “under her control” carry out. Cf.

Support Working Animals, 8 F.4th at 1204. In sum, the injury here is

traceable to Griffin and we can redress it with injunctive relief

against her.

B. Hamburger Mary’s suit is not moot.

Before reaching the merits, we address one more justiciabil-

ity concern: mootness. “Because a case or controversy must exist

throughout all stages of litigation, we must ensure—up until the

moment our mandate issues—that intervening events have not

mooted the appeal . . . .” Norwegian Cruise Line Holdings Ltd v. State

Surgeon Gen., Fla. Dep’t of Health, 55 F.4th 1312, 1315 (11th Cir. 2022)

(cleaned up) (quoting Vital Pharms., Inc. v. Alfieri, 23 F.4th 1282, 1288

(11th Cir. 2022)). “A case becomes moot—and therefore no longer

a ‘Case’ or ‘Controversy’ for purposes of Article III—when the is-

sues presented are no longer live or the parties lack a legally cog-

nizable interest in the outcome.” Id. (cleaned up) (quoting Already,

LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)). Viewed from another an-

gle, “a case is moot when it no longer presents a live controversy

with respect to which the court can give meaningful relief.”

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 25 of 127

23-12160 Opinion of the Court 25

Soliman v. United States ex rel. INS, 296 F.3d 1237, 1242 (11th Cir.

2002) (per curiam) (quoting Fla. Ass’n of Rehab. Facilities, Inc. v. Fla.

Dep’t of Health & Rehab. Servs., 225 F.3d 1208, 1216–17 (11th Cir.

2000)).

The potential for mootness here stems from Hamburger

Mary’s closure and planned reopening during the pendency of this

suit. In May 2024, Hamburger Mary’s announced that it planned

to close its Orlando location but hoped to reopen at a nearby loca-

tion soon. Hamburger Mary’s identified a new location in Kis-

simmee and sent the building’s owner a letter of intent to lease the

space. At the time, Hamburger Mary’s hoped to reopen in the new

location in mid-July. The restaurant publicized the planned Kis-

simmee move on social media while it continued to produce sev-

eral drag events at other venues. Repairs at the Kissimmee location

are taking longer than expected, but as of December 2024, the lo-

cation’s owner confirmed that repair work was ongoing.

Secretary Griffin argues that Hamburger Mary’s temporary

closure and relocation moot its case. We disagree. Two key Su-

preme Court cases explain why.

In City of Erie v. Pap’s A.M., the Court considered a strip

club’s challenge to a town’s public-indecency ordinance. 529 U.S.

277 (2000). The Pennsylvania Supreme Court partially enjoined

enforcement of the ordinance, and the city appealed. Id. at 286–87.

After the Supreme Court granted certiorari, the club submitted an

affidavit stating that it had closed, and it moved to dismiss the case

as moot. Id. at 287.

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 26 of 127

26 Opinion of the Court 23-12160

The Court denied the motion. It reasoned that while the

plaintiff had closed the club, as a business entity it was “still incor-

porated . . . and it could again decide to operate a nude dancing

establishment.” Id. at 287. Plus, the Court found that the fact that

the plaintiff—who brought the case initially and had won below—

was the one seeking mootness represented a potential attempt to

“manipulate the Court’s jurisdiction to insulate a favorable decision

from review.” Id. at 288. Denying mootness prevented such game-

playing.

The Court clarified Pap’s A.M. the next year. In City News &

Novelty, Inc. v. City of Waukesha, the plaintiff, an “adult-oriented

shop,” sued the city after it declined to renew the shop’s “adult busi-

ness license[].” 531 U.S. 278, 281–82 (2001). State courts upheld the

denial, and the shop petitioned the Court for certiorari. Id. at 282.

While the petition was pending, the store informed the city that it

would “withdraw its renewal application and close its business” be-

cause the city had granted a license to a competitor business that

would have made it hard for the store to succeed. Id. at 282–83.

After the Court granted certiorari, the city argued the case

had become moot. The Court agreed. Although it noted that the

adult store was like the Pap’s A.M. plaintiff in that it had not firmly

foreclosed the possibility of reopening, the Court recognized that

mooting the case would not have left intact an adverse judgment

against the city, which won below. Id. at 283–84. So City News clar-

ified that mere “speculation” about a closed business’s reopening

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 27 of 127

23-12160 Opinion of the Court 27

would not overcome mootness in the absence of possible at-

tempted jurisdictional manipulation as in Pap’s A.M. Id. at 285.

The key word in City News, Pap’s A.M., and their progeny is

“speculation.” “Although a ‘party need not show with certainty

that the situation will recur,’ a ‘speculative possibility is not a basis

for retaining jurisdiction over a moot case.’” In re Operation of Mo.

River Sys. Litig., 421 F.3d 618, 631–32 (8th Cir. 2005) (cleaned up)

(quoting McCarthy v. Ozark Sch. Dist., 359 F.3d 1029, 1036 (8th Cir.

2004)). When a business’s closure means that a court order “will

neither presently affect the parties’ rights nor have a more-than-

speculative chance of affecting them in the future,” the case is

moot. Munsell v. Dep’t of Agric., 509 F.3d 572, 583 (D.C. Cir. 2007)

(quoting 21st Century Telesis Joint Venture v. FCC, 318 F.3d 192, 198

(D.C. Cir. 2003)) (internal quotation marks omitted in original).

In cases involving businesses that pause operations but may

resume them, courts take a common-sense approach to evaluating

mootness. The business’s own actions and the concreteness of its

reopening plans carry significant weight. Future injuries may be

speculative when a plaintiff expresses a “desire” to go back into

business but shows “no clear plans” to do so. Id. at 582–83. But a

company that files for bankruptcy yet shows its ability and intent

to resume operations after a corporate reorganization retains an

interest in an ongoing suit (even when the reopening depends on

the suit’s outcome). Id. at 583 (discussing Supreme Beef Processors,

Inc. v. USDA, 275 F.3d 432, 436–37 (5th Cir. 2001)).

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 28 of 127

28 Opinion of the Court 23-12160

So while future events “up until the moment our mandate

issues” could moot this case like any other, Vital Pharms., Inc., 23

F.4th at 1288, at this time, Hamburger Mary’s continuing interest

prevents mootness. The restaurant publicly expressed its plans to

reopen even before it closed its Orlando location. In fact, Ham-

burger Mary’s described itself as going through not a closure but a

“move.” Plus, the proprietors engaged in “many conversations”

with the owner of Hamburger Mary’s intended new location and

ultimately sent a letter of intent to lease the property. Not only

that, but repairs to the restaurant are ongoing. As with the bank-

rupt plaintiff that convincingly showed its ability and desire to re-

sume operations, Hamburger Mary’s reopening is not mere specu-

lation.

Hamburger Mary’s also has a continuing interest in this suit

because it has remained involved with drag performances while its

restaurant is closed. The company has continued

“produc[ing] . . . drag events in partnership with other venues.”

Secretary Griffin insists this fact cannot give rise to liability

because the Act bars “admit[ting] a child” to adult live perfor-

mances—not “producing” them—and an “establishment’s proprie-

tor is the entity admitting guests to its show.” But it is hardly evi-

dent that a producer’s responsibilities do not include controlling

admission within the scope of the Act. Cf. What Does a Producer

Do?, GET INTO THEATRE ( June 4, 2024), https://perma.cc/H3JJ-

AXLE (listing producer’s responsibilities such as “[s]etting ticket

prices” and “[e]nsuring legal compliance”). If anything, the

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 29 of 127

23-12160 Opinion of the Court 29

Secretary’s argument only highlights the Act’s use of yet another

vague term that obscures its scope.

And even if the Secretary’s argument in this respect had legs,

that wouldn’t change the fact that Hamburger Mary’s is actively

trying to open a new location where it intends to continue its per-

formances if they don’t violate the law.

Proving mootness is a “heavy burden” that falls on the mo-

vant—in this case, the Secretary. Norwegian Cruise Line, 55 F.4th at

1314. The Secretary has not carried that burden here.

C. Hamburger Mary’s is likely to succeed on the merits of

its claim.

Now that we’ve resolved any justiciability concerns, we turn

to the merits of this case. Griffin appeals the district court’s deci-

sion to preliminarily enjoin enforcement of the Act.

A preliminary injunction generally requires a movant to es-

tablish four things: (1) it is substantially likely to succeed on the

merits; (2) it will suffer an irreparable injury unless the court grants

the injunction; (3) “the harm from the threatened injury outweighs

the harm the injunction would cause the opposing party; and (4)

the injunction would not be adverse to the public interest.” Gon-

zalez, 978 F.3d at 1270–71 (citations omitted). The third and fourth

factors merge when a party seeks an injunction against the govern-

ment. Id.

Here, the district court found that all the factors supported

granting a preliminary injunction. On appeal, Griffin challenges

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 30 of 127

30 Opinion of the Court 23-12160

only Hamburger Mary’s likelihood of success on the merits. So we

accept the district court’s findings as to the other factors.

After careful review of the Act and with the benefit of oral

argument, we conclude that Hamburger Mary’s facial challenge is

likely to succeed. 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). The provisions’ vagueness threatens

a broad range of protected speech, even if the law has some per-

missible applications at its core. These provisions turn the Act into

an “I know it when I see it” law. But the Constitution requires

more clarity.

i. To succeed on its facial challenge to the Act,

Hamburger Mary’s must show its unconstitu-

tional applications substantially outweigh its

constitutional ones.

Before we analyze the Act, we first explain the applicable

standard for Hamburger Mary’s facial challenge to the Act. Be-

cause facial challenges have a broad impact, they are “hard to win.”

Moody v. NetChoice, LLC, 603 U.S. 707, 723 (2024).

But the stringent standard for facial challenges softens some-

what in First Amendment litigation, to secure “breathing room for

free expression.” Id. (quoting United States v. Hansen, 599 U.S. 762,

769 (2023)). In First Amendment facial challenges, we ask whether

the challenged law “prohibits a substantial amount of protected

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 31 of 127

23-12160 Opinion of the Court 31

speech relative to its plainly legitimate sweep.” Id. (quoting Han-

sen, 599 U.S. at 770). In other words, laws abridging First Amend-

ment rights must be sufficiently precise: “[p]recision of regulation

must be the touchstone in an area so closely touching our most

precious freedoms.” NAACP v. Button, 371 U.S. 415, 438 (1963); see

also Rodney A. Smolla, Smolla & Nimmer on Freedom of Speech § 6.1

(2024). “I know it when I see it” is not acceptable.

