ATLANTA (CN) - The Sunshine State's interest in banning minors from attending "adult live performances" like drag shows was again weighed on Tuesday against the First Amendment rights of children and businesses, this time before the full bench of the 11th Circuit.

While Florida has characterized its Protection of Children Act as a "modest restriction on children's access to sexually explicit performances," Hamburger Mary's Restaurant and Bar - an Orlando business known for hosting family-friendly drag shows - says the law's structure is "intended to hang a sword of Damocles over anyone in Florida doing a drag show."

The 13 judges of the Atlanta-based appeals court appeared skeptical of arguments from both sides during the hour-long hearing. The judges took turns questioning the clarity of the law's language, the meaning of the term "lewd," the practicalities of enforcement and the restaurant's standing to sue the state.

The arguments led U.S. Circuit Judge Nancy Abudu, a Joe Biden appointee, to ask: "Is [the law] vague or is it equating a drag show with obscenity in and of itself?"

Attorney Melissa Stewart of Sauder Schelkopf, who represents Hamburger Mary's, said the law "criminalizes disfavored speech" and features undefined terms and age-variable standards that "leave would-be speakers to guess at what the law prohibits."

The law's definition of an "adult live performance" includes shows in front of a live audience depicting or simulating "nudity, sexual conduct, sexual excitement or specific sexual activities" and "lewd conduct or the lewd exposure of prosthetic or imitation genitals or breasts," which would be considered obscene "for the age of the child present."

Stewart argued the law's vagueness on what constitutes lewdness has forced her client to cancel its family-friendly drag brunch shows and make all performances 18-and-up. Hamburger Mary's also hired private security at its own expense and started carding at the door, the attorney said.

"The structure suggests that the intent is to chill speech by making compliance as murky as possible," Stewart said. "Hamburger Mary's can make every show 18+, it can make every show G-rated, it can card every single person at the door and it still can't be sure that it's complying with this law, because the law gives no guidance on what lewd conduct is."

Although a three-judge panel of the appeals court last year upheld a Florida federal judge's injunction barring enforcement of the law, a majority of 11th Circuit judges voted to vacate that decision in December.

The initial ruling by U.S. District Judge Gregory Presnell to block the act came after Hamburger Mary's sued Florida Department of Business and Professional Regulation secretary Melanie Griffin.

The restaurant has argued that the law - which authorizes the department to impose fines and suspend or revoke operating and liquor licenses of businesses that knowingly admit children to impermissible performances - violates the free speech clause of the First Amendment. The law also allows for misdemeanor prosecutions.

The vacated panel opinion specifically objected to the state's inability to define what kind of conduct is and is not appropriate for minors. The divided panel found the law deployed the terms "lewd conduct" and "lewd exposure" too broadly, taking an "'I know it when I see it' approach to regulating expression," U.S. Circuit Judge Robin Rosenbaum wrote on behalf of the majority.

The Barack Obama appointee raised the same concerns Tuesday, questioning how the state could define what is obscene for what age.

Rosenbaum said the decision to block a 17-year-old from hearing speech which might be obscene for a younger child could be a violation of the older child's First Amendment rights.

"How do you make the judgment with respect to one year versus another year?" Rosenbaum asked. "Can you give us guidance on that? Because... you're expecting everybody to be able to draw this line."

Florida solicitor general David Dewhirst struggled to tell the en banc panel how to define what might be obscene for a 14-year-old but not a 15-year-old.

Pointing to the U.S. Supreme Court's 1973 decision in Miller v. California and its establishment of a legal test to determine standards for obscenity, Dewhirst said the uncertainty Rosenbaum highlighted has been "well established" by the high court as "just fine."

Stewart argued the ambiguities in the law's language combined with a fear of stiff penalties has caused her client to self-censor.

But Dewhirst said Hamburger Mary's has "plead[ed] themselves out" of any claim that its speech has been chilled by admitting it already excludes children from unsuitable performances.

"They have admitted that they already do the only thing this act would require, which is exclude children from obscene acts," Dewhirst said.

U.S. Circuit Judge Kevin Newsom appeared to agree with the state that Hamburger Mary's has not had to censor itself.

"There haven't been any canceled shows," Newsom, a Donald Trump appointee, said. "They might be excluding children but the shows have gone on."

U.S. Circuit Judge Andrew Brasher, also a Trump appointee, reminded the panel that one instance in which Florida officials fined a venue for admitting children to a "sexually explicit" Christmas drag show occurred under a different law.

According to Dewhirst, the Protection of Children Act has not been enforced in the last six months.

Tuesday's en banc panel included six Trump appointees, three Obama appointees, one George W. Bush appointee, one Ford appointee and two Biden appointees. The court did not signal when it will issue a decision in the appeal.

Source: Courthouse News Service