Requiring Specificity in State Obscenity Laws: Invalidating Florida’s Age-Variable “I Know It When I See It” Statute

1. Introduction

In HM Florida-ORL, LLC v. Secretary of the Florida Department of Business and Professional Regulation, the Eleventh Circuit confronted Florida’s Protection of Children Act (Senate Bill 1438), which barred “knowingly admit[ting] a child to an adult live performance” deemed “obscene” for minors under a novel “age-variable” Miller standard. 23-12160 (11th Cir. May 13, 2025). The plaintiff (Hamburger Mary’s) operated a restaurant and bar hosting drag shows that it reasonably believed to be “family friendly.” After the Act’s enactment, the restaurant barred minors to avoid criminal and licensing sanctions, sued under 42 U.S.C. § 1983, and successfully obtained a preliminary injunction. This commentary examines the background, the Eleventh Circuit’s reasoning, and the broader First Amendment principles at stake.

2. Summary of the Judgment

The Three-Judge Panel—Judge Rosenbaum writing for the majority—affirmed the district court’s preliminary injunction barring enforcement of the Act against all Florida entities. The Court held that:

Standing: Hamburger Mary’s adequately alleged self-censorship injury and a credible threat of prosecution under the Act’s vague provisions.
Justiciability: The restaurant’s temporary closure and planned move did not moot its challenge because reopening remained likely.
Merits—Facial First Amendment Challenge: The Act was likely both overbroad—because it swept in substantial protected speech via an undefined “lewd conduct” catchall—and vague—because its age-variable obscenity test provided no workable guideposts for speakers, venues, or enforcement agencies.
Injunction Scope: A statewide injunction was appropriate to prevent continued chilling enforcement, which otherwise would undermine First Amendment protections.

3. Analysis

3.1 Precedents Cited

The Court’s opinion draws heavily on Supreme Court and Eleventh Circuit cases addressing obscenity, vagueness, overbreadth, and First Amendment standing:

Miller v. California (413 U.S. 15 (1973)): Established the three-part test for obscenity and required that “patently offensive” sexual depictions be “specifically defined” by statute or authoritative construction.
Ginsberg v. New York (390 U.S. 629 (1968)): Upheld a New York law banning sales of obscene materials to minors under 17, endorsing an “age-variable” standard for obscenity that differed from adult protections.
Jacobellis v. Ohio (378 U.S. 184 (1964)): Justice Stewart’s “I know it when I see it” concurring opinion, often quoted but never adopted as law, underscoring the danger of amorphous standards.
Reno v. ACLU (521 U.S. 844 (1997)): Struck down an internet “harmful to minors” statute for vagueness and overbreadth, emphasizing that unclear laws chill protected speech.
Broadrick v. Oklahoma (413 U.S. 601 (1973)): Defined the facial overbreadth test—only statutes whose unconstitutional applications are “substantial” relative to their valid scope may be invalidated on their face.
Moody v. NetChoice, LLC (603 U.S. 707 (2024)): Reaffirmed that First Amendment facial challenges require analysis of the full range of lawful vs. unlawful applications before invalidating a statute.
Harrell v. Florida Bar (608 F.3d 1241 (11th Cir.2010)): Recognized that self-censorship due to a law’s vagueness can establish standing in First Amendment challenges.

3.2 Legal Reasoning

The Eleventh Circuit’s opinion unfolds in four main analytical steps:

Standing: Recognizing that First Amendment claimants face a “chilling effect” dilemma, the Court applied lenient standards for pre-enforcement suits. Self-censorship—canceling “family-friendly” drag shows—was a reasonable response to a vague statute with severe penalties and a history of enforcement against similar venues. Past administrative actions and legislative statements focusing on “drag shows” supplied a credible threat of prosecution.
Mootness: Despite Hamburger Mary’s temporary closure and planned relocation, ongoing efforts to reopen and continued drag events at other venues kept the controversy alive.
Facial Merits—Overbreadth & Vagueness:
- “Lewd conduct” catchall: Although Florida’s Chapters 847 and 827 provide painstakingly detailed definitions of “nudity,” “sexual conduct,” etc., a vague, undefined “lewd conduct” term swallows non-obscene yet “lewd” expression (e.g., tamer drag performances). Miller requires “specifically defined” statutory prohibitions; undefined catchalls reduce obscenity regulation to “I know it when I see it,” which violates due process and chills speech.
- Age-variable standard: The Act purports to apply Miller’s “patently offensive” and “lacks serious value” prongs “for the age of the child present.” But without workable guidelines—grade-by-grade definitions or local practice—the law leaves speakers guessing whether content appropriate for a 16-year-old offends a 12-year-old. This vagueness broadens the law’s reach and chills protected speech—adults must verify minors’ ages at the door or risk criminal sanctions.
Injunctive Relief: Because facial overbreadth invalidation was likely, the Court affirmed a statewide injunction to prevent ongoing chilling enforcement. Universal relief was proper in a facial First Amendment case: putting off relief until each venue sues would perpetuate the chilling effect.

3.3 Impact

The Eleventh Circuit’s decision carries significant ramifications:

Obscenity Regulation: States must craft obscenity laws—especially those targeting minors—with precision. Vague terms like “lewd conduct” or shifting age-by-age standards will invite successful facial challenges.
Age-Variable Standards: While Ginsberg sanctioned variable obscenity definitions for minors, modern statutes must provide clear age cutoffs or detailed guides (e.g., educational curricula by grade) to avoid constitutional infirmities.
First Amendment Chilling Effects: The opinion reinforces the principle that self-censorship resulting from fear of arbitrary enforcement can establish standing and warrants early injunctive relief.
Facial Challenges: Moody’s rigorous test for facial invalidation in First Amendment contexts demands careful mapping of a statute’s lawful vs. unlawful applications, or else broad enjoinments may be reversed.
Legislative Drafting: Legislatures seeking to protect children from harmful speech should draft statutes with specific definitions, bright-line ages, or detailed guidance that survives Miller’s specificity requirement.

4. Complex Concepts Simplified

Obscenity (Miller Test): A three-part rule for unprotected speech: (1) appeals to prurient interest, (2) patently offensive depiction of sexual conduct, (3) lacks serious value. Importantly, “patently offensive” must be “specifically defined” by statute or authoritative construction.
“I Know It When I See It”: Justice Stewart’s 1964 quip in Jacobellis rebuked: vague tests empower arbitrary enforcement and chill speech.
Variable Obscenity for Minors: Post-Ginsberg, states may define obscenity differently for minors, but must still supply specific statutory definitions and clear age guidelines.
Vagueness: Laws must give ordinary readers fair notice of prohibited conduct and limit arbitrary enforcement through clear definitions or bright-line rules. Vagueness chills lawful expression when speakers avoid borderline content.
Overbreadth: A facial First Amendment challenge succeeds only if a statute’s unconstitutional applications are “substantial” relative to its valid scope. Courts must weigh the full range of lawful vs. unlawful enforcement scenarios.
Self-Censorship Standing: If a law’s vagueness or enforcement threat causes speakers to refrain from protected expression, self-censorship constitutes an injury for standing.
Age-Variable Standard: A scheme that adjusts legal tests based on a child’s age. Constitutionally permissible only when accompanied by clear age cutoffs or detailed statutory guidance that passes Miller’s specificity requirement.
Facial vs. As-Applied Challenges: Facial invalida- tion affects enforcement against all, and courts must proceed cautiously, per Moody, mapping lawful vs. unlawful applications before striking down a law in its entirety.

5. Conclusion

HM Florida-ORL, LLC v. Griffin reaffirms core First Amendment principles: obscenity regulation requires precision and clarity, especially when minors are involved. Vague catchall terms like “lewd conduct” and undefined age-by-age standards allow governmental whim to chill a broad spectrum of protected expression. In light of Miller, Ginsberg, and Moody, states must craft narrowly tailored, specifically defined statutes or risk facial challenges. This decision underscores the judiciary’s obligation to safeguard free speech by demanding that states use a legislative scalpel—not a shotgun—when regulating speech potentially accessible to children.