The reasons for demanding precision are so well known that

they have leapt from legal language into the layperson’s lexicon.

Speech regulations can produce a “chilling effect,” discouraging

people from speaking their mind even when their speech does not

actually fall within the four corners of a prohibition. Counterman v.

Colorado, 600 U.S. 66, 75 (2023).

Laws can chill speech in at least three ways. Id. A would-be

speaker may be unable to tell whether the law actually prohibits

her speech, so she may stay silent. Id. She may intend to speak in

ways that she knows to be legally permissible but fear that the ju-

dicial system will “err, and count speech . . . that is permissible as

instead not.” Id. (citing Philadelphia Newspapers, Inc. v. Hepps, 475

U.S. 767, 777 (1986)). Or she may be confident in winning a poten-

tial legal challenge but stay silent to avoid the time and expense of

litigation. Id.

The desire to avoid chilling protected speech animates sev-

eral related doctrines that can invalidate speech laws on their face.

Each flows from another way that the Constitution demands pre-

cision when the government regulates speech.

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 32 of 127

32 Opinion of the Court 23-12160

The first doctrine, overbreadth, permits “facial invalidation”

of a speech law whose “unconstitutional applications . . . [are] sub-

stantially disproportionate to the statute’s lawful sweep.” Hansen,

599 U.S. at 770 (2023).

The second doctrine, vagueness, demands that statutes give

“fair notice” to speakers about what speech will run afoul of the

law. FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012).

Put another way, a law is impermissibly vague “if it fails to provide

people of ordinary intelligence a reasonable opportunity to under-

stand what conduct it prohibits.” Hill v. Colorado, 530 U.S. 703, 732

(2000).

The void-for-vagueness rule is a principle of criminal law

generally. But it applies with “heightened” vigor to laws touching

on protected speech. See Brown v. Ent. Merchs. Ass’n, 564 U.S. 786,

793 (2011) (citing Winters v. New York, 333 U.S. 507, 517–19 (1948));

Smith v. Goguen, 415 U.S. 566, 573 (1974). Vague speech laws vio-

late the First Amendment because they lead speakers to “avoid the

risk . . . by restricting their conduct to that which is unquestionably

safe. [But f]ree speech may not be so inhibited.” Baggett v. Bullitt,

377 U.S. 360, 372 (1964).

Vagueness and overbreadth interplay in several ways. Most

relevant here, vague statutory language exacerbates overbreadth

concerns. Overbreadth challenges hinge on the range of a statute’s

permissible applications in comparison to its impermissible ones.

See Moody, 603 U.S. at 723–24, 726. A vague statute can lead those

whose protected speech the statute may not in fact prohibit to

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 33 of 127

23-12160 Opinion of the Court 33

silence themselves anyway, effectively increasing the statute’s

range of impermissible applications. See, e.g., Reno v. ACLU, 521

U.S. 844, 874 (1997) (“Given the vague contours of the coverage of

the statute, it unquestionably silences some speakers whose mes-

sages would be entitled to constitutional protection.”). So when

we assess a statute’s sweep in an overbreadth challenge, we “eval-

uate the ambiguous as well as the unambiguous scope of the enact-

ment. To this extent, the vagueness of a law affects overbreadth

analysis.” Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455

U.S. 489, 494 n.6 (1982); see also Am. Booksellers v. Webb, 919 F.2d

1493, 1505–06 (11th Cir. 1990) (same).

A third doctrine that can facially invalidate a speech law, dis-

tinct from a failure to give fair notice of prohibited conduct, is the

failure to provide “explicit standards for those who apply” speech

laws. Grayned, 408 U.S. at 108. The problem with standardless stat-

utes, which we sometimes evaluate under the rubric of vagueness,

is that they “authorize[] or even encourage[] arbitrary and discrim-

inatory enforcement.” See Hill, 530 U.S. at 732 (2000) (citing Chi-

cago v. Morales, 527 U.S. 41, 56–57 (1999)). See also Fox, 567 U.S. at

253 (“[P]recision and guidance are necessary so that those enforc-

ing the law do not act in an arbitrary or discriminatory way.”).

Laws without discernible standards threaten enforcement

that is “impermissibly based on content or viewpoint.” Barrett v.

Walker Cnty. Sch. Dist., 872 F.3d 1209, 1221 (11th Cir. 2017) (citing

City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 757–59

(1988)). After all, if the courts can’t identify where the statute

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 34 of 127

34 Opinion of the Court 23-12160

draws the line between legal and illegal speech, those who enforce

the law can choose to impose its purported limitations how they

please. And when discriminatory enforcement does occur, it may

be hard to prove and to prevent: “the difficulties of proof and the

case-by-case nature of ‘as applied’ challenges” can make speech reg-

ulators’ actions “effectively unreviewable.” Lakewood, 486 U.S. at

758–59.

Yet the fear of improper governmental motives in regulating

speech—such as the desire to suppress politically disfavored speech

or speakers—lies at the heart of the First Amendment. See generally

Elena Kagan, Private Speech, Public Purpose: The Role of Governmental

Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413 (1996). So

to protect against discriminatory enforcement, speech laws with

insufficient standards to cabin enforcement discretion are liable to

facial challenge.

Now that we’ve set forth the modes of First Amendment fa-

cial challenges, we turn to the Act itself. We lay out the distinction

between protected and unprotected speech under the First Amend-

ment and show how the Act restricts the protected speech. We

then explain why Hamburger Mary’s is likely to succeed on its fa-

cial challenge to the Act.

ii. The Act reaches First-Amendment-protected

speech, not just unprotected obscenity.

The First Amendment, as incorporated against the states,

bars the government from “abridging the freedom of speech.” U.S.

CONST. amend. I; Gitlow v. New York, 268 U.S. 652, 655 (1925)). Still,

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 35 of 127

23-12160 Opinion of the Court 35

some speech is “unprotected” and does not have, “in and of itself,

a claim upon the First Amendment.” R.A.V. v. City of St. Paul, 505

U.S. 377, 386 (1992). These “well-defined and narrowly limited

classes of speech” have historically fallen outside the First Amend-

ment’s protection because they are “of such slight social value as a

step to truth that any benefit that may be derived from them is

clearly outweighed by the social interest in order and morality.”

United States v. Stevens, 559 U.S. 460, 468–69 (2010) (quoting R.A.V.,

505 U.S. at 383 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568,

571–72 (1942))).

While so-called unprotected speech is not “entirely invisible

to the Constitution,” it is substantially more amenable to regula-

tion than its protected counterpart. R.A.V., 505 U.S. at 383. Un-

protected speech includes defamation, fighting words, true threats,

and, most important for our purposes, obscenity. See Counterman,

600 U.S. at 74–76.

1. Obscene representations are unprotected

only when they meet the requirements of

the Miller test and are “specifically de-

fined.”

In the words of one authority, “[o]bscenity remains one of

the more colorful, controversial, and confounding areas of First

Amendment jurisprudence.” David L. Hudson, Jr., The First

Amendment: Freedom of Speech § 4:2 (2012). As we’ve men-

tioned, the “confounding” difficulty of defining obscenity led Jus-

tice Stewart to give up on the effort: “I shall not today attempt

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 36 of 127

36 Opinion of the Court 23-12160

further to define the kinds of material I understand to be embraced

within that shorthand description; and perhaps I could never suc-

ceed in intelligibly doing so. But I know it when I see it . . . .”4

Jacobellis, 378 U.S. at 197 (Stewart, J., concurring).

The difficulty of defining obscenity—and the problems

vague speech proscriptions create—led to the Supreme Court’s ap-

proach in Miller v. California, 413 U.S. 15 (1973). The Miller test de-

fines speech as obscene if it satisfies three requirements:

(a) whether the average person, applying contempo-

rary 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, politi-

cal, or scientific value.

Miller, 413 U.S. at 24 (internal quotation marks and citations omit-

ted). See also United States v. Bagnell, 679 F.2d 826, 835 (11th Cir.

1982) (quoting the Miller test). All three of Miller’s prongs must be

satisfied for content to qualify as “obscene.” In this way, the Miller

test creates both substantive and procedural limits on state-im-

posed obscenity regulations.

4 More precisely, Justice Stewart was discussing the attempt to define the cat-

egory of “hard-core pornography” that could constitutionally be regulated un-

der the rubric of obscenity. Jacobellis, 378 U.S. at 197 (Stewart, J., concurring).

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 37 of 127

23-12160 Opinion of the Court 37

Miller substantively limits obscenity regulations by defining,

in broad strokes, what content they may deem obscene. Obscene

speech must appeal to the “prurient interest,” depict or describe

“sexual conduct” in a “patently offensive way,” and must lack “se-

rious literary, artistic, political, or scientific value.” Miller, 413 U.S.

at 24.

The Court has since clarified the permissible reach of ob-

scenity regulation. Obscene content is always sexual, see Stevens,

559 U.S. at 478–80; Brown, 564 U.S. at 792—but not all sexual con-

tent is obscene. The line between obscene and non-obscene sexual

content can be fuzzy, but the Court has given some guidance.

Material that provokes only “healthy sexual desires,” as op-

posed to “shameful or morbid” ones, is not obscene. Brockett v.

Spokane Arcades, Inc., 472 U.S. 491, 498–99 (1985). And whether

sexual content is “patently offensive” cannot hinge on gender-

based views of what representations are appropriate. See Manual

Enters. v. Day, 370 U.S. 478, 490 (1962) (“[T]hese portrayals of the

male nude [in a magazine aimed at gay men] cannot fairly be re-

garded as more objectionable than many portrayals of the female

nude that society tolerates.”).

