HM Florida-ORL, LLC v. Secretary of the Florida Department of Business and Professional Regulation
U.S. Court of Appeals for the Eleventh Circuit
HM Florida-ORL, LLC v. Secretary of the Florida Department of Business and Professional Regulation
Opinion
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[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.
____________________
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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
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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
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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),
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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
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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
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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)).
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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
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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
).
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“[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
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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).
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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
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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
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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.
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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
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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.
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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
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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.
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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
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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.
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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.
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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.
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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),
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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.”
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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.
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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
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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)).
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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
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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
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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
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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.
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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
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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
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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,
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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
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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).
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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
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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.
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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
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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.
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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.
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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”
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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,
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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) (quotingFla. 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
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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 (quoting19 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).
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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) (quoting18 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”
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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
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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.
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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.
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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
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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
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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
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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
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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.
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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.”
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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
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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.
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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.
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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.
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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
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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
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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).
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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).
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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.
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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.
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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
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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.
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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.
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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).
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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
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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
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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
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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
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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.
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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
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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”).
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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).
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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 performance[s]” may take place at restaurants or bars, others in more
traditional theaters or even outdoors, but the basic speech dynamics are the
same. In contrast, the laws in Moody potentially reached speech settings nearly
as disparate as “direct messaging,” “events management,” “email,” “online
marketplace . . . customer reviews,” and “payment service[s].” Id. Moody
warns against considering only apples when reviewing a law that regulates
oranges and pears, too, but the Act regulates only apples.
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23-12160 Opinion of the Court 79
foundational principles of the federal court system” and encourage
forum shopping. Georgia, 46 F.4th at 1305–06.
But given that nationwide injunctions are nevertheless ac-
ceptable to “protect similarly situated nonparties,” Florida, 19 F.4th
at 1282(citing City of Chicago v. Barr,961 F.3d 882
, 916–17 (7th Cir.
2020)), statewide injunctions, which reach only within our Court’s
geographic jurisdiction and do not silence other federal courts who
might otherwise speak on the matter, enjoy an even stronger claim
to permissibility in appropriate circumstances. See also Mila So-
honi, The Lost History of the “Universal” Injunction, 133 Harv. L. Rev.
920, 958–79 (2020) (analyzing the history of “statewide” injunctions
and concluding it was likely “well understood [in the early part of
the twentieth century] that when a federal district court declared a
state law unconstitutional, it could properly enjoin the law’s en-
forcement against nonparties”).
The Secretary raises one new argument in this challenge to
the scope of the district court’s injunction, which she grounds in
courts’ supposed obligation to consider as-applied challenges be-
fore facial ones. More specifically, the Secretary contends that the
district court either determined that the Act was unconstitutional
as applied to Hamburger Mary’s so the court should have issued
relief as to only it, or that the district court improperly weighed in
on the Act’s facial overbreadth (and so issued broad relief) without
considering whether the statute was unconstitutional as applied.
To the first point, we do not read the district court’s order
as addressing the Act’s constitutionality only as applied to
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80 Opinion of the Court 23-12160
Hamburger Mary’s. The part of the order the Secretary cites in
support of her argument begins with a header, “The Act is a Facially
Content-Based Regulation,” (emphasis added) and the analysis not
surprisingly then considers a facial, not as-applied challenge.
As to the second argument, we disagree that courts cannot
reach an overbreadth challenge until they have evaluated an as-ap-
plied one. The Supreme Court did exactly that in Stevens, when it
held a federal statute “invalid under the First Amendment.” Ste-
vens, 559 U.S. at 482. In reaching its conclusion, the majority re-
jected the dissent’s argument that “because there has not been a
ruling on the validity of the statute as applied to Stevens, our con-
sideration of his facial overbreadth claim is premature.” Id. at 473
n.3. Like here, neither the parties nor the lower courts in Stevens
thought the case involved an as-applied challenge. Id. But the ab-
sence of an as-applied challenge or ruling did not prevent the Court
from deciding the case on facial overbreadth grounds. Id.
The Court’s decision in Americans for Prosperity Foundation v.
Bonta is even more illustrative, as the case clearly presented an as-
applied challenge but the Court opted to conduct only a facial anal-
ysis. The suit concerned petitioners’ as-applied and facial First
Amendment challenges to a California law requiring certain non-
profit organizations to disclose donors’ names and addresses. Ams.
for Prosperity Found. v. Bonta, 594 U.S. 595, 611 (2021). Although the
Court noted the as-applied challenge, it did not consider that chal-
lenge, instead holding California’s policy facially unconstitutional.
Id. at 618. In doing so, the majority rejected the dissent’s argument
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23-12160 Opinion of the Court 81
that only “as-applied relief” was warranted because in the major-
ity’s view, “the pertinent facts . . . are the same across the board”
and because “First Amendment freedoms need breathing space to
survive.” Id.(quoting Button,371 U.S. at 433
). That’s precisely the
case here.
Americans for Prosperity and Stevens show that whether or not
a plaintiff brings an as-applied challenge, a court may evaluate a
law’s constitutionality on its face. And as we have explained, when
a court holds a law facially unconstitutional, broad-based relief may
follow.
The district court’s ruling is therefore affirmed.
AFFIRMED.
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23-12160 TJOFLAT, J., Dissenting 1
TJOFLAT, Circuit Judge, dissenting:
“In litigation generally, and in constitutional litigation most
prominently, courts in the United States characteristically pause to
ask: Is this conflict really necessary?” Arizonans for Off. Eng. v. Ari-
zona, 520 U.S. 43, 75,117 S. Ct. 1055, 1072
(1997). Here, the Major-
ity fails to ask this question and, by skipping it, puts the First
Amendment on a collision course with core principles of federal-
ism and judicial restraint. Because this conflict was entirely avoida-
ble, I respectfully dissent.
This case presents a pre-enforcement challenge to Florida’s
new statute regulating the admission of minors to live, sexually ex-
plicit performances. The statute adopts the familiar Miller v. Califor-
nia, 413 U.S. 15,93 S. Ct. 2607
(1973), three-part obscenity test, ad-
justed only to account for the age of the child—an approach appar-
ently inspired by Supreme Court cases such as Ginsberg v. New York,
390 U.S. 629,88 S. Ct. 1274
(1968). In other words, whatever indi-
vidual lawmakers may have claimed, Florida’s legislature has
passed yet another run-of-the-mill obscenity statute.
But before Florida’s courts had any chance to interpret the
law, the District Court issued a sweeping injunction, holding that
the statute was likely unconstitutionally vague and overbroad. On
appeal of the injunction, we had two good options: we could apply
ordinary tools of statutory construction to read the statute nar-
rowly and avoid unnecessary constitutional conflict, or we could
certify the unsettled state-law questions to the Florida Supreme
Court, allowing the state’s highest court to speak first. Either
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2 TJOFLAT, J., Dissenting 23-12160
course would have honored federalism, respected judicial mod-
esty, and kept this Court within its Article III limits.
Instead, the Majority chooses a third, unwarranted path: it
reads the statute in the broadest possible way, maximizes constitu-
tional conflict, and strikes the law down wholesale. That decision
rests on two flawed premises. First, the Majority “assume[s]” that
the statutory phrase “lewd conduct” must “mean something differ-
ent” than what courts have understood it to mean for decades. Maj.
Op. at 46. Second, the Majority objects to the statute’s “age-varia-
ble” obscenity standard, apparently preferring an arbitrary, one-
size-fits-all age cutoff. See Maj. Op. at 60–74. But as I will explain,
neither argument justifies facial invalidation of the statute.
My dissent proceeds as follows: Part I provides the factual
and procedural background. Part II explains the constitutional
framework governing obscenity, overbreadth, and vagueness. Part
III addresses the statute’s lewd-conduct provision, showing why,
under proper construction, it avoids constitutional conflict—or at
minimum, why the question should have been certified to the Flor-
ida Supreme Court. Part IV examines the statute’s age-based ob-
scenity standard, explaining why that framework is neither vague
nor overbroad and why the Majority’s concerns should have been
resolved through narrowing interpretation or certification. Part V
explains why the District Court’s injunction sweeps too broadly.
And Part VI concludes.
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23-12160 TJOFLAT, J., Dissenting 3
I. Background
In 2023, Florida’s Legislature enacted Fla. Stat. § 827.11, a
statute making it a misdemeanor for a person to knowingly admit
a child to an “adult live performance.” The statute defines that
term, in part, to mean a sexually explicit show that would be ob-
scene in light of the child’s age. The statute provides:
(1) As used in this section, the term:
(a) “Adult live performance” means any show, exhi-
bition, or other presentation in front of a live audi-
ence which, in whole or in part, depicts or simulates
nudity, sexual conduct, sexual excitement, or specific
sexual activities as those terms are defined in s.
847.001, lewd conduct, or the lewd exposure of pros-
thetic or imitation genitals or breasts when it:
1. Predominantly appeals to a prurient, shameful, or
morbid interest;
2. Is patently offensive to prevailing standards in the
adult community of this state as a whole with respect
to what is suitable material or conduct for the age of
the child present; and
3. Taken as a whole, is without serious literary, artis-
tic, political, or scientific value for the age of the child
present.
(b) “Knowingly” means having general knowledge of,
reason to know, or a belief or ground for belief which
warrants further inspection or inquiry of both:
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4 TJOFLAT, J., Dissenting 23-12160
1. The character and content of any adult live perfor-
mance described in this section which is reasonably
susceptible of examination by the defendant; and
2. The age of the child.
(2) A person’s ignorance of a child’s age, a child’s mis-
representation of his or her age, or a bona fide belief
of a child’s consent may not be raised as a defense in
a prosecution for a violation of this section.
