Porn pushback

In a world awash with sexual messaging, legislators have met repeated First Amendment roadblocks in their attempts to protect children. A ruling in Naples, Fla., is the latest in a string of court decisions that lean on free speech rights to limit efforts at putting safeguards around content like drag shows or online pornography.

Last week, U.S. District Judge John Steele called the city of Naples’ efforts to protect children from viewing drag shows “clearly invalid” under the First Amendment. Steele instead found that the LGBTQ organization Naples Pride has a right to hold its annual summer drag show in a park within eyesight of a popular public playground.

When Naples Pride held its show at the venue in 2022, men clad in revealing female attire and gaudy makeup performed sexualized dances by “twerking” or dropping to the ground to spread their legs. The men invited children from the audience to stuff dollar bills into their rhinestone-studded underwear and fishnet hosiery.

After local residents voiced concerns about the event’s proximity to children, the city and Naples Pride agreed that the group would host the event indoors and only admit adults.

That arrangement worked for two years, but earlier this year, Naples Pride requested a permit to hold its 2025 event outside again. The city denied it. The LGBTQ group then filed a lawsuit in April against the city, alleging that its decision was unconstitutional and discriminatory.

After Steele ruled in favor of the LGBTQ group, the Naples City Council voted on Friday to appeal the judge’s decision.

Also last week, the 11th U.S. Circuit Court of Appeals ruled against Florida’s Protection of Children Act. The law aimed to provide statewide protections for minors from viewing drag shows, but a divided court found that the act was “overly broad.”

Ronnie London, an attorney at the Foundation for Individual Rights and Expression, said that content such as drag shows is protected speech because it doesn’t qualify as obscene speech.

Content can only be dubbed “obscene” if it falls under the Supreme Court’s three-pronged test established in the 1973 case Miller v. California. The material must appeal to prurient interest, depict sexual conduct in a patently offensive way, and lack literary, artistic, political, or scientific value to become unprotected, obscene speech, London said in a statement to WORLD.

The 11th Circuit noted in its decision that the Constitution is not a “prude” and that “material may be crude, vulgar, or offensive without rising to the level of obscene.”

However, the issue of children attending drag shows can fall under obscenity, contended Mat Staver, the founder of the Christian legal group Liberty Counsel.

“[In Naples] it was literally like a strip show outside specifically directed to kids,” Staver said, noting that “obviously you couldn’t take your child into a strip club.”

Not all drag performances count as obscene, he said, adding that someone dressed in drag reading in a public library is very different from the “sexually provocative” performance in Naples.

Laws need to be narrowly tailored to only regulate events in certain places with certain types of actions to effectively regulate minors’ access, he added.

Two U.S. legislators are attempting another strategy at limiting sexualized content. Earlier this month, Sen. Mike Lee, R-Utah, and Rep. Mary Miller, R-Ill., proposed a bill to overhaul the legal definition of obscenity and make it illegal to transmit obscene content across state lines. This move could give the federal government more power to prosecute overly sexualized speech.

Lee said the bill’s primary aim is to limit minors’ access to online pornography. “Obscenity isn’t protected by the First Amendment, but hazy and unenforceable legal definitions have allowed extreme pornography to saturate American society and reach countless children,” he said in a statement. “Our bill updates the legal definition of obscenity for the internet age so this content can be taken down and its peddlers prosecuted.”

Because the Supreme Court’s definition of obscenity is very narrow, the First Amendment protects most pornography, explained Brad Jacob, a constitutional law expert at Regent University School of Law. The high court originally established the Miller test to ensure that content like classical nude art isn’t banned, he said.

The government can regulate access to the sexualized content through time, place, and manner restrictions, he said. For instance, cities can regulate where “dirty” movie theatres are built.

Inappropriate content can only be banned by laws that meet strict scrutiny, he added, meaning the legislation is narrowly tailored and achieves its interest in the least restrictive manner. The laws also can’t overly burden free speech rights.

Currently, the Supreme Court is weighing the burden that age-verification laws for pornographic sites put on speech rights. More than 20 states have enacted laws that require pornographic sites to verify users’ ages.

In January, the Supreme Court heard oral arguments over the constitutionality of a Texas age-verification law.

Opponents of age verification argue that the requirement is an impediment to protected speech and imposes on privacy rights, Jacob noted. Supporters counter that the laws offer reasonable protections for children.

“The question the court is going to have to wrestle with is how much of a burden you can put on the First Amendment rights of adults to keep inappropriate material out of the hands of children,” Jacob said. “My hope and my guess would be that the court will lean towards saying, ‘Sorry adults, you’re just going to have to go through some burden to get your dirty materials because we have to protect children.’”

Liberty Counsel’s Staver contends that when the First Amendment was first ratified, Congress had no intention of protecting pornographic content.

“The problem that you have is that, over time, the past iterations of different Supreme Court justices have ultimately given some exceptions,” Staver said. “I think, under the original understanding of the First Amendment, pornography has no First Amendment protection.”