Nor is the Constitution a prude: material may be crude, vul-

gar, or offensive without rising to the level of obscene. For exam-

ple, the Court has distinguished “obscene” materials from those

that are just “indecent.” FCC v. Pacifica Found., 438 U.S. 726, 740

(1978). “‘[I]ndecent’ merely refers to nonconformance with ac-

cepted standards of morality.” Id. So indecency includes a broader

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 38 of 127

38 Opinion of the Court 23-12160

range of materials, including some sexual expression that falls short

of obscenity. Reno, 521 U.S. at 874 (citing Sable Commc'ns of Cal.,

Inc. v. FCC, 492 U.S. 115, 122 (1989)). As for obscenity, only depic-

tions of “‘hard core’ sexual conduct” can satisfy that term. Miller,

413 U.S. at 27.

This last point means that the prongs of the Miller test limit

which types of “hard core” sexual materials are obscene (and there-

fore unprotected), and they don’t permit restrictions of other

speech that might be considered simply “patently offensive” or

lacking “value.” In other words, Miller’s “serious value” exceptions

clause is not a formula whose invocation strips First Amendment

protection from nonsexual speech. In the Court’s words, “Miller

did not determine that serious value could be used as a general pre-

condition to protecting other types of speech in the first place.” Ste-

vens, 559 U.S. at 479. Rather, as we’ve noted, content must satisfy

all three of Miller’s prongs to amount to obscenity.

Besides its substantive limits on obscenity regulation, Miller

creates a procedural requirement. Speech that meets Miller’s sub-

stantive requirements for obscenity remains protected unless it is

“specifically defined by the applicable state law [regulating obscen-

ity], as written or authoritatively construed.” Miller, 413 U.S. at 24.

Miller offered examples of what would qualify as sufficiently spe-

cific definitions: “representations or descriptions of ultimate sex

acts, normal or perverted, actual or simulated” or “representation

or descriptions of masturbation, excretory functions, and lewd ex-

hibition of the genitals.” Id. at 25.

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 39 of 127

23-12160 Opinion of the Court 39

The reasons for this specificity requirement are the same as

those motivating much of contemporary First Amendment doc-

trine: providing “fair notice” to speakers as to the possibility of

prosecution, id. at 27, preventing arbitrary enforcement, and not

chilling protected speech. This “specifically defined” requirement

is not throwaway language but instead a “critical” part of the Miller

test. See Reno, 521 U.S. at 873 (“The second prong of the Miller test

. . . contains a critical requirement . . . that the proscribed material

be ‘specifically defined by the applicable state law.’” (quoting Miller,

413 U.S. at 24)).

And though it resembles the more general prohibition of

vague legislation, the specificity requirement stands on top of that

prohibition. True, the specific-definition requirement furthers the

same values as void-for-vagueness doctrine. But because of the

drastic legal and political implications of deeming content “ob-

scene” and thus beyond First Amendment protection, the need for

specific and definite legislation in this context is greater than it is

generally or even elsewhere in the First Amendment realm.

2. Obscenity restrictions for minors still

are subject to the Miller test.

One other thread of obscenity doctrine we must consider

here is its application to minors. The history of speech standards

that vary by age dates back at least to Ginsberg v. New York, 390 U.S.

629 (1968).

In Ginsberg, the Court upheld a New York statute that barred

the sale to minors under seventeen of any materials that depicted

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 40 of 127

40 Opinion of the Court 23-12160

“nudity” and were “harmful to minors”—that is, “appealing to the

prurient, shameful, or morbid interest of minors,” “patently offen-

sive” to adult standards regarding what is appropriate “for minors,”

and completely without redeeming value “for minors.” Ginsberg,

390 U.S. at 631–33. 5 The Court held that minors’ access to speech

bordering on obscene need not be as extensive as adults’:

“[m]aterial which is protected for distribution to adults is not nec-

essarily constitutionally protected from restriction upon its dissem-

ination to children.” Id. at 636 (quoting Bookcase, Inc. v. Broderick,

218 N.E.2d 668, 671 (N.Y. 1966)).

“In other words, the concept of obscenity or of unprotected

matter may vary according to the group to whom the questionable

material is directed or from whom it is quarantined.” Id. (quoting

Bookcase, Inc., 218 N.E.2d at 671). Noting that the statute still al-

lowed “parents who so desire” to provide the prohibited materials

to their children, the Court reasoned that the statute was rationally

related to the state’s interest in helping parents control their chil-

dren’s exposure to sexual material. Id. The Court also noted the

5 The New York statute modified a pre-Miller obscenity test that deemed con-

tent obscene only when it was “completely without redeeming value,” rather

than the less stringent “without serious value” prong in Miller. See Ginsberg,

390 U.S. at 635; Roth v. United States, 354 U.S. 476, 485 (1957). By contrast,

here, the Act bases its age-variable test on Miller. Shortly after Miller, the Court

noted that it had yet to decide “what effect Miller will have on the Ginsberg

formulation.” Erzoznik v. City of Jacksonville, 422 U.S. 205, 213 n.10 (1975). It

still has not done so. But we don’t think updating the Ginsberg test of obscenity

for minors to reflect the new standard for adult obscenity from Miller affects

Ginsberg’s reasoning or conclusion.

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 41 of 127

23-12160 Opinion of the Court 41

statute’s role in furthering the state’s “independent interest in the

well-being of its youth.” Id. at 640.

Today, many statutes use what we will call a “Miller-for-mi-

nors” test, also called a “harmful for minors” standard or a “variable

obscenity” standard. The Miller-for-minors test takes the Miller

prongs but adjusts the second and third standards (and sometimes

the first) “for minors.” See, e.g., Fla. Stat. § 847.001(7); Ala. Code

§ 13A-12-200.1(11); Ga. Code Ann. § 20-2-324.6(a). So the “patently

offensive” requirement becomes “patently offensive for minors,”

and the “serious value” exception becomes “serious value for mi-

nors.”

But the Miller-for-minors test does not do away with Miller’s

procedural requirement that obscene content must be specifically

identified to remove it from First-Amendment protection. After

all, “[i]t is . . . essential that legislation aimed at protecting children

from allegedly harmful expression—no less than legislation en-

acted with respect to adults—be clearly drawn and that the stand-

ards adopted be reasonably precise.” Interstate Circuit, Inc. v. City of

Dallas, 390 U.S. 676, 689 (1968) (quoting People v. Kahan, 206 N.E.2d

333, 335 (1965) (Fuld, J., concurring)). And content that is obscene

as to minors may differ from its adult equivalent only in quality,

not in kind: as with adults, only “sexual material” can be obscene

for minors. Brown, 564 U.S. at 793.

Finally, a regulation of speech “harmful to minors” may not

overly “suppress[] . . . speech that adults have a constitutional right

to receive and to address to one another.” Reno, 521 U.S. at 874.

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 42 of 127

42 Opinion of the Court 23-12160

Even when a statute only indirectly limits protected adult speech—

such as by making it more difficult for adults to access, Webb, 919

F.2d at 1506–08, or by forcing speakers to “err on the side of cau-

tion” because of statutory ambiguities, id. at 1505–06—the law still

must do so narrowly and in proportion to the government’s inter-

est in shielding children from speech that is unprotected as to mi-

nors. Id. at 1501.

3. The Act restricts speech that is protected

as to minors.

With these principles in mind, our first task is to assess the

Act’s burden on protected speech, if any.

Secretary Griffin argues that the Act dutifully observes Mil-

ler’s requirements 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] nu-

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. 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.” Id. That is, prohibited perfor-

mances must lack serious “value for the age of the child present”

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 43 of 127

23-12160 Opinion of the Court 43

and be “patently offensive . . . with respect to what is suitable ma-

terial or conduct for the age of the child present.” Id.

But as it turns out, the Act’s specific definitions aren’t all that

specific. Undoubtedly, the statute meticulously explains the first

four terms, whose definitions cross-reference a preexisting statute.

Anyone curious about the “specific sexual activities” whose depic-

tion may be obscene can peruse Florida Statutes, Section

847.001(23). Here, it’s enough to say that Florida law amply details

which body parts, doing what, constitute “nudity,” “sexual con-

duct,” and so on. Fla. Stat. § 847.001(10), (11), (19), (20), (23).

We can’t say the same for the meaning of “lewd conduct”

under the statute, though. Indeed, the Secretary’s brief is reveal-

ingly honest when it omits “lewd conduct” when listing the terms

the Act “specifically define[s].”

Still, Griffin argues that “lewd conduct” is sufficiently defi-

nite to prevent the statute from being void for vagueness. She

notes that several state and federal statutes employ the term

“lewd.”

And she points to the Florida Supreme Court’s definition of

“lewd” as meaning the same thing as “lascivious . . . that is, an un-

lawful indulgence in lust, eager for sexual indulgence.” Chesebrough

v. State, 255 So. 2d 675, 677 (Fla. 1971). Chesebrough upheld against

a vagueness challenge a statute barring “lewd or lascivious acts” in

the presence of a child under fourteen years old. Id. at 678.

Griffin also highlights a Florida model jury instruction, de-

fining “lewd” and “lascivious” as “a wicked, lustful, unchaste,

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 44 of 127

44 Opinion of the Court 23-12160

licentious, or sensual intent on the part of the person doing the

act.” Fla. Sup. Ct. Comm. on Standard Jury Instructions in Crimi-

nal Cases, Florida Standard Jury Instructions in Criminal Cases 322

(2024), https://perma.cc/NJX6-FRFW.

But the Secretary’s arguments ignore two points. First, by

focusing on whether the term “lewd conduct” is unconstitutionally

vague as a general matter, Griffin skirts the more pressing concern:

whether a restriction of depictions of “lewd conduct” meets Miller’s

more stringent test for defining obscene speech. Unlike the lewd-

ness statute in Chesebrough, which barred “lewd or lascivious act[s]

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. Mil-

ler, 413 U.S. at 24. One of the Miller Court’s example definitions—

“patently offensive representations or descriptions of . . . lewd ex-

hibition of the genitals”—proves the point. Id. at 25. “Lewd exhi-

bition 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 provide

a more precise description. Instead, Miller shows that states can’t

define obscenity by taking a broad descriptor like “lewd” and ap-

plying it to the entire universe of “conduct.” Doing so would evis-

cerate Miller’s “specific definition” requirement and amount to

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 45 of 127

23-12160 Opinion of the Court 45

little more than an “I know it when I see it” test for obscenity,

which Miller rejects.

Second, the Secretary doesn’t read the “lewd conduct” pro-

vision in its statutory context. Rather, she relies on judicial inter-

pretations of “lewdness” plucked from statutes that don’t specifi-

cally describe any prohibited depictions. But as we explain, doing

so is misleading here.

