Stall v. State

Decision Date11 October 1990
Docket Number74390,Nos. 74020,s. 74020
Citation570 So.2d 257
Parties15 Fla. L. Weekly S520 Tommie Lynn STALL, Petitioner, v. STATE of Florida, Respondent. Todd Edward LONG, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Asst. Public Defender, Bartow, for Tommie Lynn Stall.

Bruce L. Randall, Fort Lauderdale, John C. Wilkins, III, Bartow, and John H. Weston, Clyde F. DeWitt and Cathy E. Crosson of Weston & Sarno, Beverly Hills, Cal., for Todd Edward Long.

Robert A. Butterworth, Atty. Gen., and Peggy A. Quince, Asst. Atty. Gen., Tampa, for respondent.

James K. Green, West Palm Beach, amicus curiae for American Civil Liberties Union Foundation.

John K. Aurell and Sandra Bower Ross of Aurell, Radey, Hinkle & Thomas, Tallahassee, and Charles B. Ruttenberg, James P. Mercurio, John T. Mitchell and Jeanne Philbin of Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C., amicus curiae for Video Software Dealers Ass'n.

David W. Ogden, Donald B. Verrilli and Bruce J. Ennis of Jenner & Block, Washington, D.C., amici curiae for PHE, Inc. and Ultra Corp.

McDONALD, Justice.

We have for review State v. Long, 544 So.2d 219 (Fla. 2d DCA 1989), which expressly declared constitutional section 847.011, Florida Statutes (1985 & Supp.1986). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and approve the district court's decision.

The state charged Stall, Long, and several other persons with violating the Florida Racketeer Influenced and Corrupt Organization (RICO) Act, sections 895.01-.06, Florida Statutes (1985), predicated on forty-eight alleged violations of Florida's obscenity statute, section 847.011, Florida Statutes (1985), 1 and the amended version of the statute that took effect in 1986. 2 The state also charged each defendant individually with one or more counts of violating section 847.011. The violations allegedly occurred through the showing, sale, distribution, and rental of allegedly obscene writings and tapes, and objects allegedly intended for obscene purposes, between September 12, 1985 and March 7, 1987. Acting upon the petitioners' pretrial motion, the trial court dismissed the information and declared section 847.011 unconstitutional. The trial court held that, among other things, the statute violated Florida's privacy amendment, article I, section 23 of the Florida Constitution. 3 State v. Long, 544 So.2d at 220. The second district reversed, concluding "that the protection afforded by the Florida right to privacy provision does not shield the appellees from criminal prosecution." Id. at 222. Assuming that the petitioners have vicarious standing to raise their customers' privacy interest, id. at 221-222, we agree with the district court that their customers' right of privacy does not extend to the petitioners.

If an obscenity statute is constitutional, RICO convictions based on that statute can be upheld. Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 109 S.Ct. 916, 103 L.Ed.2d 34 (1989). This Court has consistently found section 847.011 to be constitutional. Johnson v. State, 351 So.2d 10 (Fla.1977), upheld a conviction for selling obscene magazines and reaffirmed the principles that obscenity is not protected by the first and fourteenth amendments and that it is subject to regulation under the police power of the states. In Sardiello v. State, 394 So.2d 1016 (Fla.1981), we again upheld the statute where the defendants had been charged with possession of obscene material with intent to sell. Moreover, we addressed the issue presented in the instant case in State v. Kraham, 360 So.2d 393 (Fla.1978), appeal dismissed, 440 U.S. 941, 99 S.Ct. 1415, 59 L.Ed.2d 630 (1979).

The state charged Kraham with selling obscene motion pictures. The trial court dismissed the charges, relying on Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), which held that the state's power to regulate obscenity "does not extend to mere possession by the individual in the privacy of his own home." Id. at 568, 89 S.Ct. at 1250. From that holding the trial court reasoned: "A regulation that criminally punishes one for providing that citizen with material he has a Constitutional right to possess is illogical and arbitrary." Kraham, 360 So.2d at 394. We reversed based on Johnson.

Stanley protects an individual's private possession of obscene materials, and our research discloses no Florida cases where the state prosecuted individuals merely for possessing obscene materials for their private use. 4 This is not to say, however, that our privacy amendment was meant to protect those persons who deal commercially in obscenity. The United States Supreme Court has never extended Stanley to sellers and distributors of obscene materials. Rather, that Court has consistently held that "deterrence of the sale of obscene materials is a legitimate end of state anti-obscenity laws." Fort Wayne Books, 109 S.Ct. at 925.

Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), sets the standards for state regulation of obscene material. First, "the permissible scope of such regulation" is confined "to works which depict or describe sexual conduct." Id. at 24, 93 S.Ct. at 2614-15. Then, the basic guidelines are:

(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.

Id. (Citations omitted.)

Subsection 847.001(7), Florida Statutes (Supp.1986), incorporates these standards:

(7) "Obscene" means the status of material which:

(a) The average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest;

(b) Depicts or describes, in a patently offensive way, sexual conduct as specifically defined herein; and

(c) Taken as a whole, lacks serious literary, artistic, political, or scientific value.

Subsection 847.001(11) defines sexual conduct:

(11) "Sexual conduct" means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.

The 1985 statute contained a similar standard:

For the purpose of this section, the test of whether or not material is obscene is: Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.

§ 847.011(11), Fla.Stat. (1985). Although the 1986 statute refers only to "obscene" material and then defines that term, the 1985 statute contained the term "obscene, lewd, lascivious, filthy, indecent, sadistic, or masochistic" material. § 847.011(1)(a) (1985). Those words, however, constitute a term of art. As stated by Justice Harlan almost thirty years ago:

The words ... "obscene, lewd, lascivious, indecent, filthy or vile," connote something that is portrayed in a manner so offensive as to make it unacceptable under current community mores. While in common usage the words have different shades of meaning, the statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex. Although the statute condemns such material irrespective of the effect it may have upon those into whose hands it falls, the early case of United States v. Bennett, 24 Fed.Cas. p. 1093, No. 14571, put a limiting gloss upon the statutory language: the statute reaches only indecent material which, as now expressed in Roth v. United States, supra, 354 U.S. at 489, 77 S.Ct. [1304] at 1311 [1 L.Ed.2d 1498 (1957) ], "taken as a whole appeals to prurient interest."

Manual Enterprises, Inc. v. Day, 370 U.S. 478, 482-84, 82 S.Ct. 1432, 1434-35, 8 L.Ed.2d 639 (1962) (emphasis in original, footnotes omitted). The Court recently recognized the continued validity of Justice Harlan's words in Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990). The statutes at issue are sufficiently limited, both by their terms and by common sense, to pass constitutional scrutiny.

Osborne also cautions that Stanley is not to be read too broadly. The United States Supreme Court has never done so and has specifically refused to extend Stanley to the sale and distribution of obscene material. E.g., Osborne; Fort Wayne Books; Miller; Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973); United States v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973). Indeed, that Court has specifically stated "that the protected right to possess obscene material in the privacy of one's home does not give rise to a correlative right to have someone sell or give it to others." 12 200-Foot Reels, 413 U.S. at 128, 93 S.Ct. at 2669.

The petitioners claim, however, that we should construe Florida's privacy amendment to protect sellers and distributors of obscene material because, without such extension, an individual's right to possess such material is meaningless. The privacy amendment states, in part, that each "person has the right to be let alone and free from governmental intrusion into his private life." Art. I, § 23, Fla. Const. We first considered this amendment in Winfield v. Division of Pari-Mutuel Wagering, 477...

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