(3) A person may not knowingly admit a child to an
adult live performance.
(4) A violation of subsection (3) constitutes a misde-
meanor of the first degree, punishable as provided in
s. 775.082 or s. 775.083.
Fla. Stat. § 827.11.
Shortly after the statute’s enactment, an Orlando restaurant
known as Hamburger Mary’s sued Melanie Griffin, in her official
capacity as Secretary of the Florida Department of Business and
Professional Regulation. The restaurant alleged that the statute vi-
olated the First Amendment, asserting that the law prohibited it
from admitting minors to its drag performances. Hamburger
Mary’s also claimed that the statute was unconstitutionally broad
and vague. For example, it argued that “[t]he terms ‘predomi-
nately,’ ‘shameful or morbid’ are vague terms subject to the inter-
pretation of the reader and not subjective.” The restaurant con-
tended that “[t]he uncertainty about what specific conduct this law
prohibits . . . is precisely what concerns the Plaintiff in this case.” It
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23-12160 TJOFLAT, J., Dissenting 5
requested that “the Defendants be permanently enjoined from en-
forcing the [statute].”
A day after filing its complaint, Hamburger Mary’s moved
for a temporary restraining order and preliminary injunction. It ex-
panded on its concerns about overbreadth and vagueness and
asked the Court to block the statute from taking effect.
The District Court granted the preliminary injunction. See
HM Fla.-ORL, LLC v. Griffin, 679 F. Supp. 3d 1332 (M.D. Fla. 2023).
It found that Hamburger Mary’s had shown a substantial likelihood
of success on the merits of its First Amendment claim, concluding
that the statute was likely unconstitutionally overbroad and vague.
See id. at 1341–44. The Court enjoined Secretary Griffin from en-
forcing the statute statewide—not just against Hamburger Mary’s,
but against any person or entity. Id. at 1345. The Court also in-
cluded a footnote expanding the injunction to “proceedings insti-
tuted, maintained, or prosecuted under the statutes.” Id. at 1345 n.
17.
Four days later, the Secretary appealed. In the District
Court, she moved for a partial stay of the injunction, arguing that
even if enforcement were barred against Hamburger Mary’s, the
statute should remain enforceable against others during the appeal.
The District Court denied that motion, classifying the request as an
attempt “to neuter the Court’s injunction.” See HM Fla.-ORL, LLC
v. Griffin, No. 6:23-CV-950, 2023 WL 11257409, at *1 (M.D. Fla. July
19, 2023). Because the Court had concluded that the Act was
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6 TJOFLAT, J., Dissenting 23-12160
facially unconstitutional, it held that the injunction “necessarily
must extend to protect all Floridians.” Id. at *4.
The Secretary then sought a stay from our Court. A divided
panel denied the request. 1 See HM Fla.-Orl, LLC v. Governor of Fla.,
No. 23-12160, 2023 WL 6785071 (11th Cir. Oct. 11, 2023). The panel
majority reasoned that the District Court had not abused its discre-
tion in crafting an injunction that extended beyond the immediate
parties, especially given the First Amendment overbreadth con-
cerns. See id. at *3–4.
Judge Brasher dissented. He offered a careful and principled
analysis of why the injunction’s scope exceeded constitutional and
remedial limits. Id. at *4–6. He emphasized that under Article III,
established remedial principles, and Circuit precedent, federal
courts may grant only the relief necessary to redress the plaintiff’s
injury. Id. at *4–6. A universal injunction—one barring enforce-
ment against nonparties—was inappropriate, he explained, be-
cause an injunction limited to Hamburger Mary’s would have fully
remedied its asserted harms. Id.
The Secretary then sought a stay from the Supreme Court,
which denied the application. Griffin v. HM Fla.-ORL, LLC, 144 S.
Ct. 1, 1 (2023). Justice Thomas, Justice Alito, and Justice Gorsuch
would have granted the stay. Justice Kavanaugh, joined by Justice
Barrett wrote separately to clarify that the stay request raised only
1 Judges Jordan, Rosenbaum, and Brasher comprised the panel. The majority
order was issued “By the Court.”
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23-12160 TJOFLAT, J., Dissenting 7
the scope of the District Court’s injunction—not the underlying
First Amendment merits—and that the Secretary had not shown a
sufficient likelihood that the Supreme Court would grant certiorari
on that procedural issue. 2 Id. at 1–2.
II. The First Amendment Framework
A. Obscenity
The First Amendment provides that the government “shall
make no law . . . abridging the freedom of speech.” U.S. Const.
amend. I. Generally, this means that government regulations of
speech must survive heightened judicial scrutiny. For instance,
“[c]ontent-based laws—those that target speech based on its com-
municative content—are presumptively unconstitutional and may
be justified only if the government proves that they are narrowly
tailored to serve compelling state interests.” Reed v. Town of Gilbert,
576 U.S. 155, 163,135 S. Ct. 2218, 2227
(2015).
But not all speech receives full constitutional protection.
Since its inception, the First Amendment has allowed the regula-
tion of certain “well-defined and narrowly limited classes of
speech,” such as defamation, fraud, incitement, speech integral to
2 The Supreme Court denied the application for a stay on November 16, 2023.
One month earlier, on September 29, 2023, it had granted certiorari in Moody
v. NetChoice. As discussed below, the Court’s decision in Moody, issued on July
1, 2024, clarified the standards for evaluating facial challenges. The Court may
have declined to take up the procedural question because, as explained below,
Moody’s framework compels reversal of the broad injunction here. See infra
Part V.
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8 TJOFLAT, J., Dissenting 23-12160
criminal conduct—and obscenity. United States v. Stevens, 559 U.S.
460, 468,130 S. Ct. 1577, 1584
(2010) (quoting Chaplinsky v. New
Hampshire, 315 U.S. 568, 571–72,62 S. Ct. 766, 769
(1942)). These
forms of speech “are of such slight social value as a step to truth
that any benefit that may be derived from them is clearly out-
weighed by the social interest in order and morality.” Chaplinsky,
315 U.S. at 572,62 S. Ct. at 769
.
It “has been categorically settled . . . that obscene material is
unprotected by the First Amendment.” Miller, 413 U.S. at 23,93 S. Ct. at 2614
. Still, “statutes designed to regulate obscene materials
must be carefully limited.” Id. at 23–24, 93 S. Ct. at 2614. That is
why, in Miller v. California, the Supreme Court “confine[d] the per-
missible scope of such regulation” by establishing a three-pronged
test:
(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.
Id. at 24, 93 S. Ct. at 2614–15 (citation omitted).
Among other things, this test limits the definition of obscen-
ity “to works which depict or describe sexual conduct.” Id. And it
requires that regulated conduct “be specifically defined by the ap-
plicable state law, as written or authoritatively construed.” Id. But
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23-12160 TJOFLAT, J., Dissenting 9
the Court in Miller made clear that “existing state statutes, as con-
strued heretofore or hereafter, may well be adequate.” Id. at 24, 93
S. Ct. at 2615 n.6. Indeed, in a case decided the same day as Miller,
the Court noted its own willingness to construe federal obscenity
statutes so as to avoid constitutional doubts. See United States v. 12
200-Foot Reels of Super 8mm. Film, 413 U.S. 123, 130,93 S. Ct. 2665
,
2670 n.7 (1973).
To be clear, Miller does not demand complete precision in
how states define obscenity. As the Court in Miller noted, “[i]f the
inability to define regulated materials with ultimate, god-like pre-
cision altogether removes the power of the States or the Congress
to regulate, then ‘hard core’ pornography may be exposed without
limit to the juvenile, the passerby, and the consenting adult alike.”
Miller, 413 U.S. at 27–28, 93 S. Ct. at 2617. Consequently, for a stat-
ute to provide fair notice, the Constitution requires only “that the
language conveys sufficient[l]y definite warning as to the pro-
scribed conduct when measured by common understanding and
practices.” Roth v. United States, 354 U.S. 476, 491,77 S. Ct. 1304, 1312
(1957) (internal quotation marks omitted).
Miller also recognizes the states’ “legitimate interest” in pre-
venting obscene material from being “expos[ed] to juveniles.” Mil-
ler, 413 U.S. at 18–19, 93 S. Ct. at 2612. Miller echoes sentiments
expressed in an earlier case, Ginsberg v. New York, where the Court
upheld a statute specifically targeting the sale of obscene materials
to minors. See id. at 36, 93 S. Ct. at 2621 n.17; Ginsberg, 390 U.S. at
631–34, 88 S. Ct. at 1275–77.
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10 TJOFLAT, J., Dissenting 23-12160
In Ginsberg, the Court explained that the First Amendment’s
protections were not identical for adults and minors, reiterating
that “the power of the state to control the conduct of children
reaches beyond the scope of its authority over adults.” Ginsberg, 390
U.S. at 638,88 S. Ct. at 1280
(quoting Prince v. Massachusetts,321 U.S. 158, 170
,64 S. Ct. 438, 444
(1944)). And in cases following Gins-
berg and Miller, the Supreme Court continued to emphasize the
government’s special interest in protecting children from exposure
to otherwise protected speech. See, e.g., F.C.C. v. Pacifica Found., 438
U.S. 726, 749–50,98 S. Ct. 3026
, 3040–41 (1978) (citing “the con-
cerns recognized in Ginsberg” as justifying the regulation of “inde-
cent broadcasting”).