Griffin’s chief case in point is Miller’s companion case, United

States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123, 130 n.7

(1973). The 12 200-Ft. Reels Court dealt with a challenge to a pre-

Miller statute that barred the importation of “any obscene book . . .

or other representation, figure, or image.” Id. at 124 (quoting 19

U.S.C. § 1305(a)). After announcing Miller’s new test for obscenity,

the Court remanded 12 200-Ft. Reels for a lower court to evaluate

whether the materials at issue were obscene under the newly an-

nounced Miller test. Id. at 130.

In a footnote, the Court anticipated a potential vagueness

challenge to the statute restricting “obscene” material and other

similar laws. Id. at 130 n.7. It said, “[i]f and when such a serious

doubt is raised as to the vagueness of the words ‘obscene,’ ‘lewd,’

‘lascivious,’ ‘filthy,’ ‘indecent,’ or ‘immoral’ as used to describe reg-

ulated material,” the Court was “prepared to construe such terms

as limiting regulated material to patently offensive representations

or descriptions of that specific ‘hard core’ sexual conduct given as

examples in Miller.” Id. (cleaned up).

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 46 of 127

46 Opinion of the Court 23-12160

The next year the Court heard exactly that challenge and re-

solved it as promised. In Hamling v. United States, the Court inter-

preted a different pre-Miller statute that regulated “obscene, lewd,

lascivious, indecent, filthy or vile” content as covering only the

“permissibly proscribed depictions described in Miller.” 418 U.S.

87, 110–16 (1974) (quoting 18 U.S.C. § 1461). So Miller required

specificity when regulating obscenity and gave examples of how to

satisfy that requirement. And 12 200-Ft. Reels and Hamling showed

that speech statutes with otherwise vague “lewdness” prohibitions

could be saved by reading the term to encompass only Miller’s spe-

cific prohibitions. Put simply, the Court saved “lewdness” statutes

by reading the term to be coextensive with Miller’s specific exam-

ples of obscenity.

But no such interpretation is available for “lewd conduct”

here. That’s because the Act’s extensively detailed prohibitions—

of nudity, sexual conduct, and so on—essentially exhaust the types

of “hard core” depictions that Miller described as potentially ob-

scene. Miller, 413 U.S. at 25. That means the Act’s bar on “de-

pict[ions of] . . . lewd conduct” must mean something different

than the Miller-prohibited depictions, or it would be “mere surplus-

age.” Aspen Am. Ins. Co. v. Landstar Ranger, Inc., 65 F.4th 1261, 1271

(11th Cir. 2023) (quoting United States v. Canals-Jimenez, 943 F.2d

1284, 1287 (11th Cir. 1991)). And so we assume it does mean some-

thing different.

But neither Miller and its progeny nor the Florida materials

Griffin presents even suggest a way to interpret “lewd conduct”

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 47 of 127

23-12160 Opinion of the Court 47

that is distinct from the other prohibited depictions but accords

with Miller’s specificity requirement. And while we “tolerate some

redundancy” in statutory terms, see United States v. Conage, 50 F.4th

81, 88 (11th Cir. 2022) (mem.), we will not run roughshod over Mil-

ler’s requirement that laws condemning speech as unprotected by

the First Amendment do so with precision.

The dissent laments our use of the surplusage canon to un-

derstand the scope of the “lewd conduct” provision. Instead, the

dissent urges us to certify a question about the Act’s interpretation

to the Florida Supreme Court.

The dissent’s suggestion must come as news to both parties.

Indeed, the State asked us to accept its proffered interpretation of

the Act (which, in suggesting we certify the Act’s interpretation,

the dissent seems to implicitly recognize suffers from constitu-

tional problems). And neither party requested or briefed the idea

of certifying questions to the Florida Supreme Court. Nor did we

ever ask about it during oral argument. Yet “normally . . . the cru-

cible of adversarial testing is crucial to sound judicial decisionmak-

ing. We rely on it to yield insights (or reveal pitfalls) we cannot

muster guided only by our own lights.” Sessions v. Dimaya, 584 U.S.

148, 190 (2018) (Gorsuch, J., concurring) (cleaned up). And in any

case, as we explain, the surplusage canon is helpful here; certifica-

tion would not be. That’s because nothing in the interpretive

toolkit would cut “lewd conduct” down to constitutional size.

First, the ground rules for certification. The Florida Su-

preme Court may rule on outcome-determinative state-law

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 48 of 127

48 Opinion of the Court 23-12160

questions we certify to it. Fla. R. App. P. 9.150. But “the decision

to certify . . . ‘rests in the sound discretion of the federal court.’”

Minn. Voters All. v. Mansky, 585 U.S. 1, 22 n.7 (2018) (quoting Ex-

pressions Hair Design v. Schneiderman, 581 U.S. 37, 58 (2017) (So-

tomayor, J., concurring in the judgment)). In Mansky, the Supreme

Court deemed certification unnecessary in a First Amendment

challenge to a state law where (1) the state’s “request for certifica-

tion comes very late” and (2) the state “has not offered sufficient

reason to believe that certification would obviate the need to ad-

dress the constitutional question.” Id. at 22 n.7.

The same is true here. As we’ve noted, the Secretary has

not even requested certification. That’s presumably because the

Secretary is confident that “lewd” has the same broad meaning it

did when the Florida Supreme Court interpreted the term in

Chesebrough, 255 So. 2d at 677. And as in Mansky, “[o]ur analysis

today reflects the State’s proffered interpretation; nothing in that

analysis would change if the State’s interpretation were also

adopted by the [Florida] Supreme Court.” Mansky, 585 U.S. at 22

n.7. Neither Florida nor the dissent proposes “a viable alternative

construction that the [Florida] Supreme Court might adopt in-

stead.” Id. And while we of course agree with the dissent that cer-

tification is permissible even when parties do not seek it, we know

too that certification has value only when a statute is “readily sus-

ceptible” to a “proffered narrowing construction.” Virginia v. Am.

Booksellers Ass’n, Inc., 484 U.S. 383, 397 (1988). That no such con-

struction has been “proffered” here is a good clue to the fact that

the statute is not “readily susceptible” to such a construction.

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 49 of 127

23-12160 Opinion of the Court 49

Federalism principles rightly counsel us to steer clear of friction

with states. But they do not instruct us to detour into state court

just to postpone a constitutional collision that, as we show, is una-

voidable. 6

The dissent suggests that “lewd conduct” is “merely a

catchall phrase, rather than a significant expansion of the statute’s

scope.” Dissenting Op. at 22. This seems to us precisely the prob-

lem: “lewd conduct” is indeed a “catchall phrase” that “catches”

much non-obscene speech. (Of course, if “lewd conduct” really

were pure surplusage—totally duplicative of the Act’s other

terms—an injunction of that part of the Act would have no effect:

no harm, no foul.)

Still, we understand the dissent’s point to be that “lewd con-

duct” has some meaning that is distinct from the Act’s other prohi-

bitions, but still is sufficiently limited to content that may be pro-

scribed as obscene. Or at least, that the Florida Supreme Court

could decide as much.

The dissent argues that we miss this point because rely on

the surplusage canon to the exclusion of other interpretive tools.

The noscitus a sociis canon instructs us that “a word is known by the

company it keeps.” United States v. Dawson, 64 F.4th 1227, 1237

(11th Cir. 2023) (quoting Yates v. United States, 574 U.S. 628, 537

6 And even if we certified interpretation of the “lewd conduct” provision, that

would not resolve the distinct constitutional concerns with the Act’s age-vari-

able obscenity standard.

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 50 of 127

50 Opinion of the Court 23-12160

(2015)). And the related canon of ejusdem generis teaches that a final,

general term at the end of a list of specific items should be inter-

preted “in light of any common attributes shared by the specific

items.” Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. 246, 252

(2024) (cleaned up). The dissent would have us therefore take

“lewd conduct” to encompass anything—or at least something—

that is distinct from the Act’s more specific prohibitions, yet still

similar enough that it can constitutionally be defined as obscene.

But these canons fire blanks here. 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). This furthers our suspicion that

“lewd conduct” is not a narrow, conclusory “catchall” but a broad

term hidden between two commas.

And even if a court were to apply the ejusdem canon, we

don’t see how it would help. The Act’s more specific prohibitions

do little to shed light on the meaning of “lewd conduct.” To apply

the ejusdem canon, a court would have to read the statute as barring

only “lewd conduct” that is somehow similar to the “nudity, sexual

conduct, sexual excitement, or specific sexual activities” prohibited

by the statute—but still distinct from them. Call us unimaginative,

but we are unsure what occupies that territory.

It is particularly perplexing to propose taking the term “sex-

ual conduct” as a guide to interpreting “lewd conduct.” If there is

any bedrock in obscenity doctrine, it is that obscenity must be

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 51 of 127

23-12160 Opinion of the Court 51

“sexual” in nature. Brown, 564 U.S. at 793 (quoting Miller, 413 U.S.

at 24). So to be proscribed under Miller, “lewd conduct” would

need to be “sexual.” But to have any content in the context of the

Act, “lewd conduct” would need to be distinct from “sexual con-

duct.” So the ejusdem canon would instruct a court to identify sex-

ual, “lewd conduct” that is not “sexual conduct.”

We’re stumped. And so, it seems, are the Secretary and the

dissent, neither of which provide a single example of “lewd con-

duct” that might be constitutionally deemed obscene (at least for

minors) but is not already covered by the Act’s other terms. Even

the Secretary waffles on this point, arguing only that “it is unclear

whether” the Act’s other terms “extend[] to the full reach of what

is regulable as obscenity.” Yet Florida’s determination that perfor-

mances like Jimbo’s are “lewd” suggest the state views that term

broadly indeed.

Other considerations increase our skepticism. The dissent

suggests “lewd conduct” is meant to cover “known unknowns”:

depictions the legislature did not think to include specifically but

would have if it had known of such exotic material while drafting,

Dissenting Op. at 23 (quoting Republic of Iraq v. Beaty, 556 U.S. 848,

860 (2009))—in other words, the legislature and the dissent would

know it when it sees it. Aside from that problem, this theory strains

against the fact that Florida’s other statutes protecting minors from

harmful content do not reference “lewd conduct.” See, e.g., Fla.

Stat. §§ 847.012–.013. The legislature presumably had something in

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 52 of 127

52 Opinion of the Court 23-12160

mind when it added the new “lewd conduct” prohibition. Yet no

one has shared what that might be.

