Brown v. State, No. 50559

CourtUnited States State Supreme Court of Florida
Writing for the CourtSUNDBERG; OVERTON
Citation358 So.2d 16
PartiesMark BROWN, Appellant, v. STATE of Florida, Appellee.
Decision Date05 April 1978
Docket NumberNo. 50559

Page 16

358 So.2d 16
Mark BROWN, Appellant,
v.
STATE of Florida, Appellee.
No. 50559.
Supreme Court of Florida.
April 5, 1978.

Jack O. Johnson, Public Defender, Robert H. Grizzard, II, Chief Asst. Public Defender, Bartow, and Charles L. Carlton, Lakeland, for appellant.

Robert L. Shevin, Atty. Gen., and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.

Page 17

SUNDBERG, Justice.

This appeal invites us to revisit the issue of the constitutionality vel non of Section 847.04, Florida Statutes (1975). 1 On July 3, 1976, appellant Brown was arrested and charged by information with "open profanity" in violation of Section 847.04, Florida Statutes (1975). The information was filed after appellant had uttered "offensive" remarks while in the presence of one Patrolman Newman who had answered a call to proceed to the house of appellant's father. Once the policeman arrived, the appellant got into the patrol car. Newman requested that Brown exit the automobile, at which point appellant replied he was "tired of the mother-f 'cause they weren't doing him right." Apparently, appellant was referring to his by-standing father. After the officer asked appellant to "hold down the profane language," Brown enunciated similar distasteful comments about his father, again in the presence of the patrolman.

Appellant was standing approximately twenty-five (25) feet from his father at the time he pronounced his derogatory remarks and was still further removed from other relatives who were standing on the porch of the house. Newman testified that while appellant's father was puzzled and angry when he arrived at the scene, the father did not become any angrier after hearing the word "mother-f ." The patrolman testified further that Brown's comments were not directed to him personally, but Newman "figured he shouldn't be out there in public using words like that."

Pursuant to Florida Rules of Criminal Procedure 3.190(c), the appellant filed a motion to dismiss the information on the grounds that the statute was unconstitutional on its face and as applied to him, and that his speech was not violative of the statute in light of the narrow construction placed on the statute in State v. Mayhew, 288 So.2d 243 (Fla.1973). A hearing was held on the motion in the County Court of Polk County, Florida, and the motion was denied. On October 8, 1976, the appellant entered a plea of nolo contendere reserving the right to appeal the denial of his motion to dismiss. He was adjudicated guilty of violating Section 847.04, Florida Statutes (1975), sentenced to time served (three days), and fined $25. Appellant has now prosecuted an appeal in this Court alleging that the county court erred in denying his motion to dismiss on the grounds that the statute in issue is unconstitutional on its face because it seeks to regulate pure speech and because it is vague and overbroad. He also contends that his speech did not fall under the behavior proscribed by the statute. Because the trial court passed directly on the validity of Section 847.04, Florida Statutes (1975), on the face of its order denying appellant's motion to dismiss, jurisdiction vests in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution.

In attacking the facial validity of Section 847.04, Florida Statutes (1975), appellant must necessarily encounter this Court's decision in State v. Mayhew, supra, wherein the identical statute was upheld as constitutional. The Mayhew Court found that the enactment of Section 847.04, Florida Statutes (1975), was a valid exercise of the State's police power and was reasonably related to the public safety, public welfare and public morals. In addition, the Court sustained the statute in the face of accusations that it was vague and overbroad after it construed the statute to limit the speech regulated to words likely to cause a breach of the peace. Relying on Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), this Court stated:

The language sought to be proscribed by Section 847.04, Florida Statutes,

Page 18

F.S.A., falls within the narrowly limited classes of speech described by the Supreme Court in Chaplinsky which " . . . include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting words' those which by their utterance inflict injury or tend to incite an immediate breach of the peace." In accordance with the policy of this Court to construe a statute when possible in a manner supportive of its constitutionality, we find that the language sought to be prohibited by Section 847.04, Florida Statutes, F.S.A., is that which would necessarily incite a breach of the peace.

288 So.2d at 251.

The Court later attempted to elaborate on just what kind of language "would necessarily incite a breach of the peace." It quoted from Cantwell v. State, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), in which the United States Supreme Court stated that "the provocative language which was held (in judicial decisions) to amount to a breach of the peace consisted of profane, indecent, or abusive remarks directed to the person of the hearer." The Mayhew Court, then adopted the Chaplinsky authoritative construction by narrowing the statute's scope to proscribe fighting words, although the specific holding of Mayhew does not state this limitation. Nor, does the opinion expressly define the words "necessarily incite a breach of the peace" as meaning "words likely to cause an average addressee to fight" which appears to be the critical aspect of Chaplinsky.