B. Overbreadth and Vagueness
“For a host of good reasons, courts usually handle constitu-
tional claims case by case, not en masse.” Moody v. NetChoice, LLC,
603 U.S. 707, 723,144 S. Ct. 2383
, 2397 (2024). So plaintiffs wishing
to challenge a law on its face usually must prove either “that no set
of circumstances exists under which the [law] would be valid” or
“that the law lacks a ‘plainly legitimate sweep.’” Id. (alteration in
original) (quoting United States v. Salerno, 481 U.S. 739, 745,107 S. Ct. 2095, 2100
(1987); Wash. State Grange v. Wash. State Republican
Party, 552 U.S. 442, 449,128 S. Ct. 1184
(2008)).
This high bar is lowered only slightly for First Amendment
challenges. In this unique context, “to provide breathing room for
free expression,” the Supreme Court has “substituted a less de-
manding though still rigorous standard.” Id. (internal quotation
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23-12160 TJOFLAT, J., Dissenting 11
omitted). When a plaintiff challenges a law as facially overbroad, the
question for courts becomes whether “a substantial number of [the
law’s] applications are unconstitutional, judged in relation to the
statute’s plainly legitimate sweep.” Id. (alteration in original) (quot-
ing Ams. for Prosperity Found. v. Bonta, 594 U.S. 595, 615,141 S. Ct. 2373
(2021)).
The law’s unconstitutional effect must be substantial because
facial invalidation is still “strong medicine” that “destroys some
good along with the bad.” United States v. Hansen, 599 U.S. 762, 770,
143 S. Ct. 1932, 1939 (2023). Just recently, the Supreme Court ad-
monished us to be more rigorous in our handling of overbreadth
claims. See Moody, 603 U.S. at 724, 144 S. Ct. at 2397–98. Moody re-
iterates that a court considering an overbreadth challenge must
ask: “What activities, by what actors, do the laws prohibit or oth-
erwise regulate?” Id. And once the court answers this question, it
“must explore the laws’ full range of applications—the constitu-
tionally impermissible and permissible both—and compare the
two sets.” Id. at 726, 144 S. Ct. at 2398. Only then can the court
properly declare that a law is, in fact, overbroad.
Alternatively—or in addition to overbreadth—a plaintiff
may challenge a law on its face because it is unconstitutionally
vague. The vagueness doctrine is technically an outgrowth of due
process, but it features prominently in First Amendment chal-
lenges. See, e.g., United States v. Williams, 553 U.S. 285, 304,128 S. Ct. 1830, 1845
(2008). In general, a law is void for vagueness if it
“fails to provide a person of ordinary intelligence fair notice of what
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12 TJOFLAT, J., Dissenting 23-12160
is prohibited, or is so standardless that it authorizes or encourages
seriously discriminatory enforcement.” Id. Once again, however,
“perfect clarity and precise guidance have never been required
even of regulations that restrict expressive activity.” Id.
III. The Lewd-Conduct Provision
In reaching its conclusion that Fla. Stat. § 827.11 is both
vague and overbroad, the Majority relies on a key premise—that
the statutory phrase “lewd conduct” must sweep in at least some
protected speech. But that is wrong for at least four reasons:
• First, the phrase, as appropriately construed, satisfies Miller’s
specificity requirements.
• Second, the phrase is not “mere surplusage,” see Maj. Op. at 46,
and labeling it as such does not end our statutory analysis.
• Third, even if the text remained unclear after a full analysis, cer-
tification to the Supreme Court of Florida was the proper solu-
tion.
• And fourth, even if we assume the Majority’s reading to be cor-
rect, its facial overbreadth analysis would be woefully inade-
quate to invalidate the law.
A. Specificity and Narrow Construction
The Majority’s analysis starts with the claim that phrases like
“lewd conduct” are too broad to satisfy Miller’s specificity require-
ment. Maj. Op. at 44. It takes the example definitions in Miller as
proof that the Supreme Court would not have allowed anything
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23-12160 TJOFLAT, J., Dissenting 13
less precise. That claim is remarkable because the Court in Miller
resisted that argument itself, and in later cases outright rejected it.
Miller holds that the conduct regulated by an obscenity stat-
ute “must be specifically defined by the applicable state law, as writ-
ten or authoritatively construed.” Miller, 413 U.S. at 24,93 S. Ct. at 2615
(emphasis added). The Majority emphasizes this specificity re-
quirement, but it gives short shrift to the courts’ role in statutory
construction. Miller plainly contemplates an active role for courts
in providing narrowing constructions of obscenity statutes. And in
later cases applying Miller, the Supreme Court has led by example.
See, e.g., Hamling v. United States, 418 U.S. 87, 115,94 S. Ct. 2887, 2906
(1974).
In Miller, the Court “emphasize[d] that it [wa]s not [its] func-
tion to propose regulatory schemes for the States.” Id. at 25, 93 S.
Ct. at 2615. Rather, it sought only “to give a few plain examples of
what a state statute could define for regulation.” Id. (emphasis
added). Those examples included “[p]atently offensive representa-
tions or descriptions of ultimate sexual acts, normal or perverted,
actual or simulated,” and “[p]atently offensive representation or
descriptions of masturbation, excretory functions, and lewd exhibi-
tion of the genitals.” Id. Far from an exhaustive list, these examples
were meant to illustrate the sort of “‘hard core’ sexual conduct”
with which Miller was concerned. See id. at 27, 93 S. Ct. at 2616.
In 12 200-Foot Reels, decided the same day as Miller, the Court
remarked on its own role in construing federal obscenity statutes.
See 12 200-Foot Reels, 413 U.S. at 130, 93 S. Ct. at 2670 n.7. While it
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14 TJOFLAT, J., Dissenting 23-12160
“le[ft] to state courts the construction of state legislation,” the
Court noted its own “duty to authoritatively construe federal stat-
utes where ‘a serious doubt of constitutionality is raised’ and ‘a con-
struction of the statute is fairly possible by which the question may
be avoided.’” Id. (quoting United States v. Thirty-Seven Photographs,
402 U.S. 363, 369,91 S. Ct. 1400, 1404
(1971)). To do so, the Court
was prepared to construe terms such as “‘obscene,’ ‘lewd,’ ‘lascivi-
ous,’ ‘filthy,’ ‘indecent,’ or ‘immoral’” as compatible with the ex-
amples Miller provided. Id.
In Hamling v. United States, the Court delivered as promised:
it construed 18 U.S.C. § 1461—prohibiting “obscene, lewd, lascivi-
ous, indecent, filthy[,] or vile” mailings—as consistent with Miller’s
requirements. Hamling, 418 U.S. at 112,94 S. Ct. at 2905
. At the
same time, the Court made clear that Miller’s examples “were not
intended to be exhaustive.” Id. at 114, 94 S. Ct. at 2906. Again, their
purpose was merely to emphasize a line that legislators could not
cross: obscenity regulation must be limited to depictions of sexual
conduct. See id.; see also Stevens, 559 U.S. at 479–80, 130 S. Ct. at
1591 (declining to extend Miller to depictions of animal cruelty);
Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 792–93,131 S. Ct. 2729
,
2734–35 (2011) (declining to extend Miller to depictions of vio-
lence).
If it were possible to define the phrase “lewd conduct” with
perfect clarity, courts presumably would have done so already. The
Court in Miller was, as the Majority notes, concerned with specific-
ity and fair notice. See Miller, 413 U.S. at 27–28, 93 S. Ct. at 2616–
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23-12160 TJOFLAT, J., Dissenting 15
17. Yet the Court in Miller readily acknowledged the limits of hu-
man language, refusing to require “ultimate, god-like precision” of
lawmakers. Id. Rather, as long as states abided by Miller’s three
prongs, the Court was “satisfied that these specific prerequisites
w[ould] provide fair notice” to would-be defendants. Id.
Miller and its progeny “were intended neither as legislative
drafting handbooks nor as manuals of jury instructions.” Hamling,
418 U.S. at 115,94 S. Ct. at 2906
. Legislators are not expected to be
omnipotent, but Courts are expected to construe statutes, when-
ever possible, to comply with the limitations outlined in Miller. The
key limitation is that obscene speech depicts sexual acts, of which
Miller provides examples. Here, § 827.11—including its reference
to “lewd conduct”—can and should be construed to satisfy Miller’s
specificity requirement. The Supreme Court has shown us how to
do so.
B. Canons of Construction
1. “Mere Surplusage”
The Majority’s analysis continues with the claim that the
phrase “lewd conduct” might be “mere surplusage” because
§ 827.11 also describes some more specific conduct falling within
its prohibition. The Majority’s reasoning is as follows: The statute
defines adult live performances as depicting “lewd conduct, or the
lewd exposure of prosthetic or imitation genitals or breasts.” Maj.
Op. at 42; Fla. Stat. § 827.11(1)(a). But the statute also lists “nudity,
sexual conduct, sexual excitement, [and] specific sexual activities as
those terms are defined in [Section] 847.001.” Id. Section 847.001,
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16 TJOFLAT, J., Dissenting 23-12160
in turn, contains a laundry list of sexual acts. Maj. Op. at 43; Fla.
Stat. § 847.001. Therefore, “lewd conduct,” if defined consistently
with Miller, could not possibly refer to acts that are not already de-
scribed elsewhere in the statute. Id.
Of course, the Majority acknowledges that courts have, in
the decades following Miller, upheld statutes prohibiting “lewd”
acts by defining the term consistently with our Constitution. Maj.
Op. at 43–46. For instance, in Chesebrough v. State, 255 So. 2d 675,
677 (Fla. 1971), the Supreme Court of Florida explained that
“[l]ewdness may be defined as the unlawful indulgence of lust, sig-
nifying that form of immorality which has a relation to sexual im-
purity.” 3 And in 12 200-Foot Reels and Hamling, the United States Su-
preme Court explained how those and similar terms could be read
consistently with the examples of “‘hard core’ sexual conduct” pro-
vided in Miller. See 12 200-Foot Reels, 413 U.S. at 130, 93 S. Ct. at 2670
n.7; Hamling, 418 U.S. at 110–14, 94 S. Ct. at 2904–06.