Rather than speculate wholesale or attempt to turn the

“lewd conduct” provision into something it’s not, we think it best

to adopt “the State’s proffered interpretation” based on the broad

construction in Chesebrough and analyze the case accordingly. Man-

sky, 585 U.S. at 22 n.7. And nothing in our “analysis would change

if the State’s interpretation were also adopted by the [Florida] Su-

preme Court.” Id.

Finally, we note that even if “lewd conduct” could be cut

down to constitutional size, doing so would not cure all its prob-

lems. The term still falls far short of Miller’s requirement that pro-

hibited depictions be “specifically defined by the regulating state

law, as written or construed.” Miller, 413 U.S. at 27. The dissent

seems to suggest that the Supreme Court’s decision in Hamling of-

fers a way around the need for specific definition. But Hamling can-

not be so read to undermine that requirement, which the Supreme

Court has since reiterated is “critical.” Reno, 521 U.S. at 873.

Hamling upheld an obscenity conviction under a federal stat-

ute that barred sending “obscene, lewd, lascivious, indecent, filthy,

or vile” material through the mail. Hamling, 418 U.S. at 98, n.8

(quoting 18 U.S.C. § 1461). The Court interpreted the statute’s

scope as “limited to material such as that described in Miller.” Id.

at 115. The material at issue was “a form of hard-core pornography

well within the types of permissibly proscribed depictions de-

scribed in Miller.” Id. (We will spare readers the details and just

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 53 of 127

23-12160 Opinion of the Court 53

say that the material involved “a horse.” Id. at 93.) Essentially, the

content was so clearly one of the “obnoxiously debasing portrayals

of sex” described in Miller that the defendants could not plausibly

shelter under a vagueness claim, regardless of the specific-defini-

tion requirement. Id. at 112.

But Hamling never erased that requirement. Indeed, while

noting that Miller’s sample statutory language did not necessarily

exhaust the constitutional limits of obscenity, the Court stated that

“Congress could always define other specific ‘hard core’ conduct.”

Id. at 113 (emphasis added) (quoting Miller, 413 U.S. at 130 n.7).

And while Miller suggested what Hamling confirmed—that courts

may supply specific definitions of nebulous statutory language—

the thrust of those cases is that doing so meets the goals of the spe-

cific-definition requirement only when courts effectively adopt the

definitions in Miller. Those definitions have the benefit of both be-

ing specific and describing material that is indubitably obscene.

Hamling permits courts to treat obscenity statutes as incorporating

the specific definitions in Miller. It is not a free pass for legislatures

to tack on broad terms to the Miller prohibitions and allow courts—

or state officials enforcing the laws where these terms appear—to

fill in the blanks.

In short, we understand the Act’s prohibition on depictions

of lewd conduct to reach speech that is constitutionally protected,

even as to minors. That’s so because Miller’s test for unprotected

obscenity contains both substantive and definitional requirements.

Even if some of the “lewd” speech falls within the substantive scope

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 54 of 127

54 Opinion of the Court 23-12160

of speech that can, under Ginsberg and Miller, be deemed obscene

as to minors, it remains protected until the state clearly defines it

not to be so. 7 And that the state has not yet done.

That brings us to whether the Act is overbroad—that is,

whether it “punishes a ‘substantial’ amount of protected free

speech, ‘judged in relation to the statute’s plainly legitimate

sweep.’” Virginia v. Hicks, 539 U.S. 113, 118–19 (2003) (quoting

Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).

iii. The Act is unconstitutionally overbroad.

That the “lewd conduct” provision restricts protected

speech does not alone determine the Act’s constitutionality. But it

informs our review of Hamburger Mary’s facial challenge.

As we’ve mentioned, on a facial challenge, we examine

whether a law “prohibits a substantial amount of protected speech

relative to its plainly legitimate sweep.” Moody, 603 U.S. at 744

(quoting Hansen, 599 U.S. at 770). 8 A statute’s impact on speech

7 We emphasize that our holding does not doom the many state and federal

statutes that use the term “lewd.” As in Hamling, speech regulations targeting

“lewd” speech may be interpreted to apply to only the specific types of “hard

core” content Miller described. Miller, 413 U.S. at 27. But when, as here, a

statute lists that content in great detail and then adds a vague, broad descriptor,

we see no interpretive route to keep the statute within Miller’s substantive and

procedural limits.

8 America First urges us to use a “lopsided ratio” test, purportedly announced

in Hansen, 599 U.S. at 770, to determine whether the Act’s unconstitutional

applications so outnumber its constitutional ones that the Act is overbroad.

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 55 of 127

23-12160 Opinion of the Court 55

includes its “direct and indirect burdens.” Webb, 919 F.2d at 1499–

500. While overbreadth and vagueness are distinct, we’ve ex-

plained that vagueness can contribute to overbreadth because our

overbreadth analysis accounts for a law’s “ambiguous as well as . . .

unambiguous scope.” Id. at 1505–06.

As we show below, the Act is overbroad. At least two ele-

ments of the Act make it so. 9 First is the “depict[ions of] . . . lewd

conduct” provision. The problem is that the vague restriction on

“depict[ions of] . . . lewd conduct” threatens protected speech. Sec-

ond is the age-variable obscenity standard, which purports to nar-

row the Act’s scope but in fact just obscures its meaning.

1. The Act’s “lewd conduct” provision is

overbroad.

The “depict[ions of] . . . lewd conduct” provision restricts a

substantial amount of speech, including both speech that falls

within its scope and speech that does not but it threatens to chill by

But whatever test Hansen uses, we don’t think it differs much, if at all, from

the longstanding requirement that overbreadth “not only be real, but substan-

tial as well, judged in relation to the statute’s plainly legitimate sweep.” Broad-

rick, 413 U.S. at 615. After all, Hansen invokes the “substantial” test in its open-

ing paragraph. Hansen, 599 U.S. at 766 (quoting Broadrick, 413 U.S. at 615).

And in a post-Hansen First Amendment case, the Court required the plaintiff

to show that “the law at issue . . . ‘prohibits a substantial amount of protected

speech relative to its plainly legitimate sweep.’” Moody, 603 U.S. at 744 (2024)

(quoting Hansen, 599 U.S. at 770).

9 We do not address the Act’s provision concerning “lewd exposure of pros-

thetic or imitation genitals or breasts.”

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 56 of 127

56 Opinion of the Court 23-12160

its vagueness. “Lewd” speech, particularly as the FDBPR construes

the term, includes much that is protected even for minors.

For example, the Supreme Court in Bethel School District No.

403 v. Fraser weighed a public school’s punishment of a student

whose “lewd speech” at a student-government campaign forum re-

lied on “an elaborate, graphic, and explicit sexual metaphor.” 478

U.S. 675, 677, 678 (1986). The Court approved of his punishment

in the school context only and noted later that the “lewd speech”

“would have been protected” outside that setting. Morse v. Freder-

ick, 551 U.S. 393, 405 (2007) (discussing Fraser, 478 U.S. at 682–83).

Jimbo’s baloney birth, too, might be “lewd” to the FDBPR,

but it cannot be deemed “obscene” even for minors. “There is no

exhibition whatever of the actor[’s] genitals, lewd or otherwise.”

Jenkins v. Georgia, 418 U.S. 153, 161 (1974). The act is “simply not

the ‘public portrayal of hard core sexual conduct for its own sake’”

that falls within Miller’s scope. Id. (quoting Miller, 413 U.S. at 35).

One of the Act’s sponsor’s stated intent to target “Drag

Queen Story Time” also helps show the potential breadth of a term

like “lewd conduct.” See Ashleigh Walters, Florida Lawmaker Wants

to Stop Children from Attending Drag Events, WPTV (Mar. 24, 2023,

8:26 PM), https://www.wptv.com/news/lgbtq/florida-law-

maker-wants-to-stop-children-from-attending-drag-events

[https://perma.cc/3YNR-NPTJ]. Of course, one legislator’s inter-

pretation of the Act does not an authoritative construction make.

But it does betray how much protected speech may fall within the

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 57 of 127

23-12160 Opinion of the Court 57

Act’s “ambiguous as well as [its] unambiguous scope.” Webb, 919

F.2d at 1506.

The vagueness of the “lewd conduct” term only exacerbates

its breadth. As we’ve explained, the term “lewd conduct” is not a

model of clarity. Consider the Florida Supreme Court’s definition

of “lewd” in Chesebrough: “the unlawful indulgence of lust, signify-

ing that form of immorality which has a relation to sexual impu-

rity.” Chesebrough, 255 So. 2d at 677. This definition offers little

assurance to would-be speakers and to this Court that content

“about birth control practices, homosexuality . . . or the conse-

quences of prison rape”—all content the Supreme Court has held

is not necessarily obscene—for example, would not fall on the

wrong side of the Act’s proscriptions. Reno, 521 U.S. at 871.

Plus, Chesebrough’s definition of “lewd” shows how “lewd

conduct”—unlike the Act’s other, more specific prohibitions—is

decidedly in the eye of the beholder. Do same-sex relations “sig-

nify[] that form of immorality which has a relation to sexual impu-

rity”? Chesebrough, 255 So. 2d at 677. What about out-of-wedlock

sex? Or most pertinent here, dressing in clothes typically associated

with the non-birth-assigned gender? In the context of an otherwise

quite specific statute, the “lewd conduct” provision is a prosecuto-

rial skeleton key allowing “policemen, judges, and juries” to unlock

penalties and punish speech on “an ad hoc and subjective basis.”

Grayned, 408 U.S. at 109.

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 58 of 127

58 Opinion of the Court 23-12160

Finally, the incantation of the Miller factors does not satisfac-

torily limit the breadth of the “lewd conduct” provision.10 That’s

10 The Act’s requirement to judge performances’ appropriateness by statewide

community standards, rather than local ones, creates additional difficulties.

Miller required that obscenity be judged by “community standards,” as “[i]t is

neither realistic nor constitutionally sound to read the First Amendment as

requiring that the people of Maine or Mississippi accept public depiction of

conduct found tolerable in Las Vegas, or New York City.” Miller, 413 U.S. at

32. And to be sure, Miller upheld the use of statewide community standards

in the underlying prosecution, which dealt with a man who had mailed bro-

chures advertising raunchy books for sale. Id. at 17–18, 32.

More recently, though, the Court considered a challenge to a statute applying

“community standards” (with no clarification of local, state, or national ones)

when assessing whether Internet content was “harmful to minors.” Ashcroft v.

