Doe v. Mortham, 88677

• Decision Date: 19 March 1998
• Docket Number: No. 88677,88677
• Citation: 708 So.2d 929
• Parties: 23 Fla. L. Weekly S153 John DOE, et al., Appellants, v. Sandra MORTHAM, etc., Appellee.
• Court: Florida Supreme Court

Page 929

708 So.2d 929

23 Fla. L. Weekly S153

John DOE, et al., Appellants, v. Sandra MORTHAM, etc., Appellee.

No. 88677.

Supreme Court of Florida.

March 19, 1998.

Philip G. Butler, Jr., of Butler & Brown, P.A., West Palm Beach, for Appellants.

Robert A. Butterworth, Attorney General, and George Waas, Assistant Attorney General, Tallahassee, for Appellee.

SHAW, Justice.

We have on appeal an order of the trial court declaring several Florida statutes facially constitutional. The district court certified that the order involves issues of great public importance requiring immediate resolution by this Court. ¹ We have jurisdiction. Art. V, § 3(b)(5), Fla. Const. We affirm as explained below.

John and Jane Doe filed a complaint in circuit court in February 1996 seeking a declaratory judgment that sections 106.071, ² 106.143, ³ and 106.144, FLORIDA STATUTES (1995)⁴, governing campaign advertising and financing, are unconstitutional. Although the Does had not been charged with any violations under the statutes, they nevertheless asserted that the statutes are overbroad and infringe on their First Amendment right to engage in anonymous political advocacy. The trial court denied the complaint and the district court certified the issue to this Court. The Does argue inter alia that the reporting and identification requirements of the statutes are overbroad and violate both Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), and McIntyre v. Ohio Elections Commission, 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995). We disagree.

I. OVERBREADTH

The basic contours of First Amendment overbreadth doctrine were set out in Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), wherein the United States Supreme Court upheld against facial attack an Oklahoma statute that barred state employees from participating in certain political activities:

It has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society. As a corollary, the Court has altered its traditional rules of standing to permit--in the First Amendment area--"attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity." Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.

....

The consequence of our departure from traditional rules of standing in the First Amendment area is that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute. ...

....

It remains a "matter of no little difficulty" to determine when a law may properly be held void on its face and when "such summary action" is inappropriate. But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function [is a] limited [one].... To put the matter another way ... we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It is our view that [the Oklahoma statute] is not substantially overbroad and that whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.

Id. at 611-616, 93 S.Ct. at 2915-2918 (citations and footnote omitted) (emphasis added). See also Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S.Ct. 2568, 2572, 96 L.Ed.2d 500 (1987) ("A statute may be invalidated on its face, however, only if the overbreadth is 'substantial.' "). ⁵

Applying the above law to the present case, we conclude that Florida sections 106.071, 106.143, and 106.144 are not substantially overbroad and that any infirmity can be cured by the narrowing construction given below. The statutes are not censorial, i.e., they "are not directed at particular groups or viewpoints," but rather seek "to regulate political activity in an even-handed and neutral manner." 413 U.S. at 616, 93 S.Ct at 2918. As the federal Court noted, "such statutes have in the past been subject to less exacting overbreadth scrutiny." Id. The Florida statutes are grounded in valid state concerns ⁶ and include unquestionably lawful provisions within their scope: They impose reporting and identification requirements on the vast array of paid political advertisements promulgated in conjunction with formal campaigns and party apparatuses; and they require that the anonymous "Paid political advertisement" designation be placed on campaign advertisements. When compared to the statutes' plainly legitimate sweep, any arguable infirmity left uncured by our construction today is insubstantial and can be dealt with on an "as applied" basis.

II. BUCKLEY v. VALEO

The United States Supreme Court in Buckley conducted a detailed analysis of the Federal Election Campaign Act (the federal Act). ⁷ Section 434(e) of the federal Act provides in part:

Every person (other than a political committee or candidate) who makes contributions or expenditures, other than by contribution to a political committee or candidate, in an aggregate amount in excess of $100 within a calendar year shall file with the Commission a statement containing the information required by this section.

Buckley, 424 U.S. at 160, 96 S.Ct. at 701 (emphasis added). The term "expenditure" is defined in section 431(f) as follows:

(f) "expenditure"--

(1) means a purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made for the purpose of--

(A) influencing the nomination for election, or the election, of any person to Federal office, or to the office of presidential and vice presidential elector; or

(B) influencing the results of a primary election held for the selection of delegates to a national nominating convention of a political party or for the expression of a preference for the nomination of persons for election to the office of President of the United States....

Buckley, 424 U.S. at 147-48, 96 S.Ct. at 695 (emphasis added).

The federal Court was concerned that the phrase "for the purpose of ... influencing" in section 431(f) was vague in that it could be construed to embrace not just funds spent in the advocacy of a specific candidate, but also funds spent in the discussion of political issues and candidates in general. See Buckley, 424 U.S. at 39-44, 76-80, 96 S.Ct. at 644-47, 662-63. Because such a reading would hinder the free exchange of ideas, the federal Court limited "expenditure" in section 434(e) to reach "only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate." Id. at 80, 96 S.Ct. at 664 (footnote omitted).

In the present case, to the extent that section 106.071 uses the word "issue" and section 106.144 incorporates the phrase "which endorses or opposes any referendum," we find that none of this language is fatally vague. The word "issue" can reasonably be read as pertaining to any specific referendum issue, and the phrase "which endorses or opposes any referendum" is clear on its face. The federal Court in Buckley limited the reach of section 434(e) to embrace only communications concerning "a clearly identified candidate," as opposed to a referendum issue, not because restrictions on issues are improper per se, but rather because section 434(e) addresses "expenditures" and the definition of "expenditure" in section 431(f) by its very terms applies only to political candidates. The federal Court later explained:

The Federal Election Campaign Act of 1971, at issue in Buckley, regulates only candidate elections, not referenda or other issue-based ballot measures; and we construed "independent expenditures" to mean only those expenditures that "expressly advocate the election or defeat of a clearly identified candidate."

McIntyre, 514 U.S. at 356, 115 S.Ct. at 1523. To limit Florida sections 106.071 and 106.144 to "political candidates" simply because federal sections 434(e) and 431(f) are so limited would be illogical where that criterion is written into the latter statutes and absent from the former.

The only arguably vague language in the Florida sections is the phrase "with respect to any candidate or issue" in section 106.071. This language suffers from the same infirmity as that in Buckley in that it can be read as applying to communications that merely discuss in general terms political issues and candidates. This vagueness, however, can be cured simply by reading the phrase to reach only those funds used for communications that expressly advocate the election or defeat of a clearly identified candidate or referendum issue. See Buckley, 424 U.S. at 80, 96 S.Ct. at 664. We so read the statute.

III. McINTYRE v. OHIO ELECTIONS COMMISSION

The United States Supreme Court in McIntyre struck down an Ohio statute that was used to convict and fine a mother, Margaret McIntyre, who was standing outside a public meeting at a...