State v. Keaton

• Decision Date: 10 May 1979
• Docket Number: No. 54359,54359
• Citation: 371 So.2d 86
• Parties: STATE of Florida, Appellant, v. Scotty KEATON, Appellee.
• Court: Florida Supreme Court

Page 86

371 So.2d 86

STATE of Florida, Appellant, v. Scotty KEATON, Appellee.

No. 54359.

Supreme Court of Florida.

May 10, 1979.

Jim Smith, Atty. Gen., and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellant.

Steven G. Brady, Fort Pierce, for appellee.

SUNDBERG, Justice.

Appellee was charged by information under section 365.16(1)(a), Florida Statutes (1977), ¹ with making a "comment or suggestion which is obscene, lewd, lascivious, filthy, or indecent" to another by means of telephone communication. Appellee filed a motion to dismiss the information in the County Court for Okeechobee County, alleging that the charging statute is overbroad and violative of his right to free speech. ² The county court granted appellee's motion to dismiss and this appeal followed. Because the lower court initially and directly passed upon the validity of a state statute, we have jurisdiction. Art. V, § 3(b)(1), Fla.Const. The issue before us is whether section 365.16(1)(a), Florida Statutes (1977), suffers from the infirmity of overbreadth under both the Florida and federal constitutions.

Appellee argues that section 365.16(1)(a) is not limited to language which is "obscene" as defined by Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) language which, taken as a whole, appeals to one's prurient interest, portrays sexual conduct in a patently offensive way, and lacks serious literary, artistic, scientific, or political value. Rather, appellee submits that the enactment proscribes the mere use of distasteful language over the telephone. This is so because an expression may be obscene according to the Dictionary definition without appealing to the prurient interest and, thus, without falling within the Legal definition of "obscenity" enunciated in Miller. See Hess v. Indiana, 414 U.S. 105, 107, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973). Because the first amendment does not permit the state to prohibit the use of vulgar language without more, subsection (1)(a) is impermissibly overbroad. Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); Brown v. State, 358 So.2d 16 (Fla.1978); Spears v. State, 337 So.2d 977 (Fla.1976). Appellee argues further that if the enactment is directed solely to language defined as obscene under Miller, it is overbroad because its proscriptions are not limited to nonconsensual telephone calls where the listener has been subjected to the uninvited use of such language. To outlaw obscene language where both the caller and listener have consented to its use constitutes an invasion of the parties' right to free speech.

Appellant argues that although the express terms of subsection (1)(a) proscribe only obscene comments in a telephone conversation, we should read that provision in pari materia with parts (b) through (d) of the statute. When read in conjunction with the remainder of the enactment, posits appellant, it is clear that subsection (1)(a) is intended to prohibit the use of obscene language With the intent to harass the listener. In support of its construction of subsection (1)(a), appellant points to the title of chapter 69-25, Laws of Florida, enacted as section 365.16, which reads: "AN ACT relating to obscene, harassing And threatening telephone calls . . . ." (e.s.) Because section 365.16(1)(a) is directed to conduct obscene phone calls which are harassing rather than at pure speech, submits appellant, the provision is not violative of appellee's first amendment freedom of speech. Further, because subsection (1)(a) is limited to nonconsensual telephone calls, it constitutes a valid legislative attempt to protect the substantial privacy interests of the listener, whether it proscribes only language defined as obscene under Miller or encompasses vulgar language as well.

For the following reasons we conclude that section 365.16(1)(a), Florida Statutes (1977), is unconstitutionally overbroad and, therefore, the county court properly granted appellee's motion to dismiss.