ACLU, 535 U.S. 564 (2002). The Court held that the potential for local stand-

ards to restrict speech on an inherently national medium did not, by itself,

make the statute facially overbroad. Id. at 585. But five Justices recognized to

some degree how “the national variation in community standards constitutes

a particular burden on Internet speech.” See id. at 597 (Kennedy, J., concurring

in the judgment, with Souter and Ginsberg, JJ.); id. at 589–91 (Breyer, J., con-

curring in part); id. at 586 (O’Connor, J., concurring in part). If the law in

Ashcroft burdened national speech by threatening to impose local standards,

the Act burdens speech by doing the opposite. “Live performances,” in con-

trast to the online speech in Ashcroft and the mailed brochures in Miller, are an

inherently local medium. (Even if the Act’s coverage of “presentation[s] in

front of a live audience” includes online performances, FDBPR’s enforcement

actions are tied to brick-and-mortar establishments.) The audience for a live

performance is disproportionately local—perhaps the only people likely to

drive from Tallahassee to see a drag show in Miami are FDBPR inspectors.

Yet the Act requires people to calibrate their speech, no matter how locally

targeted, according to the tastes of those living hundreds of miles away.

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 59 of 127

23-12160 Opinion of the Court 59

because the Act doesn’t actually adopt the Miller factors, which in-

clude the “critical requirement” to specifically define prohibited

speech. Reno, 521 U.S. at 873.

Contrary to the Miller specific-definition requirement, “lewd

conduct” essentially does nothing to define the prohibition beyond

the Miller factors themselves. “Conduct” includes nearly anything.

The Secretary’s proposed definitions of lewd—“eager for sexual in-

dulgence” or “a wicked, lustful, unchaste, licentious, or sensual in-

tent”—just duplicate or perhaps expand Miller’s “prurient interest”

requirement. See Prurient Interest, Black’s Law Dictionary (12th ed.

2014) (“A morbid, unhealthy fixation with sex, nudity, or obscene

or pornographic materials.”). The Act takes the Miller test as its

starting point but amorphously expands its scope rather than

In Ashcroft, even the three Justices who felt the least compelled to apply a na-

tional standard for Internet speech said so because they thought Internet

speakers could just limit access from particular jurisdictions. 535 U.S. at 583

(opinion of Thomas, J.). “If a publisher wishes for its material to be judged

only by the standards of particular communities, then it need only take the

simple step of utilizing a medium that enables it to target the release of its

material into those communities.” Id. But here, the Act regulates a quintes-

sentially local medium—performance before a “live audience”—yet would

judge it by a geographically broad standard. This is especially puzzling when

compared with Florida’s more general law against giving children material

“harmful to minors” (in a variety of mediums). See Fla. Stat. § 847.012. That

law does not specify that content is to be evaluated by statewide community

standards but just “standards in the adult community as a whole.” Id.

§ 847.001(7)(b). The potential mismatch of using statewide standards for local

speech while using local standards for broadly distributed speech only adds to

our concerns with the Act.

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 60 of 127

60 Opinion of the Court 23-12160

limiting it as Miller requires. Accepting the Secretary’s argument

would require us to ignore Miller’s specific-definition proviso, a

“critical” part of the rule. Reno, 521 U.S. at 873.

A facial overbreadth challenge requires us to assess a law’s

“legitimate sweep.” Broadrick, 413 U.S. at 615. We freely

acknowledge the difficulty in doing so here. We are unsure which

depictions of “lewd conduct,” if any, would satisfy the Miller-for-

minors test but not already be included within the Act’s more spe-

cific prohibitions. We presume that something falls into that cate-

gory, otherwise the term would be wholly duplicative. But if Miller

means anything, it is that an obscenity regulation’s sweep is only

“legitimate” if it is specific. The Act’s “lewd conduct” provision is

the opposite. The result is that venues like Hamburger Mary’s are

prone to restrict minors from consuming speech that they are

within their constitutional rights to access.

Not only that, but the Act’s sweep risks indirectly squelching

adults’ access to nonobscene speech. Of course, the likely outcome

of the Act—that venues require adults to show identification for

admittance to certain live performances—is not a tremendous bur-

den. But still, such a requirement would “completely bar” those

adults who do not have proof of age. See Reno, 521 U.S. at 856.

Enforcing an ID policy would also threaten to silence some

performances entirely. Whether online or not, age-verification re-

quirements “impose costs” on speakers or the venues that host

them: the costs of checking the identification of those who have it

and keeping out those who don’t. Id. This cost would, on the

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 61 of 127

23-12160 Opinion of the Court 61

margin, make some performances financially nonviable. Id. And

of course, the law’s vagueness, FBDPR’s apparently quite broad

view of the term “lewd,” and the Act’s harsh penalties expand the

range of venues that are likely to implement admissions restrictions

and the stringency with which they are likely to enforce them.

So the “lewd conduct” provision, given its vagueness and its

context, directly threatens protected speech. Its “legitimate sweep”

is marginal at best. And it indirectly burdens, or even jeopardizes

outright, a range of protected speech. Based on the record at this

preliminary stage, we think that Hamburger Mary’s challenge to

the “lewd conduct” regulation is likely to succeed on the merits.

2. The Act’s “age-variable” obscenity

standard is overbroad.

Were the “lewd conduct” provision the Act’s only constitu-

tional infirmity, we might be able to sever the clause and preserve

the rest of the statute. But the Act contains another legally innova-

tive—and constitutionally problematic—feature: an “age-variable”

obscenity standard that purports to narrow the Act’s scope but in

fact just expands it.

Dating back to Ginsberg, “harmful to minors” statutes have

typically defined which content is harmful with reference to minors

as a whole. See, e.g., Ginsberg, 390 U.S. at 646. For example, Florida

law generally defines “harmful to minors” as that which “is

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 62 of 127

62 Opinion of the Court 23-12160

patently offensive . . . for minors” and “is without serious value . . .

for minors.” Fla. Stat. § 847.001(7). 11

Of course, “minors” are not an undifferentiated group.

What is “harmful” for a child just learning to read may be very dif-

ferent than what is obscene for an adolescent on the edge of adult-

hood.

This poses two related challenges for “harmful to minors”

statutes. The first is interpretive: when a statute regulates material

that lacks serious value and is patently offensive “for minors,”

which minors are the reference group? The second relates to over-

breadth: if the obscenity standard for minors is based on the young-

est group of children or the average child across all ages, it will

cover much more material, and older minors could lose access to

harmless material on account of younger children’s sensitivities.

This problem and related overbreadth issues led the Su-

preme Court in Virginia v. American Booksellers Association, Inc., 484

U.S. 383, 398 (1988), to ask Virginia’s high court to clarify the state’s

statute barring the display to juveniles of material “harmful to mi-

nors.” The Virginia Supreme Court interpreted the state’s statute

narrowly to mitigate the overbreadth threat. Commonwealth v. Am.

Booksellers Ass’n, Inc., 372 S.E.2d 618 (Va. 1988). 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).

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 63 of 127

23-12160 Opinion of the Court 63

legitimate minority of juveniles, . . . consist[ing] of older, normal

(not deviant) adolescents.” Id. at 623. See also Am. Booksellers Ass’n

Inc. v. Virginia, 882 F.2d 125, 127 (4th Cir. 1989) (upholding Vir-

ginia’s statute as interpreted by the Virginia Supreme Court).

We soon adopted a similar (though arguably more speech-

protective) approach in American Booksellers v. Webb. There, we an-

alyzed a Georgia law restricting the display of materials “harmful

to minors.” Webb, 919 F.2d at 1500. We held that “[a]s applied to

a Ginsberg-type adaptation of the adult obscenity test . . . if any rea-

sonable minor, including a seventeen-year-old, would find serious

value, the material is not ‘harmful to minors.’” Id. at 1504–05. See

also Davis-Kidd Booksellers, Inc. v. McWherther, 866 S.W.2d 520, 527

(Tenn. 1993) (adopting Webb’s reasoning with respect to a Tennes-

see statute); ACLU v. Ashcroft, 322 F.3d 240, 254 n.16 (3d Cir. 2003)

(rejecting Webb’s narrow interpretation of “harmful to minors” and

thus enjoining enforcement of federal “Miller for minors” statute as

not narrowly tailored), aff’d on other grounds, 542 U.S. 656, 661

(2004).

Our interpretation of typical “harmful to minors” statutes

protects older children’s rights. But it means that younger children

may encounter material suitable for kids a few years older.

Responding to this potential underinclusion, the Act takes a

different (and to our knowledge, novel) 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 is the Goldilocks of speech regulation, ensuring

each child can access only that speech that is “just right” for their

age. Seventeen-year-olds have access to speech that would be ob-

scene as to sixteen-year-olds but not eighteen-year-olds, sixteen-

year-olds can see content that would be obscene as to fifteen-year-

olds but not seventeen-year-olds, and so on.12

But the Act’s strategy to avoid overbreadth problems intro-

duces other ones. The age-by-age maturity test is impossibly

vague. At oral argument, we asked the Secretary’s counsel how to

determine what might be acceptable for a twelve-year-old but not

an eight-year-old. Even when pressed, he could provide no

12 The age-variable standard distinguishes Florida’s law from two recently

challenged statutes elsewhere. The Sixth Circuit addressed a Tennessee law

regulating “adult-oriented performances that are harmful to minors.” See

Friends of George’s, Inc. v. Mulroy, 108 F.4th 431, 433 (6th Cir. 2024) (quoting

Tenn. Code. Ann. § 7-51-1401(3)(A)). That statute used a general “harmful to

minors” standard, which Tennessee’s high court had previously interpreted

the same way we did Webb: obscene even for seventeen-year-olds. Id. at 434

(citing Davis-Kidd, 866 S.W.2d at 522–23, 528). Because the Friends of George’s

plaintiffs did not allege that their performances (which included drag shows)

lacked serious value even for seventeen-year-olds, they were denied standing.

Id. at 439. In contrast to the Tennessee law, the Act’s age-variable standard

broadens its scope and accordingly gives standing to a wider range of parties.

The Act also differs from Texas’s law requiring online purveyors of “sexual

material harmful to minors” to verify their users are over eighteen. Tex. Civ.