So why does the Majority not rely on these cases? It says it
cannot do so because Florida has defined away all permissible ap-
plications of “lewd conduct” elsewhere in § 827.11’s text. That
claim is remarkable for two reasons: First, it requires us to adopt
precisely the same “I know it when I see it” approach the Majority
3 The Court further noted that “‘[l]ewd’ and ‘lascivious’ are words in common
use, and the definitions indicate with reasonable certainty the character of acts
and conduct which the Legislature intended to prohibit and punish, so that a
person of ordinary understanding may know what conduct on his part is con-
demned.” Chesebrough, 255 So. 2d at 677.
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23-12160 TJOFLAT, J., Dissenting 17
condemns. And second, it suggests that our primary role in inter-
preting statutes is avoiding redundancy—rather than, say, avoiding
constitutional conflict.
On the first point, courts should not be in the business of
deciding whether a state has so perfectly captured the essence of
hard-core sexual conduct. It is ironic that the Majority repeatedly
jabs at Justice Stewart’s “I know it when I see it” quip when its own
analysis boils down to the same claim. See Jacobellis v. Ohio, 378 U.S.
184, 197,84 S. Ct. 1676, 1683
(1964) (Stewart, J., concurring). Trust
us, the Majority says, we know exactly what depictions are impli-
cated in Miller, and Florida has exhausted them all. See Maj. Op. at
46. That is a dubious claim because Miller does not even attempt to
define “‘hard core’ sexual conduct”—it explicitly leaves that to the
states. See Miller, 413 U.S. at 27–28, 93 S. Ct. at 2616–17. We should
do the same. To faithfully apply Miller, we must enforce its limita-
tions while at the same time respecting states’ ultimate authority
over the act of legislation.
On the second point, the Majority mistakes our Court’s role
for that of an editor reviewing text for stylistic error. Contrary to
the Majority’s analysis, redundancy is not such a great evil that it
singlehandedly precludes us from upholding a statute. A court’s
role in statutory construction is to consult the myriad interpretive
tools available to glean the statute’s proper meaning. By disregard-
ing all these tools save for one—the surplusage canon—the Major-
ity short-circuits this process and gives Fla. Stat. § 827.11 an artifi-
cially problematic scope.
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18 TJOFLAT, J., Dissenting 23-12160
By default, we construe statutory text in accordance with its
ordinary meaning. Heyman v. Cooper, 31 F.4th 1315, 1319 (11th Cir.
2022). To do so, we consult and apply various interpretive princi-
ples—often called “canons of construction.” Id. These canons are
“useful tools,” but they are not strict rules. See Facebook, Inc. v.
Duguid, 592 U.S. 395, 410–13,141 S. Ct. 1163
, 1173–75 (2021) (Alito,
J., concurring). Rather, they are best treated as instruments in a
“statutory-interpretation toolbox,” and it would be a mistake to
rely on one to the detriment of all others. See West Virginia by &
through Morrisey v. U.S. Dep’t of the Treasury, 82 F.4th 1068, 1071–72
(11th Cir. 2023) (Rosenbaum, J., dissenting from denial of rehearing
en banc).
Yet the Majority does exactly that: it treats a single tool, the
surplusage canon, as dispositive of the statute’s meaning. But
“[r]edundancy is not a silver bullet.” Rimini St., Inc. v. Oracle USA,
Inc., 586 U.S. 334, 346,139 S. Ct. 873, 881
(2019). Although courts
try to read text so that each word carries independent meaning,
“our preference for avoiding surplusage constructions is not abso-
lute.” Lamie v. U.S. Trustee, 540 U.S. 526, 536,124 S. Ct. 1023, 1031
(2004). Often, we must tolerate some redundancy even if we think
it in poor taste:
So like all other canons, this one must be applied with
judgment and discretion, and with careful regard to
context. It cannot always be dispositive because (as
with most canons) the underlying proposition is not
invariably true. Sometimes drafters do repeat them-
selves and do include words that add nothing of
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23-12160 TJOFLAT, J., Dissenting 19
substance, either out of a flawed sense of style or to
engage in the ill-conceived but lamentably common
belt-and-suspenders approach.
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 176–77 (2012).
Examples of the “belt-and-suspenders approach” abound:
“Execute and perform—what satisfies one but not the other? Rest, res-
idue, and remainder—could a judge interpret these as referring to
three distinct things? Peace and quiet—when is peace not quiet?” Id.
at 177. I would add the phrase “obscene, lewd, lascivious, indecent,
filthy[,] or vile.” See 18 U.S.C. § 1461. Under the Majority’s logic,
the word “obscene” alone should “exhaust the types of ‘hard core’
depictions that Miller described.” See Maj. Op. at 46 (quoting Miller,
413 U.S. at 25, 93 S. Ct. at 2615). After all, the First Amendment
exception detailed in Miller pertains exclusively to “obscene mate-
rials.” See Miller, 413 U.S. at 23–24, 93 S. Ct. at 2614–15. If some-
thing is not obscene, it cannot be regulated under Miller. So, by the
Majority’s reasoning, the statutory words “lewd, lascivious, filthy,
[and] vile” presumably must cover conduct beyond Miller’s permit-
ted scope.
But that is not what the Supreme Court concluded in Ham-
ling, and it is not how courts interpret statutes. In Hamling, the
Court addressed this statutory language and held that it could be
construed entirely consistent with Miller. See Hamling, 418 U.S. at
114, 94 S. Ct. at 2906. Indeed, the Court noted its “duty to authori-
tatively construe federal statutes where a serious doubt of consti-
tutionality is raised and a construction of the statute is fairly
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20 TJOFLAT, J., Dissenting 23-12160
possible by which the question may be avoided.” Id. at 113, 94 S.
Ct. at 2905. Because such a construction was possible, the Court
interpreted the statute to abide by Miller. Id. at 114, 94 S. Ct. at 2906.
2. The Constitutional Doubt Canon
Hamling demonstrates the application of the constitutional-
doubt canon. Put simply, the canon provides that a statute should
be interpreted so as to avoid placing its constitutionality in doubt.
See Zadvydas v. Davis, 533 U.S. 678, 689,121 S. Ct. 2491, 2498
(2001).
As the Supreme Court recently put it, “It bears emphasis that even
if the Government’s reading were not the best one, the interpreta-
tion is at least ‘fairly possible’—so the canon of constitutional
avoidance would still counsel us to adopt it.” Hansen, 599 U.S. at
781, 143 S. Ct. at 1946 (quoting Jennings v. Rodriguez, 583 U.S. 281,
296,183 S. Ct. 830
, 842 (2018)). That is because “[w]hen legislation
and the Constitution brush up against each other, our task is to seek
harmony, not to manufacture conflict.” 4 Id.
The constitutional-doubt canon is of special significance
here, where a federal court sits in review of a state statute. In gen-
eral, the canon respects the separation of powers by avoiding con-
flict between courts and legislatures. But here it also furthers prin-
ciples of federalism and comity because it avoids friction between
the states and our federal government. We should remember that
4 The Supreme Court explicitly rejected the idea “that the canon [of constitu-
tional avoidance] has less force in the context of an overbreadth challenge.”
Hansen, 599 U.S. at 781, 143 S. Ct. at 1946 n.3.
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23-12160 TJOFLAT, J., Dissenting 21
we are not the court charged with authoritatively construing
§ 827.11—that would be the Supreme Court of Florida. So we
should be especially reluctant to strike down the statute before that
Court has had the chance to read it.
3. Other Canons
But the list goes on: the Majority’s strained reading of
§ 827.11 bypasses too many interpretive principles to count. Con-
sider the noscitur a sociis canon, which provides 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. 528
, 537,135 S. Ct. 1074
(2015)). That is, “words grouped in a list
should be given related meaning.” Third Nat’l Bank in Nashville v.
Impac Ltd., 432 U.S. 312, 322,97 S. Ct. 2307, 2313
(1977) (emphasis
added). This principle “avoids ascribing to one word a meaning so
broad that it is inconsistent with the company it keeps.” Fischer v.
United States, 603 U.S. 480, 487,144 S. Ct. 2176
, 2183–84 (2024) (in-
ternal quotation marks omitted). Here, the Majority would flip the
canon directly on its head: it singles out the phrase “lewd conduct”
as meaning something fundamentally different from its associates.
Consider also the ejusdem generis canon, which states that
courts “interpret a general or collective term at the end of a list of
specific items in light of any common attributes shared by the spe-
cific items.” Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. 246,
252,144 S. Ct. 905
, 911 (2024) (cleaned up). The canon applies here,
where the phrase “lewd conduct” follows after the statute lists “nu-
dity, sexual conduct, sexual excitement, or specific sexual activities
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22 TJOFLAT, J., Dissenting 23-12160
as those terms are defined in s. 847.001.” See Fla. Stat. § 827.11. In-
deed, the statute incorporates § 847.001’s “specific sexual activities”
before inserting the “lewd conduct” phrase. See id. The statute’s enu-
meration of terms is not perfectly sorted by specificity, but its or-
dering still lends credence to the idea that “lewd conduct” was in-
tended merely as a catchall phrase, rather than a significant expan-
sion of the statute’s scope.
