State v. Shank, 4D00-2630.
| Decision Date | 19 September 2001 |
| Docket Number | No. 4D00-2630.,4D00-2630. |
| Parties | STATE of Florida, Appellant, v. Lloyd SHANK, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellant.
Steven Wisotsky of Steven Wisotsky, P.A., Coconut Grove, for appellee, and Barry Butin, Fort Lauderdale, cooperating counsel for the ACLU of Florida.
The State of Florida appeals the county court's dismissal of an information charging appellee with a violation of section 836.11, Florida Statutes, which prohibits publications tending to expose persons to hatred, contempt, or ridicule. The court granted appellee's motion to dismiss the information after declaring the statute facially unconstitutional as violative of the First Amendment. We affirm.
On August 23, 1999, members of the Broward County Board of Commissioners received copies of an anonymous letter in their inter-office mail. The letter included anti-Semitic comments. After admitting to a detective that he wrote the letter, appellee was arrested and charged with a violation of section 836.11. That section provides:
(1) It shall be unlawful to print, publish, distribute or cause to be printed, published or distributed by any means, or in any manner whatsoever, any publication, handbill, dodger, circular, booklet, pamphlet, leaflet, card, sticker, periodical, literature, paper or other printed material which tends to expose any individual or any religious group to hatred, contempt, ridicule or obloquy....
In a thorough and well-reasoned twenty-two-page order, the trial court concluded that this section violates the First Amendment because it is impermissibly content-based, overbroad, and vague. We agree.
Content neutrality
R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). "The principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). "Government regulation of expressive activity is content neutral so long as it is `justified without reference to the content of the regulated speech.'" Id. (citing Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)). Even in these areas in which the government is free to regulate, such as obscenity or fighting words, it cannot make further content discrimination. See R.A.V., 505 U.S. at 382,
112 S.Ct. 2538. Therefore, even proscribable speech must be curtailed in a content-neutral fashion. Id. at 387-88, 112 S.Ct. 2538.
Section 836.11 is not content-neutral. The statute criminalizes speech based solely on content, i.e., speech that criticizes or ridicules is targeted, while other "nice" publications that praise or promote approval, admiration, or commendation are not penalized. This restriction on speech "would open the door to government favoritism and protectionism of certain topics and viewpoints and implicit censorship of disfavored ones." State v. Stalder, 630 So.2d 1072, 1075 (Fla.1994). Consequently, the statute is facially invalid, and, contrary to the state's argument, it cannot be saved by the severability doctrine. See Ray v. Mortham, 742 So.2d 1276, 1280 (Fla.1999)
( judicially created severability doctrine for saving constitutionally infirmed legislative enactments).
We also agree with the trial court that section 836.11 is unconstitutionally overbroad. When a court is confronted with a facial challenge to a law on the ground that it is overbroad, "a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct." City of Houston v. Hill, 482 U.S. 451, 458, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). "Criminal statutes must be scrutinized with particular care; those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application." Id. (citations omitted). Section 836.11 not only impacts proscribable speech, it also profoundly impacts speech that is clearly protected. For example, the trial court wisely noted that the statute could be construed to proscribe parodies, anonymous political cartoons, or anonymous "letters to the editor" of a local newspaper that ridicule or expose to contempt individuals who are not public figures, but are nevertheless "in the news."
[9, 10] It is a basic principle of due process that an...
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