Prac. & Rem. Code § 129B. The Supreme Court recently heard arguments in

a case challenging the law’s constitutionality. See generally Free Speech Coalition,

Inc. v. Paxton, No. 23-1122 (docketed Apr. 16, 2024). But Texas’s law, like Ten-

nessee’s, uses a general “harmful to minors” standard. So the Court’s decision

about the Texas statute will not necessarily affect our decision here.

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 65 of 127

23-12160 Opinion of the Court 65

guidance and instead simply acknowledged that there were “edge

cases.” Oral Argument at 10:28–45. Of course, most laws have

edge cases, and standard “harmful to minor” statutes are no excep-

tion. But as interpreted in Webb, these have only one “edge”: the

line between minority and adulthood.

In contrast, the Act has, at a minimum, eighteen (and per-

haps as many as 6,575). It asks speech purveyors to make judge-

ments about what is appropriate for children year-by-year (or

maybe month-by-month, week-by-week, or day-by-day—the Act is

not clear). This results in all the usual harms of statutory vague-

ness. The Act will chill more speech relative to the typical “harmful

to minors” statute that Webb contemplated: rather than risking a

chill for only speech at the border of adult obscenity, the Act threat-

ens speech that might clearly be appropriate for seventeen-year-

olds (so not “harmful to minors” under a statute like the one in

Webb) but questionable for children of younger ages. Worse still,

the Act’s vague standards create ample room for discriminatory en-

forcement.

Not only that, but which speech is appropriate for children

of different ages under the Act is left extraordinarily vague. The

Act provides no guidance. That contrasts mightily with other in-

stances when Florida has identified content it deems appropriate

for children based on their age: grade-level educational standards.

Take Florida’s grade-by-grade standards for K–12 education.

They’re extraordinarily detailed, running to 229 pages—and that’s

just for math class. Fla. State Bd. of Educ., Florida’s B.E.S.T.

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 66 of 127

66 Opinion of the Court 23-12160

Standards: Mathematics (2020), https://cpalmsme-

diaprod.blob.core.windows.net/uploads/docs/stand-

ards/best/ma/mathbeststandardsfinal.pdf

[https://perma.cc/BSZ5-4727]. But here, the Act does little to

teach speakers, performance venues, parents, or anyone else who

might “admit” a child to a performance what is acceptable for chil-

dren of any given age.

Consider this example: Miami is home to an historic, thirty-

five-foot-tall billboard for Coppertone sunscreen, which features

the brand’s historic logo—a girl, perhaps age seven, or so, with a

dog pulling at her swimsuit, revealing her pale posterior and its

contrast with her tanned skin. See Tim Swift, After Irma, Miami Cop-

pertone Girl Gets a Facelift, LOCAL10.COM (Dec. 12, 2017, 6:16 PM),

https://www.local10.com/news/2017/12/12/after-irma-miami-

coppertone-girl-gets-a-facelift [https://perma.cc/LB8H-MWD8].

Clearly, some have objected to this cheeky logo: Coppertone once

removed the “Coppertone girl” from the brand’s logo, then rein-

stated her with partial, then full coverage of her backside. Copper-

tone Logo, LOGOLOOK.NET (Jan. 3, 2024), https://logolook.net/cop-

pertone-logo [https://perma.cc/Z2TM-X3Y9]. Would a depiction

like the Coppertone logo be “patently offensive” for a five-year-old?

An eight-year-old? How about a seventeen-year-old? We don’t

know, and we don’t think the burden should be on speakers to find

out.

We do not decide today whether minors’ First Amendment

rights and the speech that may be deemed obscene for them is the

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 67 of 127

23-12160 Opinion of the Court 67

same at all ages. Obviously, children mature as they age (at least,

their parents hope so). Many laws distinguish between children

based on their age. Driving privileges or children’s ability to work

often phase in gradually over the course of adolescence. See, e.g.,

Fla. Stat. §§ 322.16 (restricting sixteen- and seventeen-year-olds’

driving hours), 450.081 (restricting sixteen- and seventeen-year-

olds’ work hours). Some privileges, like buying alcohol, are age-

restricted even among those who are at least eighteen. Fla. Stat.

§ 562.11.

But these rules provide very clear guidance as to what they

permit, when. The Act doesn’t, even as it regulates speech, where

“standards of permissible statutory vagueness are strict.” Button,

371 U.S. at 432. The resulting uncertainty as to what is permissible

for children of different ages creates an obvious chilling effect that

increases the Act’s effective breadth.

True, the distinction between seventeen and eighteen—the

one we enshrined in Webb—is not inherently less arbitrary or less

vague than the distinction between any other two ages. 13 But

much of our law and culture are oriented around the singular age

of majority.14 It is one thing to have a line between obscenity for

adults and for minors: it’s just one line, drawn in parallel to the

countless social norms and legal rights that distinguish between

13 Indeed, the statute Ginsberg upheld barred sales of “harmful to minors” ma-

terials to children “under 17 years of age.” Ginsberg, 390 U.S. at 631.

14 While states have different ages of majority, each state of course has just

one.

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 68 of 127

68 Opinion of the Court 23-12160

adults and children. This rich social context gives meaning and rel-

ative clarity to the line between that which is within minors’ rights

to access and that which is “adults-only.”

So from Ginsberg forward, we have recognized states’ ability

to distinguish in general terms between materials obscene for “a

willing ‘adult’ one month past the state law age of majority and a

willing ‘juvenile’ one month younger.” Miller, 413 U.S. at 27. This

kind of binary rule has tradeoffs. When that age cutoff comes at a

point less than the state’s age of majority, it leaves younger children

able to access speech essentially for the benefit of older children as

to whom it’s not obscene. But it avoids burdening older children’s

rights based on what might be inappropriate for younger ones. It

also mitigates speakers’ need to make a series of difficult judgment

calls about what is obscene for children of different ages.

And even if the Act’s unique age-variable standard were

completely clear, its implementation is likely to be more burden-

some than a binary rule like in Webb. That’s because admittance

to some shows may depend on proof of age from minors, not just

adults. Suppose a performance venue’s proprietors think a show is

acceptable for anyone at least twelve years old, but not younger.

How are they to determine with confidence that a child is old

enough to attend? Most adults have some readily accessible photo

identification showing their age; fewer children do, especially those

under driving age. When material is divided into two categories—

okay for all and adult-only—only adults need to prove their age, so

the burden on people’s access to protected speech is relatively low.

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 69 of 127

23-12160 Opinion of the Court 69

Under the Act’s regime, which relies on children needing to prove

their age to access speech, the burden is greater.

Finally, our overbreadth analysis must account for the fact

that other Florida law already covers much of the material the Act

prohibits. 15 Florida Statutes, Section 847.013(3)(a), for example,

makes it a misdemeanor to “knowingly admit a minor for a mone-

tary consideration to premises whereon there is exhibited a motion

picture, exhibition, show, representation, or other presentation

which, in whole or in part, depicts nudity, sexual conduct, sexual

excitement, sexual battery, bestiality, or sadomasochistic abuse and

which is harmful to minors.”

The Act’s primary extensions beyond this existing law, other

than the broad “lewd conduct” provision we’ve discussed, are (1)

that it covers performances attended without “monetary consider-

ation,” and (2) that it uses a gradated age standard rather than the

“harmful to minors” standard we took in Webb to mean “obscene

for seventeen-year-olds.” So the content the statute newly restricts

includes (1) free productions of material “harmful to minors” and

15 We need not resolve today all the complexities of analyzing the overbreadth

of statutes whose scope partially overlaps with other law. But we note that

counting already-prohibited speech within the “legitimate sweep” of a statute

for overbreadth purposes would create obvious problems. Doing so would

incentivize legislators to draft statutes redundantly to inflate the statute’s “le-

gitimate sweep” and thus dilute the law’s unconstitutional applications in the

overbreadth analysis. See R. George White, The Problems of Overbreadth and

What to Do About Them, 60 Hous. L. Rev. 1115, 1141 (2023).

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 70 of 127

70 Opinion of the Court 23-12160

(2) content obscene for younger children but not for seventeen-

year-olds.

The statute’s effective “legitimate sweep,” then, is a narrow

slice of speech: the bulk of it is performances that are obscene for

some minors but not for some others. Yet the Act’s vagueness at

every age means it is likely to stifle a substantial amount of pro-

tected speech. At oral argument, the Secretary’s attorney could not

explain the difference even between performances that would be

acceptable for an eight-year-old versus a twelve-year-old—a four-

year-gap that can be the difference between primary-age kids and

adolescents. Oral Argument at 10:28–45. If the Secretary’s attor-

ney can’t articulate the difference, it’s hard to imagine how we

could expect performance proprietors to know what the Act

means.

But let’s assume they could somehow magically discern

what even the Secretary’s attorney can’t define or provide guid-

ance for. In that improbable case, if we follow the Secretary’s lead,

performance proprietors would give at least a four-year buffer

when determining which performances are appropriate for which

ages. Every child may enjoy only performances the proprietors

think appropriate for children four years younger, and each perfor-

mance venue will be that much more limited in whom they can

admit. We think the gap between the speech that is protected for

children of various ages and the speech they will likely be allowed

to consume easily comprises “a ‘substantial’ amount of protected

free speech, ‘judged in relation to the statute’s plainly legitimate

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 71 of 127

23-12160 Opinion of the Court 71

sweep.’” Hicks, 539 U.S. at 118–19 (quoting Broadrick, 413 U.S. at

615).

The dissent insists that the age-variable standard requires

only an ordinary degree of “judgment at the margins,” similar to

what any foray into obscenity regulation will require. Dissenting

Op. at 37. But we cannot agree that the age-variable standard is

just an ordinary regulation of content “harmful to minors.”

For one, as we’ve explained, no one can have perfect

knowledge of the Act’s parameters. Recognition of that uncer-

tainty is perhaps the heart of modern First Amendment doctrine,

especially in the realm of obscenity. The Act recognizes that un-

certainty only to exploit it by demanding covered parties exercise

a great degree of “judgment at the margins.” Cf. Dissenting Op. at

37. But the age-variable standard means it’s “margins” all the way

down. The dissent rejects the notion that the “rich social context”

marking the age of majority makes it relatively easy to discern what

content is “adults-only” compared to determining the line be-

tween, say, content for ten-year-olds versus eleven-year-olds. Id.

But in the very next paragraph, the dissent acknowledges that “con-

text” informs all obscenity judgments. Id. at 38. We agree. The

Secretary simply not shown how context would help Floridians

make the judgments the Act requires.