Both the canons of noscitur a sociis and ejusdem generis “track
the common sense intuition that [a legislature] would not ordinar-
ily introduce a general term that renders meaningless the specific
text that accompanies it.” Fischer, 603 U.S. at 487, 144 S. Ct. at 2184.
This approach prevents redundancy—the Majority’s desired end—
but it does so by reading the text harmoniously, rather than pitting
the statute against itself. Here, § 827.11’s enumeration of specific
terms—especially the “specific sexual activities” incorporated from
§ 847.001—serves a useful purpose in limiting the statute’s “lewd
conduct” phrase to similar, hard-core depictions of sexual conduct. 5
5 Our own federal statutes are rife with examples of catchall phrases that are
influenced by their preceding terms. Consider obstruction statutes such as 18
U.S.C. § 1519. That statute penalizes anyone who “knowingly alters, destroys,
mutilates, conceals, covers up, falsifies, or makes a false entry in any record,
document, or tangible object” to obstruct a federal investigation. 18 U.S.C.
§ 1519. In Yates v. United States, the Supreme Court was asked whether a fish
was a “tangible object” under the statute. Yates, 574 U.S. at 531–32, 135 S. Ct.
at 1078–79. Answering that question in the negative, a majority of the Court
relied on canons such as noscitur a sociis and ejusdem generis to confine the
term’s meaning to “objects one can use to record or preserve information, not
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23-12160 TJOFLAT, J., Dissenting 23
4. Implications
The Majority’s approach creates a perverse incentive for
state legislatures to regulate with less specificity—not more. A rea-
sonable legislature wants its statutes to cover all the conduct it con-
siders undesirable. But it also prefers that the public has as much
notice as possible as to which forms of conduct are prohibited. That
way, people will be more likely to avoid that conduct in the first
place, and there will be less need for enforcement by prosecution.
The natural solution, then, is for legislatures to enact statutes con-
taining both specific terms and catchall provisions. A “catchall” ad-
dresses “known unknowns,” conduct that was not specifically con-
templated by legislators but that falls naturally within the statute’s
ambit. Republic of Iraq v. Beaty, 556 U.S. 848, 860,129 S. Ct. 2183, 2191
(2009). But in statutory interpretation, “‘known unknowns’
should be similar to known knowns,” so any catchall is limited to
the kinds of conduct that the legislators did contemplate, which are
exemplified by the statute’s more specific terms. See Yates, 574 U.S.
at 551, 135 S. Ct. at 1089 (Alito, J., concurring).
The Majority’s reasoning turns this common legislative
technique into a hazardous balancing act: each example the statute
provides brings it one step closer to overbreadth. Rather than guess
all objects in the physical world.” See id. at 536, 135 S. Ct. at 1081;id.
at 549–
51, 135 S. Ct. at 1089 (Alito, J., concurring). The lesson from this and similar
cases is that we should err on the side of interpreting statutes narrowly, rather
than more broadly, based on the statutory context. See also Fischer, 603 U.S. at
488, 144 S. Ct. at 2184 (“The idea is simply that a general phrase can be given
a more focused meaning by the terms linked to it.”).
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24 TJOFLAT, J., Dissenting 23-12160
at what a court might find acceptable, a legislature might prefer the
safer route of omitting examples altogether. Indeed, that may very
well happen here: if this Court ultimately holds that § 827.11 is un-
constitutional, Florida’s legislature could redraft or amend the stat-
ute. This time, it might define an “adult live performance” purely
by reference to “lewd conduct,” omitting all the other terms that,
according to the Majority, deprived that phrase of any permissible
meaning. Could the Majority object to that? Not if it is being faith-
ful to Miller and its progeny. But what would that accomplish?
Nothing. The statute would be less specific yet perfectly constitu-
tional when construed in light of Miller. This sort of fruitless exer-
cise shows why our interpretive canons often err on the side of ju-
dicial restraint: we are not legislators, and our meddling in legisla-
tion risks undesirable results.
Simply put, the question before us is not whether § 827.11 is
stylishly and elegantly written. The question is whether the statute
violates the Constitution, and our review requires us to engage
with the statutory text, as written, in good faith and with the pre-
sumption that the legislature did not intend to infringe on consti-
tutional rights. By applying the aforementioned principles and
reading the statute harmoniously, we can and should conclude that
the statute reaches only speech that would be considered obscene
under Miller. I would follow the lead of the Supreme Court in Ham-
ling and interpret “lewd conduct” as “limited to the sort of patently
offensive representations or descriptions of that specific hard core
sexual conduct given as examples in Miller.” See Hamling, 418 U.S.
at 114, 94 S. Ct. at 2906 (cleaned up).
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23-12160 TJOFLAT, J., Dissenting 25
5. Federalism, Certification, and Comity
There is a more fundamental problem with the Majority’s
decision today: even if every member of this Court were satisfied
that the Majority has read the statute perfectly, we would still not
have the final say on what § 827.11 actually means. Even the United
States Supreme Court lacks that authority. See Gooding v. Wilson,
405 U.S. 518, 520,92 S. Ct. 1103, 1005
(1972). The power to con-
strue state statutes in our federalist system belongs to the state
courts—in this case, the Supreme Court of Florida. So, despite the
Majority’s overbreadth ruling, state courts may still offer a narrow-
ing construction, rendering this whole exercise futile. See Younger v.
Harris, 401 U.S. 37, 50,91 S. Ct. 746, 753
(1971).
Of course, if we had no other option but to invalidate the
statute now and let the state courts cure it later, the Majority’s de-
cision might seem more reasonable. But that is not the case. For
decades, in the interests of comity, federal courts have exercised
two related doctrines—Pullman abstention and certification—
when our cases have called for the resolution of state-law ques-
tions. See R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496,61 S. Ct. 643
(1941); Arizonans for Off. Eng. v. Arizona,520 U.S. 43
,117 S. Ct. 1055
(1997). By allowing state courts to rule first on matters of state
law, these doctrines can “avoid the waste of a tentative decision as
well as the friction of a premature constitutional adjudication.”
Pullman, 312 U.S. at 500,61 S. Ct. at 645
.
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26 TJOFLAT, J., Dissenting 23-12160
a. Pullman Abstention
In Pullman, the Texas Railroad Commission issued a regula-
tion requiring that all sleeper cars on trains be supervised by a con-
ductor. Id.at 497–98,61 S. Ct. at 644
. The Pullman Company sued
in federal court, arguing that the regulation was “unauthorized by
Texas law as well as violative of the Equal Protection, the Due Pro-
cess and the Commerce Clauses of the Constitution.” Id. Pullman
porters—lower-level employees who were predominantly Black,
unlike Pullman conductors—intervened as complainants and al-
leged that the regulation discriminated against them in violation of
the Fourteenth Amendment. Id.
The Supreme Court acknowledged the “substantial consti-
tutional issue” raised by the porters, but it observed that the issue
could “be avoided if a definitive ruling on the state issue would ter-
minate the controversy.” Id. That is, if the Texas Railroad Commis-
sion lacked the statutory authority to issue the regulation, then the
regulation would fail without the need to consider its constitu-
tional implications. See id.at 498–99,61 S. Ct. at 644
. And the three-
judge panel below had, in fact, concluded that the Commission had
exceeded its authority. Id. The only problem, as the Supreme Court
observed, was that federal courts lacked the final say on the matter:
Had we or they no choice in the matter but to decide
what is the law of the state, we should hesitate long
before rejecting their forecast of Texas law. But no
matter how seasoned the judgment of the district
court may be, it cannot escape being a forecast rather
than a determination. The last word on the meaning
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23-12160 TJOFLAT, J., Dissenting 27
of . . . the Texas Civil Statutes, and therefore the last
word on the statutory authority of the Railroad Com-
mission in this case, belongs neither to us nor to the
district court but to the supreme court of Texas.
Id. at 499–500, 61 S. Ct. at 644–45.
The Court reasoned that the district court’s holding might
ultimately be displaced by a state court ruling, resulting in a prem-
ature waste of judicial resources. Id. Therefore, after reviewing
“[t]he history of equity jurisdiction,” the Court articulated an ab-
stention doctrine “whereby the federal courts, exercising a wise dis-
cretion, restrain their authority because of scrupulous regard for
the rightful independence of the state governments and for the
smooth working of the federal judiciary.” Id.at 500–01,61 S. Ct. at 645
(citations and internal quotation marks omitted). Concluding,
the Court remanded for the district court to “stay[] its hands” while
the Texas state-law issue was litigated in state court. Id. at 501–02,
61 S. Ct. at 645–46.
b. Certified Questions
In the decades since Pullman, states have increasingly al-
lowed federal courts to certify questions of state law directly to
state courts, rather than requiring litigants to bring parallel state
actions. This practice of certification is now preferred to Pullman
abstention, which “proved protracted and expensive in practice, for
it entailed a full round of litigation in the state court system before
any resumption of proceedings in federal court.” Arizonans for Off.
Eng., 520 U.S. at 76,117 S. Ct. at 1073
. “Certification procedure, in
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28 TJOFLAT, J., Dissenting 23-12160
contrast, allows a federal court faced with a novel state-law ques-
tion to put the question directly to the State’s highest court, reduc-
ing the delay, cutting the cost, and increasing the assurance of gain-
ing an authoritative response.” Id.
In Arizonans for Official English, the Supreme Court consid-
ered a challenge, brought in federal court under the First and Four-
teenth Amendments, to a 1988 amendment to Arizona’s Constitu-
tion that declared English “the official language of the State of Ari-
zona” and “the language of . . . all government functions and ac-
tions.” Id. at 48–50, 117 S. Ct. at 1059–61 (alteration in original).
