Today the Florida legislature is debating F.S. 827.11. It may be the most anti-LGBTQ+ legislation in American history, at least since the Stonewall Riots in 1969. The language of the law will define “Live Performance” to a standard that virtually would make drag queen performance impossible in Florida in its current format. This is a very complicated story and we encourage you to follow closely as the law is designed on a very legal basis to ban Drag Queens, force Gay Pride Organizations to ban drag or cancel their events and will affect every bar, restaurant, hotel and event in Florida that hosts an event with a drag queen. Whether children or alcohol are present or not.
827.11 defines “Adult live performance means 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 excitement, or specific sexual activities as those terms are defined in s. 847.001, lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts
The definition of this live performance continues to define “Predominantly appeals to a prurient, shameful, or morbid interest; Is patently offensive to prevailing standards in the adult community of this state.” This incredibly vague standard is hinged on a supreme court decision defining PRURIENT. We will explain that definition in a moment but this is a key component that will set this statute, if passed, to survive state and even a federal constitutional challenge.
Today’s 827.11 continues “as a whole with respect to what is suitable material or conduct for the age of the child present; and Taken as a whole, is without serious literary, artistic, political, or scientific value for the age of the child present.” This definition will allow any enforcement interpretation to remove the legal defense of artistic or other value and will use the supreme court decision defining PRURIENT standard as that may overcome even a constitutional first amendment defense.
827.11 has virtual certainty of passing because of the GOP Supermajority in the Florida legislature and the desires of Governor Ron Desantis. Critics today bring attention to how insidious the law’s introduction is today. Prurient is a 1984 Supreme Court Brockett v Spokane decision. The ruling decided that the term Prurient was not overbroad in interpretation and is not constitutionally overbroad. The GOP framers of this law have specifically defined the Drag ban using the constitutionally protected term Prurient directly in the legislation. It was likely designed to prevent legal court challenges.
In the decision Prurient was defined as “that which incites lasciviousness or Lust, obscenity, lewd, obscene materials, and creates longing.” This interpretation was supported by (1957) Roth v United States and (1973) Miller v California to further define state criminal statutes governing obscenity. One part of the test adopted by the Court requires that, in order to be found obscene, the materials in question must appeal to the prurient interest in sex. The Florida legislature will defend today’s law as Drag Queens, with their breast plates, exotic make up, wigs and costumes are an inherent sexual experience.
