Legal Battles Over Public Performances and Parental Rights
Currently, courts maintain that there is no right to physical autonomy concerning mandatory vaccinations or mask-wearing, leveraging the state’s “police power” as their reasoning. Interestingly, when the government attempts to regulate public nudity or sexually explicit performances in the presence of minors, the judiciary suddenly emphasizes First Amendment rights.
In 2023, Florida Governor Ron DeSantis signed SB 1438, a law aimed at preventing businesses from knowingly allowing children at “live performances for adults.” The law characterizes these performances as those that depict or mimic nude acts, sexual arousal, or specific sexual activities. At first glance, this seems reasonable.
But, just recently, the 11th Circuit Court of Appeals ruled 2-1 that the law infringes on both the First and Fourth Amendments.
This ruling raises questions even before diving into its legal foundation. The essence of the decision points to a troubling practice where a universal injunction challenges laws crafted through democratic means. Notably, the plaintiff, a restaurant called Burger Mary known for hosting drag shows, wasn’t even under investigation yet used this preemptive legal action against the entire law.
It’s clear to many that the government possesses the right to regulate these matters. So, what concerns the court? Some phrases in the law seem ambiguous, which could impact protected expressions.
Even if they present valid points regarding ambiguity, it still doesn’t warrant the invalidation of the entire statute. Courts can only provide relief in instances where enforcement goes beyond constitutional boundaries. A judge doesn’t have the power to reject laws when they typically reside within the state’s regulatory rights.
Concerning merit, to label terms like “lewd behavior” as unconstitutional feels ludicrous. Lawmakers have used such terminology for ages, and courts have upheld these terms without issue. The 11th Circuit missed an opportunity to overturn the district court’s injunction. Yet, with the current Supreme Court composition, it’s unlikely to shift much in 2023.
People reflect on a time when Americans experienced greater freedoms and a more accurate interpretation of the First Amendment, albeit under stricter public decency laws. Numerous such regulations still exist today. A historical reference is the Comstock Act of 1873, which prohibited mailing “indecent” materials, demonstrating how ambiguous terms once managed to withstand courtroom challenges for years.
When considering the 14th Amendment’s equal protection clause, the intention behind shielding children from inappropriate public displays would likely astonish its authors. James F. Wilson, instrumental in drafting the Civil Rights Act of 1866 and the 14th Amendment, was explicit in his goals. He stated that the purpose was not to create new rights, but to safeguard and enforce those that already belong to all citizens.
One might muse whether Wilson ever anticipated that his efforts to protect property rights for freed slaves would morph into a constitutional right exposing minors to nudity.
The greater issue at hand pertains to the law’s reaffirmation of unchecked judicial power. This Florida case amplifies a worrisome trend: the Supreme Court appears divided, lacking the majority needed to counter lower court decisions that threaten national authority. Notably, last week, all three judges appointed by Trump joined in a ruling that overturned a reasonable Fifth Circuit insistence on limiting the deportation of criminal aliens under enemy alien laws.
This leads to more significant challenges. The judiciary seems less inclined to interpret laws and more inclined to negate them. Florida’s situation serves as a stark reminder that even when a Republican majority governs, conservative legislation remains vulnerable unless it confronts the prevailing notion of judicial dominance. It seems the courts now serve as obstacles rather than impartial arbiters.
Republicans made a tactical error by buying into the belief that judges should be the final decision-makers regarding public policy. Their base was promised that simply stacking the courts would suffice. Unfortunately, this has proven inadequate. Instead of transforming the system, they’ve effectively validated it—and now they’re confronting the repercussions.
The cost includes a legal landscape where introducing children to sexually explicit performances is treated as a constitutional right. If lawmakers don’t start to challenge judicial overreach, even the most modest conservative reforms may fall by the wayside, adversely affecting parental rights and community standards.