The Court noted that the federal litigants, “proceeding without
benefit of the views of the Arizona Supreme Court, expressed di-
verse opinions on the meaning of the amendment.” Id. The plain-
tiff, an Arizona employee who handled medical malpractice claims
against the state, feared that she could be fired or punished for us-
ing Spanish in communications with the public. Id. An official opin-
ion by Arizona’s Attorney General, meanwhile, concluded “that
government employees remained free to use other [non-English]
languages ‘to facilitate the delivery of governmental services.’” Id.
at 51–52, 117 S. Ct. at 1061.
The district court considered the Arizona Attorney Gen-
eral’s opinion but found it to be “simply at odds with [the amend-
ment’s] plain language.” Id.at 54–55,117 S. Ct. at 1062
. The court
interpreted the amendment as “impos[ing] a sweeping ban on the
use of any language other than English by all of Arizona official-
dom, with only limited exceptions.” Id. It believed that the text of
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23-12160 TJOFLAT, J., Dissenting 29
the amendment, codified at Arizona Constitution Article XXVIII,
“left no room for a moderate and restrained interpretation,” and so
the court “decline[d] ‘to allow the Arizona courts the initial oppor-
tunity to determine the scope of Article XXVIII.’” Id. at 55,117 S. Ct. at 1063
. Therefore, the court concluded that Article XXVIII was
fatally overbroad under the First and Fourteenth Amendments. Id.
On appeal, a Ninth Circuit panel affirmed. Id. at 61,117 S. Ct. at 1066
. The court then reheard the case en banc and, by a six-
to-five vote, upheld the panel’s opinion. Id. at 62,117 S. Ct. at 1066
.
The en banc court interpreted the amendment as generally prohib-
iting “the use of any language other than English by all officers and
employees of all political subdivisions in Arizona while performing
their official duties.” Id. (internal quotation marks omitted). “Be-
cause the court found the ‘plain language’ dispositive, it rejected
the State Attorney General’s limiting construction and declined to
certify the matter to the Arizona Supreme Court.” Id. (citations
omitted). The court again “condemned the provision as manifestly
overbroad.” Id. at 63,117 S. Ct. at 1067
.
In its opinion vacating the Ninth Circuit’s judgment, the Su-
preme Court began by noting that “[f]ederal courts lack compe-
tence to rule definitively on the meaning of state legislation.” Id. at
48,117 S. Ct. at 1059
. It observed that the Ninth Circuit had “lost
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30 TJOFLAT, J., Dissenting 23-12160
sight of” this fact, as well as Article III standing limitations. 6 Id. The
Court reiterated,
In litigation generally, and in constitutional litigation
most prominently, courts in the United States charac-
teristically pause to ask: Is this conflict really neces-
sary? When anticipatory relief is sought in federal
court against a state statute, respect for the place of
6 The case also involved some uncertainty about the standing of various par-
ties to litigate the dispute on appeal. Although the district court held that Ar-
ticle XXVIII was unconstitutional, it denied the plaintiff’s request for an injunc-
tion because “she ha[d] not established an enforcement threat sufficient to
warrant [such] relief.” Arizonans for Off. Eng., 520 U.S. at 55,117 S. Ct. at 1063
.
After judgment, two parties, the Arizonans for Official English Committee
(“AOE”) and its chairman, moved to intervene as defendants under Federal
Rule of Civil Procedure 24. Id. at 56,117 S. Ct. at 1063
. As proponents of the
amendment, they wanted to defend its constitutionality on appeal. Id. Mean-
while, the original plaintiff, Maria-Kelly Yniguez, expressed reluctance about
any further appeal, believing that she had effectively won the suit and needed
no other relief. Id. The district court denied the intervention motion for lack
of standing, but the Ninth Circuit disagreed. Id. at 57,117 S. Ct. at 1064
. It held
that “AOE, as principal sponsor of the ballot initiative, qualified to defend Ar-
ticle XXVIII on appeal.” Id. at 58,117 S. Ct. at 1064
. And it held that the case
was not moot, even though Yniguez resigned from state employment during
the appeal, because she may be entitled to nominal damages. Id.at 59–60,117 S. Ct. at 1065
. On certiorari review, the Supreme Court expressed “grave
doubts” about whether AOE had standing to appeal. Id. at 66,117 S. Ct. at 1068
. And the Court viewed Yniguez’s case as having been mooted by her res-
ignation. Id. at 72,117 S. Ct. at 1071
. Although the mooting event occurred
after the district court’s judgment, the complex posture of the case—“and the
federalism concern [the Court] next consider[ed]”—led it to “conclude that
vacatur down the line” was appropriate. Id.at 74–75,117 S. Ct. at 1072
.
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23-12160 TJOFLAT, J., Dissenting 31
the States in our federal system calls for close consid-
eration of that core question.
Id. at 75, 117 S. Ct. at 1072–73 (footnote omitted).
The Court noted that Arizona’s Attorney General had asked
both lower courts to pause the litigation and certify a question to
the Arizona Supreme Court. Id. It observed that, “[t]hrough certi-
fication of novel or unsettled questions of state law for authorita-
tive answers by a State’s highest court, a federal court may save
‘time, energy, and resources and hel[p] build a cooperative judicial
federalism.’” Id. at 77,117 S. Ct. at 1073
(quoting Lehman Bros. v.
Schein, 416 U.S. 386, 391,94 S. Ct. 1741, 1744
(1974)). And it criti-
cized the lower courts for their overconfidence in concluding that
the amendment “was not fairly subject to a limiting construction.”
Id. at 77, 117 S. Ct. at 1074.
The Court explained that “[f]ederal courts, when confront-
ing a challenge to the constitutionality of a federal statute, follow a
‘cardinal principle’: They ‘will first ascertain whether a construc-
tion . . . is fairly possible’ that will contain the statute within consti-
tutional bounds.” Id. at 78,117 S. Ct. at 1074
(quoting Ashwander v.
Tennessee Valley Auth., 297 U.S. 288, 348,56 S. Ct. 466
, 483–84 (1936)
(Brandeis, J., concurring)). The Court noted that “[s]tate courts,
when interpreting state statutes, are similarly equipped to apply
that cardinal principle.” Id. And it added that certification is partic-
ularly appropriate when state courts have yet to interpret a new
statute:
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32 TJOFLAT, J., Dissenting 23-12160
Warnings against premature adjudication of constitu-
tional questions bear heightened attention when a
federal court is asked to invalidate a State’s law, for
the federal tribunal risks friction-generating error
when it endeavors to construe a novel state Act not
yet reviewed by the State’s highest court. “Specula-
tion by a federal court about the meaning of a state
statute in the absence of prior state court adjudication
is particularly gratuitous when . . . the state courts
stand willing to address questions of state law on cer-
tification from a federal court.”
Id. at 79, 117 S. Ct. at 1076 (citations omitted) (quoting Brockett v.
Spokane Arcades, Inc., 472 U.S. 491, 510,105 S. Ct. 2794, 2805
(1985)
(O’Connor, J., concurring)).
Relevant here, Florida has long authorized its courts to re-
ceive state-law questions from our federal courts. See Fla. Stat.
§ 25.031; see also Clay v. Sun Ins. Off. Ltd.,363 U.S. 207, 212
,80 S. Ct. 1222, 1226
(1960) (praising the “rare foresight” of Florida legislators
in providing for certification). The Florida Rules of Appellate Pro-
cedure allow a federal appellate court to “certify 1 or more ques-
tions of law to the Supreme Court of Florida if the answer is deter-
minative of the cause and there is no controlling precedent of the
Supreme Court of Florida.” Fla. R. App. P. 9.150(a).
Just recently, this Court certified a question to the Supreme
Court of Florida in another case challenging a statute for vagueness
and overbreadth. See Dream Defs. v. Governor of Fla., 119 F.4th 872
(11th Cir. 2024). In Dream Defenders, just as here, the district court
entered a preliminary injunction because a Florida statute
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23-12160 TJOFLAT, J., Dissenting 33
“criminaliz[ed] constitutionally protected First Amendment activ-
ity.” Id. at 874. On appeal, “we certified a question to the Supreme
Court of Florida asking it to provide an authoritative interpretation
of [the law,] Florida’s amended criminal riot statute, Fla. Stat.
§ 870.01(2) (2021).”Id.
We explained that:
Certification in this circumstance allows us to avoid
the friction that could arise if we, as a federal court,
addressed the merits of the plaintiffs’ pre-enforce-
ment constitutional challenge without first giving the
Florida Supreme Court an opportunity to interpret its
State’s law. See Arizonans for Off. Eng., 520 U.S. at 75,
117 S. Ct. 1055. As we have explained, certification
“give[s] the highest court of a state an opportunity to
... attempt to interpret [state law] in such a way as to
make it constitutional.” Pittman v. Cole, 267 F.3d 1269,
1289–90 (11th Cir. 2001) (internal quotation marks
omitted). Providing this opportunity is “especially im-
portant, because it may well be that the courts of the
relevant state are less constrained than is the federal
judiciary with respect to statutory interpretation.” Id.
at 1290 (alteration adopted) (internal quotation marks
omitted). We conclude that certification is consistent
with “respect for the place of the States in our federal
system.”
Dream Defs. v. Governor of the State of Fla., 57 F.4th 879, 893–94 (11th
Cir. 2023), certified question answered sub nom. DeSantis v. Dream
Defs., 389 So. 3d 413 (Fla. 2024).
