Simmons v. State, No. SC04-2375.

CourtUnited States State Supreme Court of Florida
Writing for the CourtQuince
Citation944 So.2d 317
Docket NumberNo. SC04-2375.
Decision Date16 November 2006
PartiesMichael John SIMMONS, Petitioner, v. STATE of Florida, Respondent.
944 So.2d 317
Michael John SIMMONS, Petitioner,
v.
STATE of Florida, Respondent.
No. SC04-2375.
Supreme Court of Florida.
November 16, 2006.

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William J. Sheppard, D. Gray Thomas and Matthew R. Kachergus of Sheppard, White and Thomas, P.A., Jacksonville, FL, for Appellant.

Charles J. Crist, Jr., Attorney General, Robert R. Wheeler, Bureau Chief, Criminal Appeals, Charlie McCoy, Senior Assistant Attorney General, Tallahassee, FL, for Appellee.

QUINCE, J.


We have for review a decision of a district court of appeal that expressly declares a state statute valid. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons explained below, we approve the decision of the First District Court of Appeal in Simmons v. State, 886 So.2d 399 (Fla. 1st DCA 2004).

FACTS AND PROCEDURAL HISTORY

This case involves the prosecution of Michael John Simmons for luring or enticing a child by use of an online service in violation of section 847.0135, Florida Statutes (2002),1 and for transmission of material harmful to a minor in violation of section 847.0138, Florida Statutes (2002).2 On July 1, 2002, Columbia County Sheriff's Deputy Kenneth Neff posed as a thirteen-year-old girl named "Sandi" in an Internet chat room entitled "I like older men." An online conversation ensued between "Sandi" and Simmons, who was located in Virginia. After "Sandi" identified herself as a thirteen-year-old girl residing in Florida, Simmons repeatedly communicated with "Sandi" about sexual activities, sent nude pictures of himself to "Sandi," asked "Sandi" to send him a pair of her panties, offered to teach "Sandi" about sex, encouraged "Sandi" to meet him for sexual activities, and eventually made a trip to Lake City, Florida, to meet "Sandi" for three days of sexual activities at a motel. When Simmons arrived at the Lake City motel, he was arrested by members of the Columbia County Sheriff's Office.

Simmons was charged with one count of luring or enticing a child by use of an online service in violation of section 847.0135, one count of transmission of material harmful to a minor in violation of section 847.0138, and one count of carrying a concealed firearm in violation of section 790.01(2), Florida Statutes (2002). Simmons moved to dismiss the first two counts on the grounds that the statutes are unconstitutional, that his prosecution under both statutes constituted a double jeopardy violation, and that the trial court lacked jurisdiction to proceed on the matter. The trial court denied the motions to dismiss. Simmons pled no contest to these counts and reserved his right to appeal the denial of his motions to dismiss. He was sentenced

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to two concurrent five-year terms of probation.

On appeal, Simmons brought facial constitutional challenges to sections 847.0135 and 847.0138. See Simmons v. State, 886 So.2d 399 (Fla. 1st DCA 2004).3 Simmons challenged section 847.0138 as violating the First and Fourteenth Amendments of the United States Constitution and article I, sections 4 and 9 of the Florida Constitution. Simmons did not argue that the government lacks a compelling interest in protecting the physical and psychological well-being of children, but instead argued that section 847.0138 is overbroad because it "limits communications on the Internet to those which would only be suitable for children, thereby depriving adults of their constitutional right to engage in protected speech." Id. at 403. The First District Court of Appeal rejected this argument, finding that because the statute requires the defendant to have actual knowledge or to believe that the recipient of the communication is a minor, it does not deprive adults of their constitutional right to engage in protected speech and that only communications to minors are prohibited by the statute. Id. The First District also concluded that the statute does not have a chilling effect on First Amendment speech between adults in Internet chat rooms. Id. at 404. The First District found that the statute does not prohibit information posted on websites directed to the public as the prohibited communication from an adult to a minor must be transmitted via electronic mail, which means that the message "must be specifically addressed to the individual, whether in instant messaging or e-mails sent and read at different times." Id. While the First District acknowledged that a similar federal statute, the Communications Decency Act of 1996, had been declared unconstitutional in Reno v. ACLU, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), the court concluded that the federal law differed from Florida's statute because the federal law contained no provision limiting prohibited transmissions to those sent "to a specific individual known by the defendant to be a minor via electronic mail." Simmons, 886 So.2d at 405 (quoting § 847.0138(1)(b)). The First District noted that the federal law struck down in Reno had included transmissions to a group that was likely to include a minor, while the Florida statute only prohibits messages harmful to minors that are sent to a specific individual known or believed to be a minor. Id.

The First District also rejected Simmons' argument that the statute is impermissibly vague because it applies to all minors without attempting to classify materials differently for various age groups of minors. The First District concluded that it is within the Legislature's power to determine that certain matter is harmful to all minors and that the Legislature has the authority to protect all children, even the older ones. Id. The First District also concluded that neither statute violates the Dormant Commerce Clause, and cited its recent opinion in Cashatt v. State, 873 So.2d 430 (Fla. 1st DCA 2004),4 for this proposition. Simmons, 886 So.2d at 406. Judge Browning concurred with the majority on the constitutionality of section 847.0135, but dissented as to section 847.0138. Judge Browning found that the transmission statute was not narrowly tailored to serve a compelling state interest, is void for vagueness and overbreadth, and

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violates the Commerce Clause. Simmons, 886 So.2d at 407-14 (Browning, J., concurring in part and dissenting in part).

Simmons sought review by this Court on the basis that the First District's decision expressly declares a state statute to be valid. We granted review and heard oral argument from the parties on the constitutionality of both statutes.