In the Mayhew decision, this Court felt obliged to distinguish Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). Gooding arose as a result of an anti-war demonstration at an army headquarters building. The demonstrators tried to block the entrance to the building in order to prevent the inductees from entering. When the demonstrators refused to comply with the policemen's requests that they cease such conduct, an encounter arose in which the defendant, Wilson, purportedly said to a patrolman, "White son of a bitch, I'll kill you," "you son of a bitch, I'll choke you to death," and "you son of a bitch, if you ever put your hands on me again, I'll cut you all to pieces."

Wilson was convicted in Georgia State Court under a statute which provides that "any person who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language tending to cause a breach of the peace . . . shall be guilty of a misdemeanor."...

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39 practice notes
  • Stall v. State, Nos. 74020
    • United States
    • United States State Supreme Court of Florida
    • October 11, 1990
    ...indecent or obscene language." § 847.05, Fla.Stat. (1975). Also, this Court has addressed a similar obscenity problem in Brown v. State, 358 So.2d 16 (Fla.1978), which dealt with a statute prohibiting "open profanity." § 847.04, Fla.Stat. In Keaton, we began our analysis with the establishe......
  • Donley v. City of Mountain Brook, 6 Div. 742
    • United States
    • Alabama Court of Criminal Appeals
    • May 18, 1982
    ...however, abandon judicial restraint and invade the province of the legislature by rewriting its terms. State v. Keaton; Brown v. State, 358 So.2d 16 (Fla.1978). In dealing with statutory regulation of first amendment activity, this Court has in the past strictly construed a challenged statu......
  • Sult v. State, No. SC03-542.
    • United States
    • United States State Supreme Court of Florida
    • June 23, 2005
    ...narrowing constructions so as to effectively rewrite legislative enactments. News-Press Publishing Co., 538 So.2d at 460; Brown v. State, 358 So.2d 16, 20 (Fla.1978). Even if we were to find that the ordinance could be preserved facially by writing in requirements of specific intent to enga......
  • Lamont v. State, Nos. 89-2917
    • United States
    • Court of Appeal of Florida (US)
    • February 18, 1992
    ...rests on the due process requirement that criminal statutes must say with some precision exactly what is prohibited. E.g., Brown v. State, 358 So.2d 16 (Fla.1978); Franklin v. State, 257 So.2d 21 (Fla.1971); State v. Moo Young, 566 So.2d 1380 (Fla. 1st DCA 1990). Words and meanings beyond t......
  • Request a trial to view additional results
39 cases
  • Stall v. State, Nos. 74020
    • United States
    • United States State Supreme Court of Florida
    • October 11, 1990
    ...indecent or obscene language." § 847.05, Fla.Stat. (1975). Also, this Court has addressed a similar obscenity problem in Brown v. State, 358 So.2d 16 (Fla.1978), which dealt with a statute prohibiting "open profanity." § 847.04, Fla.Stat. In Keaton, we began our analysis with the establishe......
  • Donley v. City of Mountain Brook, 6 Div. 742
    • United States
    • Alabama Court of Criminal Appeals
    • May 18, 1982
    ...however, abandon judicial restraint and invade the province of the legislature by rewriting its terms. State v. Keaton; Brown v. State, 358 So.2d 16 (Fla.1978). In dealing with statutory regulation of first amendment activity, this Court has in the past strictly construed a challenged statu......
  • Sult v. State, No. SC03-542.
    • United States
    • United States State Supreme Court of Florida
    • June 23, 2005
    ...narrowing constructions so as to effectively rewrite legislative enactments. News-Press Publishing Co., 538 So.2d at 460; Brown v. State, 358 So.2d 16, 20 (Fla.1978). Even if we were to find that the ordinance could be preserved facially by writing in requirements of specific intent to enga......
  • Lamont v. State, Nos. 89-2917
    • United States
    • Court of Appeal of Florida (US)
    • February 18, 1992
    ...rests on the due process requirement that criminal statutes must say with some precision exactly what is prohibited. E.g., Brown v. State, 358 So.2d 16 (Fla.1978); Franklin v. State, 257 So.2d 21 (Fla.1971); State v. Moo Young, 566 So.2d 1380 (Fla. 1st DCA 1990). Words and meanings beyond t......
  • Request a trial to view additional results

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