A short excerpt from the long opinion today in HM Florida-ORL, LLC v. Governor, decided by Judge Robin Rosenbaum, joined by Judge Nancy Abudu:
Justice Potter Stewart famously offered a non-definition of obscenity: “I know it when I see it.” Jacobellis v. Ohio (Stewart, J., concurring). Many know Justice Stewart’s quip. But it’s not, in fact, the law.
The Constitution demands specificity when the state restricts 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 history of arbitrarily enforcing other, similar laws against 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….
Stupid thought – How about the state get out of the child-rearing business and leave it to parents to determine what is appropriate for children?
Florida’s history of gov regulating free speech…reminds me of the infamous Jim Morrison Miami concert where he was charged with lewd and lascivious behavior when he allegedly exposed himself, charged with imitating fellacito while closely watching the guitar licks of of the guitar player and charge with other things.
No evidence was submitted in court he exposed himself. And as for all other behavior, the judge refused to allow the defense to show what was currently going on as art and entertainment in the community and that Jim’s behavior was no worse than the current community standards where there was already in the community full frontal nudity in the HAIR productions. The judge was up for re-election. Jim was found guilty but died before the appeal process was complete. And during this century, the courts got rid of the criminal charges against Jim and stated there was no evidence presented at the original trial back in the late 60s for the charges.
Gov regulating free speech and criminalizing it even with there is no evidence of committing a crime…