LAW AND ANALYSIS

Simmons contends that section 847.0138, the transmission statute, violates First Amendment principles regarding free speech and is also vague and overbroad. He also contends that both the transmission statute and the luring statute, section 847.0135, violate the Dormant Commerce Clause. We consider each challenge in turn below. The First District's rulings on the constitutionality of the statutes are subject to de novo review by this Court. See City of Miami v. McGrath, 824 So.2d 143, 146 (Fla.2002) (stating that constitutionality of a state statute is a pure question of law subject to de novo review).

1. First Amendment Challenge

The First Amendment to the United States Constitution provides that "Congress shall make no law . . . abridging the freedom of speech." U.S. Const., amend. I. Florida's Constitution similarly provides that "[n]o law shall be passed to restrain or abridge the liberty of speech." Art. I, § 4, Fla. Const. A regulation that abridges speech because of the content of the speech is subject to the strict scrutiny standard of judicial review. See, e.g., Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Mitchell v. Moore, 786 So.2d 521, 527 (Fla.2001). Strict scrutiny also applies to content-based regulation of Internet speech. See Reno v. ACLU, 521 U.S. 844, 870, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (stating that "our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium"). "Sexual expression which is indecent but not obscene is protected by the First Amendment . . . ." Sable Commc'ns of Cal., Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). However, the state may regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest. See United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000); Sable Commc'ns, 492 U.S. at 126, 109 S.Ct. 2829. The state has a "compelling interest in protecting the physical and psychological well-being of minors," which "extends to shielding minors from the influence of literature that is not obscene by adult standards." Sable Commc'ns, 492 U.S. at 126, 109 S.Ct. 2829. In doing so, however, the means must be narrowly tailored to achieve that end so as not to unnecessarily deny adults access to material which is constitutionally protected indecent material. No similar tailoring is required when the material is obscene material, which is not protected by the First Amendment. See Ashcroft v. Free Speech Coal., 535 U.S. 234, 244-45, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002).

Simmons also challenges the transmission statute as vague and overbroad. As this Court has explained, "the doctrines of overbreadth and vagueness are separate and distinct." Southeastern Fisheries Ass'n v. Dep't of Natural Res., 453 So.2d 1351, 1353 (Fla.1984). The overbreadth doctrine applies only if the legislation is susceptible of application to conduct protected by the First Amendment. Id. The overbreadth doctrine contemplates the pragmatic judicial assumption that an

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overbroad statute will have a chilling effect on protected expression. See City of Daytona Beach v. Del Percio, 476 So.2d 197, 202 (Fla.1985). As the United States Supreme...

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28 practice notes
  • MILLER v. State of Fla., No. SC08-287.
    • United States
    • United States State Supreme Court of Florida
    • August 9, 2010
    ...constitutional standards. We review a trial court's ruling on the constitutionality of a Florida statute de novo. See Simmons v. State, 944 So.2d 317, 323 (Fla.2006). After a thorough consideration of the constitutional challenges presented by Miller, we deny relief on this Indictment Mille......
  • Chambers v. Ormiston, No. 2006-340.
    • United States
    • United States State Supreme Court of Rhode Island
    • December 7, 2007
    ...the advent of the Internet to the drafters of the "commerce clause" in the United States Constitution.25 See Simmons v. State, 944 So.2d 317, 331 (Fla. 2006) ("the Internet `represents an instrument of interstate commerce, albeit an innovative one'") (quoting American Li......
  • State v. Catalano, No. SC11–1166.
    • United States
    • United States State Supreme Court of Florida
    • December 13, 2012
    ...the time, place, and manner of the limitations are content based, a strict standard of scrutiny is applied. See, e.g., Simmons v. State, 944 So.2d 317, 323 (Fla.2006). “The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in ......
  • Enoch v. State, No. 1D10–3443.
    • United States
    • Court of Appeal of Florida (US)
    • August 27, 2012
    ...United States v. Stevens, 533 F.3d 218, 227 (3d Cir.2008), aff'd,––– U.S. ––––, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010); Simmons v. State, 944 So.2d 317, 328–29 (Fla.2006). These decisions have dealt with serious matters, including speech that incites imminent illegal activity or is inextric......
  • Request a trial to view additional results
28 cases
  • MILLER v. State of Fla., No. SC08-287.
    • United States
    • United States State Supreme Court of Florida
    • August 9, 2010
    ...constitutional standards. We review a trial court's ruling on the constitutionality of a Florida statute de novo. See Simmons v. State, 944 So.2d 317, 323 (Fla.2006). After a thorough consideration of the constitutional challenges presented by Miller, we deny relief on this Indictment Mille......
  • Chambers v. Ormiston, No. 2006-340.
    • United States
    • United States State Supreme Court of Rhode Island
    • December 7, 2007
    ...have been the advent of the Internet to the drafters of the "commerce clause" in the United States Constitution.25 See Simmons v. State, 944 So.2d 317, 331 (Fla. 2006) ("the Internet `represents an instrument of interstate commerce, albeit an innovative one'") (quoting American Libraries As......
  • State v. Catalano, No. SC11–1166.
    • United States
    • United States State Supreme Court of Florida
    • December 13, 2012
    ...the time, place, and manner of the limitations are content based, a strict standard of scrutiny is applied. See, e.g., Simmons v. State, 944 So.2d 317, 323 (Fla.2006). “The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in ......
  • Enoch v. State, No. 1D10–3443.
    • United States
    • Court of Appeal of Florida (US)
    • August 27, 2012
    ...United States v. Stevens, 533 F.3d 218, 227 (3d Cir.2008), aff'd,––– U.S. ––––, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010); Simmons v. State, 944 So.2d 317, 328–29 (Fla.2006). These decisions have dealt with serious matters, including speech that incites imminent illegal activity or is inextric......
  • Request a trial to view additional results

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