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

23-12160 Opinion of the Court 3

performances that are far from obscene only deepens our concerns. We therefore hold that the Act is likely unconstitutional on its face and affirm the lower court’s injunction against its enforcement. I. Background

A. Senate Bill 1438

In 2023, Florida enacted Senate Bill 1438, known also as the Protection of Children Act. See Fla. Laws ch. 2023-94. The Act makes it a misdemeanor to “knowingly admit a child to an adult live performance.” Fla. Stat. § 827.11(3). An “adult live perfor- mance” is any show, exhibition, or other presentation in front of a live audience which, in whole or in part, depicts or simulates nudity, sexual conduct, sexual excite- ment, or specific sexual activities as those terms are defined in s. 847.001, lewd conduct, or the lewd expo- sure of prosthetic or imitation genitals or breasts when it:

1. Predominantly appeals to a prurient, shameful, or morbid interest;

2. Is patently offensive to prevailing standard