Indeed, the Supreme Court of Florida’s interpretation of the
statute ultimately resolved the case, obviating the need for us to
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34 TJOFLAT, J., Dissenting 23-12160
strike it down on constitutional grounds. Dream Defs., 119 F.4th at
872. That is what the Majority should have done here. Instead, the
Majority sidesteps the very tools our system provides—tools de-
signed to respect state authority, foster comity, and avoid unneces-
sary constitutional rulings. By casting aside those safeguards, to-
day’s decision stretches this Court beyond its proper role and de-
parts from the humility and restraint that federal courts owe when
state law is in question.
Still, the Majority responds that “neither party requested or
briefed the idea of certifying questions to the Florida Supreme
Court.” Maj. Op. at 47. That assertion is as irrelevant as it is reveal-
ing. Florida Rule of Appellate Procedure 9.150 says that “On either
its own motion or that of a party . . . a United States court of appeals
may certify one or more questions of law to the Supreme Court of
Florida.” Fla. R. App. P. 9.150(a) (emphasis added). The rule en-
trusts the decision to us—not just to the litigants. And we have rec-
ognized time and again that certification is not a procedural cour-
tesy owed to the parties; it is a structural duty owed to our state
counterparts when state law is unsettled and constitutional adjudi-
cation looms. See, e.g., Dream Defs., 57 F.4th at 893 (quoting Am.
Booksellers Ass’n, 484 U.S. at 393, 108 S. Ct. at 643) (internal quota-
tion marks omitted).
By brushing aside certification simply because the parties did
not ask for it, the Majority discards our obligation to exercise re-
straint, respect federalism, and avoid unnecessarily resolving con-
stitutional questions. It implies that comity and judicial humility
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23-12160 TJOFLAT, J., Dissenting 35
are optional—and only if the parties remember to request them.
That has never been the law. And it is no answer to say the parties
were silent when it is this Court’s responsibility to avoid needless
constitutional adjudication when a narrowing construction by the
state’s highest court may well resolve the dispute.
IV. The Age-Variable Standard
The Majority’s second basis for facial invalidation is its dis-
comfort with the statute’s so-called “age-variable” obscenity stand-
ard. According to the Majority, Florida’s law is both vague and
overbroad because it requires courts to evaluate obscenity in light
of a child’s age, rather than imposing a fixed cutoff. But that objec-
tion misunderstands both the statute and the governing constitu-
tional standards.
Properly framed, the Majority’s concern is that the law lacks
clarity: that it requires speakers and courts to guess whether mate-
rial suitable for a fifteen-year-old would offend a twelve-year-old.
In its view, that uncertainty chills protected expression and invites
arbitrary enforcement. But that framing demands a precision the
First Amendment has never required, especially in the context of
obscenity.
A. Vagueness and Line Drawing
A statute is unconstitutionally vague if it “fails to provide
people of ordinary intelligence a reasonable opportunity to under-
stand what conduct it prohibits” or “authorizes or even encourages
arbitrary and discriminatory enforcement.” Hill v. Colorado, 530
U.S. 703, 732,120 S. Ct. 2480, 2498
(2000) (citation omitted). That
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36 TJOFLAT, J., Dissenting 23-12160
inquiry is especially demanding when a law restricts speech, be-
cause vagueness risks chilling protected expression. See Reno v.
ACLU, 521 U.S. 844, 871–72,117 S. Ct. 2329
, 2344–45 (1997). But
the test is not whether every term is defined with mathematical
precision. “[P]erfect clarity and precise guidance have never been
required even of regulations that restrict expressive activity.” Ward
v. Rock Against Racism, 491 U.S. 781, 794,109 S. Ct. 2746, 2755
(1989) (citation omitted).
That principle governs Miller itself. The Miller test asks
whether a work appeals to the prurient interest, whether it is pa-
tently offensive, and whether it lacks serious literary, artistic, polit-
ical, or scientific value—all judged by contemporary community
standards. Miller, 413 U.S. at 24, 93 S. Ct. at 2614–15. None of those
terms is self-defining. Each requires judgment informed by context.
Miller did not impose mathematical lines. It offered a framework
that invites discretion, not rigidity.
That is equally true when the audience includes minors. In-
deed, Miller cited Ginsberg v. New York with approval. See id. at 19,
27, 93 S. Ct. 2612, 2617. In Ginsberg, the Court upheld a statute pro-
hibiting the sale of sexually explicit magazines to minors under the
age of seventeen, even though the material in question would not
have been obscene for adults. Ginsberg, 390 U.S. at 642, 88 S. Ct. at
1282. The Court explained that legislatures could “adjus[t] the def-
inition of obscenity to social realities by permitting the appeal of
this type of material to be assessed in term of the sexual interests .
. . of . . . minors.” Id. at 638, 88 S. Ct. at 1279 (citations and internal
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23-12160 TJOFLAT, J., Dissenting 37
quotation marks omitted). In other words, the Court specifically
condoned what it called “variable obscenity.” See id. at 635, 88 S.
Ct. at 1278 n.4.
That doctrine has persisted. In Erznoznik v. City of Jackson-
ville, the Court reaffirmed that “[i]t is well settled that a State or
municipality can adopt more stringent controls on communicative
materials available to youths than on those available to adults.” 422
U.S. 205, 212,95 S. Ct. 2268, 2274
(1975) (citing Ginsberg,390 U.S. 629
,88 S. Ct. 1274
). And in New York v. Ferber, the Court again em-
phasized that “[i]t is evident beyond the need for elaboration that a
State’s interest in safeguarding the physical and psychological well-
being of a minor is compelling.” 458 U.S. 747, 756,102 S. Ct. 3348, 3355
(1982) (citation and internal quotation marks omitted). The
same point appeared in F.C.C. v. Pacifica Foundation, where the
Court cited Ginsberg to confirm that the government may restrict
speech that is appropriate for adults but harmful to children. 438
U.S. 726, 749–50,98 S. Ct. 3026
, 3040–41.
In sum, the Supreme Court has long recognized that obscen-
ity standards may vary based on the age of the audience. The Ma-
jority resists that principle not by denying it, but by insisting that
Florida’s law lacks a fixed age cutoff. That resistance is not
grounded in constitutional doctrine.
To its credit, the Majority concedes that “the distinction be-
tween seventeen and eighteen . . . is not inherently less arbitrary or
less vague than the distinction between any other two ages.” Maj.
Op. at 67. But it insists that the “much of our law and culture are
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38 TJOFLAT, J., Dissenting 23-12160
oriented around the singular age of majority.” Id. According to the
Majority, “[t]his rich social context gives meaning and relative clar-
ity to the line between that which is within minors’ rights to access
and that which is ‘adults-only.’” Id. That is not a constitutional
standard.
The true objection is not to vagueness—it is to flexibility.
The Majority worries that tailoring the obscenity test to a child’s
age introduces too much discretion. But every obscenity statute
calls for judgment at the margins. “[T]he mere fact that close cases
can be envisioned [does not] rende[r] a statute vague.” United States
v. Williams, 553 U.S. 285, 305–06,128 S. Ct. 1830, 1846
(2008). 7 And
Miller itself requires case-by-case context: prurient appeal, patent
offensiveness, and value, all gauged by contemporary community
standards. That framework demands reasoned application, not
rigid rules.
In the end, the Majority sees vagueness where precedent
sees discretion. It imagines a constitutional flaw that doctrine does
not support—and manufactures a rule that no court has ever im-
posed.
7 Williams was a case from the Eleventh Circuit. See United States v. Williams,
444 F.3d 1286 (11th Cir. 2008). The full quote from the Supreme Court was an
admonishment to our Circuit: “[T]he Eleventh Circuit’s error is more funda-
mental than merely its selection of unproblematic hypotheticals. Its basic mis-
take lies in the belief that the mere fact that close cases can be envisioned ren-
ders a statute vague. That is not so. Close cases can be imagined under virtu-
ally any statute.” Williams, 553 U.S. at 305–06, 128 S. Ct. at 1846.
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23-12160 TJOFLAT, J., Dissenting 39
B. The Statute’s Guideposts
Even if the Majority were right to worry about vagueness in
the abstract, that concern cannot survive contact with the statute’s
safeguards. Florida has not invited arbitrary enforcement. It has
structured discretion through familiar legal guideposts.
First, the statute does not impose strict liability. A person vi-
olates the statute only if he “knowingly admit[s] a child to an adult
live performance.” Fla. Stat. § 827.11(3). And “knowingly” is de-
fined to require “general knowledge of, reason to know, or a belief
or ground for belief which warrants further inspection or inquiry”
into both the nature of the performance and the child’s age. Id. §
827.11(1)(b). That definition incorporates a culpable mental state
and protects those who act reasonably and in good faith.
Indeed, the statute’s requirements mirrors that of the statute
in Ginsberg. As the Supreme Court there said, “[t]he constitutional
requirement of scienter, in the sense of knowledge of the contents
of material, rests on the necessity to avoid the hazard of self-cen-
sorship of constitutionally protected material and to compensate for
the ambiguities inherent in the definition of obscenity.” Ginsberg, 390
U.S. at 644,88 S. Ct. at 1283
(internal quotation marks omitted)
(emphasis added). So too here.
Second, the definition of “adult live performance” is teth-
ered directly to the Miller framework. A covered performance must
appeal to a prurient interest, be patently offensive to prevailing
standards, and lack serious value—all “for the age of the child pre-
sent.” Id. § 827.11(1)(a). These are familiar, judicially tested
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40 TJOFLAT, J., Dissenting 23-12160
standards that apply across federal and state obscenity laws. And
they apply here with a single adjustment: they are measured in
light of the actual child admitted—not an abstract viewer or gener-
alized audience.
Third, the statute requires that the performance be judged
“as a whole,” and applies only if all three elements of Miller are met.
Id. That structure constrains enforcement to performances that sat-
isfy the constitutional definition of obscenity for the age group in
question.
