State v. Beckman, 88-1764

• Citation: 14 Fla. L. Weekly 1621,547 So.2d 210
• Decision Date: 06 July 1989
• Docket Number: No. 88-1764,88-1764
• Parties: 14 Fla. L. Weekly 1621 STATE of Florida, Appellant, v. Phillip BECKMAN, Appellee.
• Court: Court of Appeal of Florida (US)

Page 210

547 So.2d 210

14 Fla. L. Weekly 1621

STATE of Florida, Appellant, v. Phillip BECKMAN, Appellee.

No. 88-1764.

District Court of Appeal of Florida,

Fifth District.

July 6, 1989.

Rehearing Denied Aug. 8, 1989.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Laura Griffin, Asst. Atty. Gen., Daytona Beach, for appellant.

W. Ford Duane of W. Ford Duane, P.A., Orlando, for appellee.

COBB, Judge.

We are called upon to review a trial court's dismissal of an information based upon a determination that section 827.071(5), Florida Statutes (1987) is facially unconstitutional. That statute provides:

It is unlawful for any person to knowingly possess any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, he knows to include any sexual conduct by a child. Whoever violates this subsection is guilty of a felony of third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The defendant Beckman was charged with knowing possession of a videotape which included sexual conduct by a child in violation of the foregoing statute. Beckman purchased the material from an undercover officer at a motel, which was not his home. It was stipulated by defense counsel that the videotape depicted the children, under the age of eighteen, involved in sexual acts, and that it violated the proscriptions of the statute.

The defendant moved to dismiss on the basis that the statute was unconstitutional, citing to Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). The defendant argued that Stanley prohibits the state from criminalizing mere private possession of obscene material.

The state sought to distinguish Stanley because it involved possession of obscenity in the privacy of one's home, whereas Beckman was not in his own home. The state contended Beckman therefore had no standing to attack the constitutionality of the statute under New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). Ferber dealt specifically with child pornography, and upheld the constitutionality of a criminal statute outlawing the promotion of sexual performances by minors through the distribution of material depicting such performances. The state also argued that child pornography, unlike other obscene material, is unprotected by the First Amendment and not encompassed by the holding in Stanley.

The trial court disagreed with the state and found that Stanley expressly forbids statutory prohibitions against the mere possession of any pornographic materials. Based upon the facial invalidity of the statute, the trial court dismissed the information and this appeal ensued.

We agree with the state. The controlling case is Ferber, not Stanley. In Ferber the United States Supreme Court held that child pornography is unprotected by the First Amendment and that states have greater leeway in regulating it than other obscenity or adult pornography. This is so because of the compelling state interest in the prevention of sexual exploitation of children and child abuse. The Stanley opinion did not concern child pornography.

As pointed out by the state, the United States Supreme Court has repeatedly refused to expand the holding of Stanley beyond the privacy of one's own home. ¹ Certainly it should not be expanded to include child pornography. As argued by the state:

Possession of child pornography, unlike adult pornography, is a sad guarantee that children have been and will be abused. It fuels the economic motive for production of child pornography and is an integral part of the production-distribution cycle.

The state emphasizes that the instant case does not involve the privacy of Beckman's home. Our decision here would be...