Fundamental principles of statutory construction dictate that an enactment should be interpreted to render it constitutional if possible. ³ However, the courts may not vary the intent of the legislature with respect to the meaning of the statute in order to effect this result. See Deltona Corp. v. Florida Public Service Commission, 220 So.2d 905 (Fla.1969); Florida State Racing Commission v. McLaughlin, 102 So.2d 574 (Fla.1958); Dade Federal Savings & Loan Association v. Miami Title & Abstract Division, 217 So.2d 873 (Fla.3d DCA 1969). The intent of the legislature with regard to the scope of section 365.16(1)(a) is arguably unclear. As noted by appellant, the title of the act is cast in the conjunctive "obscene, harassing And threatening telephone calls" (e. s.) which lends support to its contention that subsection (1)(a) is intended to proscribe obscene telephone calls which are also harassing. However, the legislatively supplied heading for section 365.16 is cast in the disjunctive and reads: "obscene Or harassing telephone calls." (e. s.) Further, subsection (1) is divided into four distinct parts, each of which is also expressed in the disjunctive. Finally, the express terms of (1)(a) are directed solely to obscene comments, while parts (b) through (d) relate to harassing calls with no mention of the use of obscene language. Both the heading of section 365.16 and its composition, therefore, indicate that the legislature intended that it cover two distinct areas the making of obscene comments on the one hand, And the specified use of the telephone to annoy, abuse, threaten, or harass the person called, on the other.

In order to construe subsection (1)(a) as suggested by appellant, it would be necessary to read the term "or" in the heading of section 365.16 as "and." Furthermore, we would have to find that the element of intent to harass contained in parts (b) through (d) is, by implication, an element of part (a). Our courts have engaged in such an interpretation only when necessary to effectuate the clear intent of the legislature; when, for example, a literal reading of the statute would render it meaningless. Pompano Horse Club, Inc. v. State ex rel. Bryan, 93 Fla. 415, 111 So. 801 (1927); Dotty v. State, 197 So.2d 315 (Fla. 4th DCA 1967); Pinellas County v. Woolley, 189 So.2d 217 (Fla.2d DCA 1966). Because appellant's tendered construction of section 365.16(1)(a) is contrary to the intent of our lawmakers, however, we cannot engage in the suggested rewriting of terms. Moreover, a reading of parts (a) through (d) of subsection (1) as distinct provisions does not render the statute meaningless. In McCall v. State, 354 So.2d 869 (Fla.1978), we declined a similar invitation to read an element of one part of a statute into another portion of the enactment when the two parts were separated by the disjunctive "or." We considered whether section 231.07, Florida Statutes (1975), infringes upon the first amendment right of free speech. That statute provides:

Any person who upbraids, abuses or insults any member of the instructional staff on school property or in the presence of the pupils at a school activity, Or any person not otherwise subject to the rules and regulations of the school who creates a disturbance on the property or grounds of any school, who commits any act that interrupts the orderly conduct of a school or any activity thereof shall be guilty of a misdemeanor of the second degree, punishable as provided by law. This section shall not apply to any pupil in or subject to the discipline of a school. (Emphasis supplied.)

After acknowledging the constitutional directive that speech may not be prohibited unless the manner of its expression is incompatible with the normal activity of a particular place at a particular time, ⁴ we noted that the enactment contained two distinct parts, one of which violated this directive:

The first portion of Section 231.07, under which the appellant was convicted, requires proof that a member of the instructional staff was upbraided, abused, or insulted, on school property, or in the presence of pupils at a school activity. ³ There is no language tying the prohibited expression to disruption of normal school activities at specific fixed times.

3 This portion of the statute is joined to the remaining portions by the disjunctive "or" and must therefore be treated separately.

. . . We note that all other provisions of this statute require expressive activity designed to disturb the school atmosphere.

354 So.2d at 872 (emphasis supplied). Thus, because the first and second portions of section 231.07 were separated by the disjunctive "or," we could not read the element of disruption contained in the second part into the preceding provision in order to render it constitutional. The composition of the statute before us even more strongly militates against reading the element of "intent to harass" in subsection (1)(b) through (d) into subsection (1) (a). Not only did the legislature use the disjunctive "or" in section 365.16, as it did with the statute in McCall, but it also separated subsection (1) of the enactment into four distinct, lettered provisions.

Because the scope of section 365.16(1)(a) is not limited to cases where the listener does not consent to use of the proscribed language, a citizen reading the provision might reasonably believe that it criminalizes telling an "off-color joke" to a willing listener or forbids a sexually oriented conversation between lovers. Such a prohibition constitutes a violation of the first amendment freedom of speech. Even if subsection (1)(a) is construed to encompass only language defined as obscene under Miller v. California, the enactment is nevertheless violative of this first amendment right because it does not contain the essential qualifying element an unwilling listener. Our conclusion in this regard is grounded upon the decision of the United States Supreme Court in Stanley v....