The Majority finds none of this sufficient. But its preferred
alternative—a rigid age threshold—would not resolve the uncer-
tainty it identifies. It would merely relocate it to a different point
on the spectrum, imposing a fixed line that lacks any constitutional
foundation and would likely chill more speech than it protects.
C. Certification and Constitutional Avoidance
Even if the Florida statute presented some ambiguity, that
ambiguity concerns the meaning of a state-law term. And as dis-
cussed above, the proper course in such cases certification to the
state courts. That is especially true here, where Florida’s judiciary
stands ready to clarify the statute’s scope and application.
The Majority’s own opinion illustrates the need for that ap-
proach in relation to the variable age standard. The Majority poses
a series of rhetorical questions: Whether speakers must tailor their
message “year-by-year, . . . month-by-month, . . . week-by-week, .
. . or day-by-day,” see Maj. Op. at 64, or how “[a proprietor is] to
determine with confidence that a child is old enough to attend [a
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23-12160 TJOFLAT, J., Dissenting 41
show,]” see Maj. Op. at 68. These are precisely the types of ques-
tions state courts are best positioned to resolve. But it appears the
Majority instead deployed these hypotheticals not to clarify the
law, but to manufacture constitutional error. That move disregards
well-established tools of restraint. When state law is reasonably
susceptible to a narrowing construction, federal courts must allow
the state’s judiciary to supply it. Certification, not invalidation, was
the correct response.
V. Scope of the Injunction
Even if the Majority were correct on the merits (it is not), it
still errs in upholding the scope of the District Court’s injunction.
Less than a year ago, the Supreme Court admonished this Court
that “[e]ven in the First Amendment context, facial challenges are
disfavored, and neither parties nor courts can disregard the requi-
site inquiry into how a law works in all of its applications.” Moody,
603 U.S. at 744, 144 S. Ct. at 2409. Our opinion was reversed be-
cause, in the words of Justice Jackson, “The Eleventh Circuit failed
to appreciate the nature of this [facial] challenge.” Id. at 748, 144 S.
Ct. at 2411 (Jackson, J., concurring). That instruction could hardly
have been clearer. Yet today, the Majority sidesteps it. 8
As Moody explains, facial challenges carry a notoriously
heavy burden. To succeed, the plaintiff must show that “a
8 Judge Brasher has already flagged these concerns—albeit without the benefit
of Moody, which now makes the point unmistakable. See HM Florida-Orl, 2023
WL 6785071, at *4–6 (Brasher, J., dissenting from the order denying motion
for a partial stay).
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42 TJOFLAT, J., Dissenting 23-12160
substantial number of [the law’s] applications are unconstitutional,
judged in relation to the statute’s plainly legitimate sweep.” Id. at
723, 144 S. Ct. at 2398 (quoting Americans for Prosperity Found., 594
U.S. at 615, 141 S. Ct. at 2387 (internal quotation marks omitted)).
A court must first determine what the law regulates: “What activi-
ties, by what actors, do the laws prohibit or otherwise regulate?”
Id. at 724, 144 S. Ct. at 2398. Then the court must identify the law’s
“full range of applications—the constitutionally impermissible and
permissible both—and compare the two sets.” Id. at 726, 144 S. Ct.
at 2398. Only if the unconstitutional applications are both substan-
tial and disproportionate may the court preclude enforcement of
the law on its face. Id. at 743–44, 144 S. Ct. at 2408–09.
The Moody framework reflects the judiciary’s structural lim-
its. Facial invalidation is “strong medicine” because it risks sweep-
ing away constitutionally valid applications not before the court.
See Williams, 533 U.S. at 293,128 S. Ct. at 1838
(citations and inter-
nal quotation marks omitted). As Justice Alito explained,
[Facial] challenges are strongly disfavored. See Wash-
ington State Grange, 552 U. S., at 452. They often raise
the risk of “‘premature interpretation[n] of statutes’
on the basis of factually barebones records.” Sabri v.
United States, 541 U. S. 600, 609 (2004). They clash
with the principle that courts should neither “‘antici-
pate a question of constitutional law in advance of the
necessity of deciding it’” nor “‘formulate a rule of con-
stitutional law broader than is required by the precise
facts to which it is to be applied.’” Ashwander v. TVA,
297 U. S. 288, 346–347 (1936) (Brandeis, J.,
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23-12160 TJOFLAT, J., Dissenting 43
concurring). And they “threaten to short circuit the
democratic process by preventing laws embodying
the will of the people from being implemented in a
manner consistent with the Constitution.” Washing-
ton State Grange, 552 U. S., at 451.
Facial challenges also strain the limits of the federal
courts’ constitutional authority to decide only actual
“Cases” and “Controversies.” Art. III, §2. “[L]itigants
typically lack standing to assert the constitutional
rights of third parties.” United States v. Hansen, 599 U.
S. 762, 769 (2023). But when a court holds that a law
cannot be enforced against anyone under any circum-
stances, it effectively grants relief with respect to un-
known parties in disputes that have not yet material-
ized.
For these reasons, we have insisted that parties
mounting facial attacks satisfy demanding require-
ments
Moody, 603 U.S. at 777–78, 144 S. Ct. at 2428–29 (Alito, J., concur-
ring in the judgment).
In other words, courts always favor as-applied relief, not
across-the-board invalidation. See, e.g., id. at 744, 144 S. Ct. at 2409
(“Even in the First Amendment context, facial challenges are disfa-
vored.”). Our own Circuit decisions express the same sentiment.
Just last month we applied Moody to highlight that facial challenges
are “a demanding standard, and for good reason.” See Henry v. Sher-
iff of Tuscaloosa Cnty., Alabama, No. 24-10139, 2025 WL 1177671, at
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44 TJOFLAT, J., Dissenting 23-12160
*43 (11th Cir. Apr. 23, 2025) (per curiam). We recognized that “the
Supreme Court has made facial challenges hard to win.” Id.
The District Court here skipped the entire facial challenge
analysis. It declared the statute unconstitutional as to Hamburger
Mary’s and later said that it thought “the injunction necessarily must
extend to protect all Floridians.” See HM Florida-ORL, 2023 WL
11257409, at *4 (emphasis added). In doing so, the District Court
ignored the presumption against facial relief. Rather than examine
the statute’s full scope or its various permissible applications, the
Court focused narrowly on drag performances and raised a singular
concern:
[T]he Act’s focus on “prosthetic or imitation genitals
or breasts” raises a host of other concerns not simply
answered—what are the implications for cancer sur-
vivors with prosthetic genitals or breasts?
HM Florida-ORL, 679 F. Supp. 3d at 1344.
That was the full extent of the District Court’s analysis of the law’s
“full range of applications—the constitutionally impermissible and
permissible.” See Moody, 603 U.S. at 726, 144 S. Ct. at 2398. Needless
to say, under Moody that is nowhere near enough.
The Majority compounds this error. It does not map the stat-
ute’s reach. It does not weigh how many of its applications are con-
stitutional. It does not explain why narrower, as-applied relief
would fall short. Instead, it affirms a sweeping, statewide invalida-
tion—the exact shortcut Moody forbids.
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23-12160 TJOFLAT, J., Dissenting 45
Indeed, the Majority concedes that it has not assessed the
statute’s permissible scope, insisting that the law is too vague and
overbroad to map fully. But that is no excuse—it is the very reason
Moody’s inquiry is required. Courts cannot strike down a law on its
face without first attempting to determine how it operates in prac-
tice. 9 If the statute truly fails that test, the constitutional defect must
emerge through the process Moody mandates—not in place of it.
To skip that analysis because the law might be vague in some ap-
plications flips the burden and invites the very kind of premature
invalidation Moody prohibits.
To be sure, the District Court fashioned its injunction before
Moody was decided. But this Court did not. Moody is now binding,
and its framework is not optional. At a minimum, we should re-
mand this case with instructions to apply Moody’s framework: ex-
amine the law’s full set of applications, assess which are constitu-
tional and which are not, and determine whether the
9 Dealing with a facial challenge under Moody in this context “strikes me as a
daunting, if not impossible, task.” See Moody, 603 U.S. at 745, 144 S. Ct. at 2409
(Barrett, J., concurring). It “likely forces [the] court to bite off more than it can
chew,” having to dream up all applications of a law. See id. at 747, 144 S. Ct. at
2411. But that is a feature, not a bug. As I have explained, “facial challenges are
[strongly] disfavored.” See id. at 744, 144 S. Ct. at 2409. Requiring courts to
examine every imaginable application—many of them involving parties not
before the court—ensures that we do not strike down statutes merely because
they might be problematic in a few hypothetical scenarios. That makes uni-
versal invalidation hard—painfully hard—because it bears repeating that the
judiciary’s role is to decide “Cases” and “Controversies,” not to serve as a rov-
ing constitutional council.
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46 TJOFLAT, J., Dissenting 23-12160
unconstitutional ones are sufficiently substantial to justify facial re-
lief. Anything less ignores what the Supreme Court and Article III
require.
VI. Conclusion
The judicial power carries limits. We must read statutes nar-
rowly, not manufacture conflict. We must respect the balance be-
tween state and federal authority. And we must confine our role to
deciding the dispute before us, not pronouncing broad constitu-
tional rules unnecessarily.
Today, the Majority disregards those limits. It passes over
the tools meant to harmonize state and federal law, overlooks the
state courts’ interpretive role, and leaps to constitutional invalida-
tion prematurely. That overreach upends the careful balance our
system preserves—and takes this Court beyond the authority Arti-
cle III grants.
I respectfully dissent.
Reference
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