Second, the age-variable standard would deprive Floridians

of much of the value of the traditional type of context that informs

legal judgment: precedent. Courts explicating a single standard

provide useful guidance to regulated parties. If one person steps

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 72 of 127

72 Opinion of the Court 23-12160

over the line for what is acceptable for minors as a whole, it creates

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). But what about fifteen-year-olds? Four-

teen-year-olds?

Third, the Act’s distinctive scienter regime creates more

dangers than limits. 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). In other

words, this is strict liability for anybody who admits a minor to a

performance after seeing a convincing fake ID. Even Florida’s laws

for serving minors alcohol are more forgiving. See Fla. Stat. §

562.11(1)(d). (And drinking or serving alcohol is not a constitu-

tional right.)

Fourth, and finally, the dissent does not address the fact that

the Act’s age-variable standard forecloses Webb’s path: reading a

“harmful to minors” statute as covering only content that is ob-

scene for all minors, even those who are almost of age. Doing so

dramatically narrows the potential scope and impact of a statute by

limiting it to material that is strictly adults-only. In Webb, we noted

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 73 of 127

23-12160 Opinion of the Court 73

that “only a minimal number of works will have serious value for

reasonable adults but not for reasonable [older] minors.” Webb,

919, F.2d at 1506. The burdens on speech purveyors and consum-

ers alike were minimal.

We cannot read the Act this way. The dissent does not

acknowledge this fact, let alone address the difference it makes.

Even if Floridians had perfect knowledge of which performances

were obscene for which ages under the Act, carrying out its re-

quirements would greatly burden speech that is impermissible for

younger minors but not older ones. Every performance with an

age cutoff somewhere between zero and eighteen would need to

check IDs at the door. Minor patrons—including those far too

young to have a driver’s license—would need to obtain and present

proof of age to access even performances are that constitutionally

protected speech for their age. The problem with the Act is not

just that it “lacks clarity,” Dissenting Op. at 35, but that even if its

substance were unambiguous, it would still burden protected

speech far beyond anything this Court has previously sanctioned.

To conclude our discussion of the Act, we note that nothing

we say today decides whether, in principle, some “age-variable”

obscenity standards can pass constitutional muster. Eight-year-

olds are different from thirteen-year-olds who are different from

seventeen-year-olds. If Florida wishes to describe in detail which

depictions it considers obscene for which ages, it is welcome to do

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 74 of 127

74 Opinion of the Court 23-12160

so. 16 Nor does anything we say touch on Florida’s many other laws

protecting children from harmful content. See, e.g., Fla. Stat.

§§ 847.012; 847.0125; 847.0133; 847.0134; 847.0138; 847.01385;

847.0141.

Florida speakers and parents also still retain the freedom to

decide what speech is appropriate at which ages. Nothing we say

impinges on parents’ ability to determine what performances are

appropriate for their children. And nothing we say limits the ability

of performers or performance venues to choose to welcome only

patrons of a certain age. But the Act would take those decisions

out of citizens’ hands and instead give them to the Secretary and

other State officials—all without clear notice of where the stand-

ards begin and end.

The Act’s age-variable standard poses as a well-tailored limit

on its application. But in practice it is yet another “I know it when

I see it” provision. For these reasons, the age-variable standard

sweeps more broadly than the obscenity statute we upheld in Webb

yet offers less guidance about what it covers. And the Act’s effec-

tive coverage expands significantly beyond its “legitimate sweep.”

16 Of course, nothing we say today eliminates the substantive limits on what

speech may be deemed obscene as to minors. It remains true that “[s]peech

that is neither obscene as to youths nor subject to some other legitimate pro-

scription cannot be suppressed solely to protect the young from ideas or im-

ages that a legislative body thinks unsuitable for them.” Erzoznik, 422 U.S. at

213–14. Neither statutory specificity nor the other prongs of the Miller test are

a blank check for suppression of disfavored speech. See Stevens, 559 U.S. at

479–80.

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 75 of 127

23-12160 Opinion of the Court 75

So Hamburger Mary’s appears likely to succeed on the merits of its

facial challenge.

D. A broad injunction of the Act is proper.

Last, we address the Secretary’s argument that the district

court erred by entering a so-called “universal” injunction prohibit-

ing the Act’s enforcement against anyone, not just Hamburger

Mary’s.

The contours of this argument are familiar. Injunctive relief,

the Secretary argues, has traditionally been limited to that which is

“no more burdensome to the defendant than necessary to provide

complete relief to the plaintiffs.” Madsen v. Women's Health Ctr.,

Inc., 512 U.S. 753, 765 (1994) (quoting Califano v. Yamasaki, 442 U.S.

682, 702 (1979)). So, the Secretary urges, enjoining a statute’s en-

forcement against parties not before this Court exceeds our equita-

ble powers. In support, the Secretary highlights cases like United

States v. National Treasury Employees Union, 513 U.S. 454 (1995).

There, the Court agreed that the relief from a facial First Amend-

ment challenge to a statute barring federal employees from making

paid speeches should be limited to the lower-ranking federal em-

ployees who formed the plaintiff class, and not extended to the

“high-level employees” who presented a “different constitutional

question than the one” the Court decided. Id. at 477–78.

This argument is especially familiar because we have ad-

dressed it before, in this very case. The Secretary raised similar ar-

guments when she asked us to stay the district court’s preliminary

injunction to the extent it prevented enforcement against

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 76 of 127

76 Opinion of the Court 23-12160

nonparties. HM Florida-Orl, LLC, 2023 WL 6785071, at *2–3. A ma-

jority of the panel held that the district court did not abuse its dis-

cretion by issuing universal relief. Id. at *4. We noted that while

that some cases in our circuit and the Supreme Court supported

the Secretary’s position, “they are not the only authorities on

point.” Id. And we observed that universal injunctions can play a

role that can take on special importance when it comes to First

Amendment cases. Id. at *3–4.

We briefly review the relevant authorities. The Supreme

Court has long recognized an “expansive remedy” for First Amend-

ment overbreadth challenges for the same reasons behind the over-

breadth doctrine: a fear that the threat of enforcement will chill

protected speech. Hicks, 539 U.S. at 119 (2003). See also Broadrick,

413 U.S. at 612 (Overbreadth litigants “are permitted to challenge

a statute not because their own rights of free expression are vio-

lated, but because of a judicial prediction or assumption that the

statute’s very existence may cause others not before the court to

refrain from constitutionally protected speech or expression.”).

We have, too. See, e.g., FF Cosmetics Fl, Inc. v. City of Miami Beach,

866 F.3d 1290, 1303-04 (11th Cir. 2017) (declaring enforcement of a

city ordinance “totally forbidden” (quoting Broadrick, 413 U.S. at

612)); HM Florida-Orl, LLC, 2023 WL 6785071, at *4 (collecting cases

“where a law has been found to be overbroad in violation of the

First Amendment [and] we have affirmed injunctions preventing

enforcement of a law or ordinance against nonparties as well as

parties”).

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 77 of 127

23-12160 Opinion of the Court 77

Nothing has changed since our previous decision.17 In fact,

the Supreme Court denied the Secretary’s later application for a

17 The dissent argues that the Supreme Court’s decision in Moody counsels

against consideration of a facial challenge here. Dissenting Op. at 41. But our

analysis shows that “a substantial number of [the Act’s] applications are un-

constitutional, judged in relation to the statute’s plainly legitimate sweep.”

Moody, 603 U.S. at 723. We think the “lewd conduct” provision has in essence

no “legitimate sweep”: the rest of the Act’s prohibitions cover the bulk of con-

tent that can be deemed obscene under Miller, if not all of it, and in any event

they cover everything that escapes the specific-definition requirement for ob-

scenity regulation. As for the age-variable requirement, our precedent in

Webb, Florida’s recent history of enforcing similar statutes, the “harmful to

minors” statutes already on Florida’s books, Hamburger Mary’s expressed

fears of enforcement, and the state’s inability to articulate any substantive

guideposts for interpreting the age-variable standard convince us that the Act

has little, if any, legitimate sweep, while the Act in practice would be likely to

directly and indirectly chill much more speech. Cf. Webb, 919 F.2d at 1502–09

(accounting for direct and indirect effects of speech regulation in conducting

facial overbreadth analysis).

This Act also simply does not present the kind of uncertainty Moody

confronted. The Court there noted that “[c]laims of facial invalidity often rest

on speculation about the law’s coverage and its future enforcement.” Moody,

603 U.S. at 723 (cleaned up). (Of course, this speculation just poses risks to

facial adjudication—not an absolute bar.) The parties in Moody focused on

how the challenged laws would apply in certain contexts: primarily, in social-

media platforms’ content moderation of public or semi-public posts, like “Fa-

cebook’s News Feed.” Id. at 724. “But argument . . . revealed that the laws

might apply to, and differently affect, other kinds of websites and apps” with

different technological mechanisms and First Amendment implications. Id. at

718. And especially “when confronted with the application of a constitutional

requirement to new technology,” the Court wished to “proceed with cau-

tion.” Id. at 796 (Alito, J., concurring in the judgment).

USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 78 of 127

78 Opinion of the Court 23-12160

partial stay on the same grounds the Secretary presented to us.

Griffin, 144 S. Ct. at 1. Six Justices agreed, with two observing that

whatever the merits of the Secretary’s objection to universal in-

junctions as a general matter, “the context of a First Amendment

overbreadth challenge” involves distinct “doctrinal complexities.”

Id. at 2.

We also note that the concerns we’ve expressed about the

“drastic form of relief” known as the nationwide injunction are

largely absent in this case involving a state law. Georgia v. President

of the U.S., 46 F.4th 1283, 1303 (11th Cir. 2022). Of course, even

nationwide injunctions are acceptable “in appropriate circum-

stances.” Florida v. Dep’t of Health & Hum. Servs., 19 F.4th 1271,

1281–82 (quoting Texas v. United States, 809 F.3d 134, 188 (5th Cir.

2015), as revised (Nov. 25, 2015)). Still, we have sometimes been

skeptical of nationwide injunctions of federal policies 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). No one has

suggested that the Act might apply in some context significantly different from

the one presented as the “heartland” of the law, let alone one that raises mean-

ingfully different First Amendment questions. Moody, 603 U.S. at 724. Some

“live performa

This text is long and has been trimmed here. Open the source document for the complete record.