Griffin v. State

• Decision Date: 12 March 1981
• Docket Number: No. 56240,56240
• Parties: John Otis GRIFFIN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 152

396 So.2d 152

21 A.L.R.4th 225

John Otis GRIFFIN, Appellant, v. STATE of Florida, Appellee.

No. 56240.

Supreme Court of Florida.

March 12, 1981.

Joel Hirschhorn, Miami, for appellant.

Jim Smith, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., Miami, for appellee.

ADKINS, Justice.

This is a direct appeal from a final judgment of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County upholding the constitutionality of section 847.014, Florida Statutes (1977). We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972).

The appellant (defendant below), John Otis Griffin, was charged by information with producing or directing obscene photos involving a minor and with procuring a minor for obscene photos, in violation of sections 847.014(2)(a)(1) and (2) (a)(2), Florida Statutes (1977).

Section 847.014 reads in part as follows:

847.014 Minors participating in harmful motion pictures, exhibitions, shows, presentations, or representations.

. . . .

(2) OFFENSES AND PENALTIES.

(a)1. It is unlawful for any person knowingly to produce, conduct, direct, perform, or participate in any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, depicts sexual conduct, sexual excitement, or sadomasochistic abuse involving a minor.

2. It is unlawful for any person knowingly to aid, abet, counsel, hire, or otherwise procure a minor to perform or participate in any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, depicts sexual conduct, sexual excitement, or sadomasochistic abuse involving a minor.

These subsections rely upon various definitions set forth in the statute as follows:

(1) DEFINITIONS. As used in this section:

(a) "Minor" means any person under the age of 18 years.

. . . .

(c) "Sexual conduct" means acts of masturbation; sexual intercourse; or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person be a female, breast or any act or conduct which constitutes the commission of sexual battery or suggests that such crime is being or will be committed.

(d) "Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal.

(e) "Sadomasochistic abuse" means the flagellation or torture by or upon a person clad in undergarments, a mask, or a bizarre costume or the condition of being fettered, bound, or otherwise physically restrained on the part of one so clothed.

(f) "Harmful to minors" means that quality, whether actual or simulated, of any description, exhibition, presentation, or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it:

1. Predominantly appeals to the prurient, shameful, or morbid interest of minors,

2. Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors, and

3. Is without serious literary, artistic, political or scientific value for minors.

The defendant's motions to dismiss, attacking the constitutionality of the statute, were heard and denied. The defendant pled no contest to the charges, reserving the right to appeal the denial of his motions to dismiss. He was placed on probation for five years and was fined one-thousand ($1,000.00) dollars.

The issues presented are whether section 847.014 is unconstitutional as being overbroad and void for vagueness, and contrary to the Constitutions of the United States and Florida; whether the information filed is sufficient as a matter of law; and whether the statute conflicts with article III, section 6, Florida Constitution, which requires that the subject of a statute be expressed in its title.

The defendant contends that section 847.014 is void for vagueness and clearly overbroad. In Zachary v. State, 269 So.2d 669, 670 (Fla.1972), the Court stated: "The test of a statute insofar as vagueness is concerned is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice." (Citation omitted). Measured by this test, we hold that the statute is impervious to attack upon the grounds of vagueness, as a person of common intelligence and understanding has adequate notice of the conduct proscribed. Sandstrom v. Leader, 370 So.2d 3 (Fla.1979).

"(T)he line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn." Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1341, 2 L.Ed.2d 1460 (1958). In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), the United States Supreme Court held that obscenity was not within the constitutionally protected freedom of speech or press.

In Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973), the United States Supreme Court announced a three-part test for determining whether a work was obscene.

The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

(Citations omitted).

The Court also gave two examples of what a state could regulate under part (b) of the three-part test:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representation or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

413 U.S. at 25, 93 S.Ct. at 2615.

The defendant contends that subsections (2)(a)(1) and (2)(a)(2) of the statute fail to incorporate the three-part Miller test, all of which must be satisfied before any material is found to be obscene. The defendant's reliance on Miller is misplaced because the statute in question does not proscribe constitutionally protected speech or activities, but prohibits specific conduct relating to minors. "(S)tates have greater power to regulate nonverbal, physical conduct than to suppress depictions or descriptions of the same behavior." 413 U.S. at 26, 93 S.Ct. at 2616.

The well-being of children is a subject within the state's constitutional power to regulate. Ginsburg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). A state may adopt more stringent controls on communicative materials available to minors than on those available to adults. Erzoznick v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975).

In United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968), a case not dealing with obscenity, the United States Supreme Court held that a state regulation of conduct embodying both speech and nonspeech elements is sufficiently justified if it furthers an important or substantial governmental interest, if the governmental interest is unrelated to the suppression of free expression, and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

The legislature has exercised its constitutional power to regulate in several areas for the well-being of its children. Activities such as gambling or purchasing alcoholic beverages are permitted for adults, but are prohibited for minors.

Acting within their constitutional powers and duties, the legislature enacted sections 847.014(2)(a)(1) and (2)(a)(2), to protect minors from conduct they determined to be harmful. "The Legislature has a great deal of discretion in determining what measures are necessary for the public's protection, and this Court will not, and may not, substitute its judgment for that of the Legislature insofar as the wisdom or policy of the act is concerned." Hamilton v. State, 366 So.2d 8, 10 (Fla.1978).

In deciding whether a statute is constitutional, every presumption is to be indulged in favor of the validity of the statute. Golden v. McCarty, 337 So.2d 388 (Fla.1976). The defendant contends that "sexual conduct," "sexual excitement," and "sadomasochistic abuse" as defined by sections 847.014(1) (c)-(e) are overbroad.

Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.

Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2914, 37 L.Ed.2d 830 (1973).

(W)here conduct and not merely speech is involved, 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.

413 U.S. at 615, 93 S.Ct. at 2917.

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." Dombrowski v. Pfister, 380 U.S. (479) at 486 (85 S.Ct. 1116 at 1120, 14 L.Ed.2d 22). (1965) (Citations omitted.)

413 U.S. at 611-12, 93 S.Ct. at 2915-16.

Finding that the statute in question...