State v. Mayhew, No. 43575

CourtUnited States State Supreme Court of Florida
Writing for the CourtROBERTS; ERVIN; CARLTON, C.J., dissents and concurs with ERVIN; ERVIN; CARLTON
Citation288 So.2d 243
Decision Date19 December 1973
Docket NumberNo. 43575
PartiesSTATE of Florida, Appellant, v. Neil Emerson MAYHEW, Appellee.

Page 243

288 So.2d 243
STATE of Florida, Appellant,
v.
Neil Emerson MAYHEW, Appellee.
No. 43575.
Supreme Court of Florida.
Dec. 19, 1973.
Rehearing Denied Feb. 6, 1974.

Page 244

Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellant.

William J. Sheppard, Sheppard, Fletcher, Hand & Adams, Jacksonville, for appellee.

ROBERTS, Justice.

This cause is before us on direct appeal to review an order from the Circuit Court of Duval County granting appellee's motion to dismiss an information charging him with violating Section 847.04, Florida Statutes, F.S.A. (1971), and Section 843.01 (1971), and holding Section 847.04 unconstitutional

Page 245

thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution, as amended 1973, F.S.A.

Appellee was informed against for the use of profane, vulgar, and indecent language, to-wit: 'mother f_ _,' in a public place so as to be heard by others, contrary to the provisions of Section 847.04, Florida Statutes, and for resisting arrest with violence contrary to the provisions of Section 843.01, Florida Statutes, F.S.A. Pursuant to Rule 3.190(b), Florida Rules of Criminal Procedure, 33 F.S.A. appellee moved the trial court for an order dismissing the first and second counts of the information and stated as grounds therefor that the allegations of the information are so vague and indefinite and provide so little notice of the offenses sought to be charged that defendant is denied due process of law and that the statutes upon which the first and second counts of the information are based are so vague and indefinite that they violate the due process provisions of the Constitutions of the State of Florida and of the United States.

Having heard oral argument, the trial judge entered an order granting appellee's motion to dismiss the information charging him with violating Fla.Stat. § 847.04, F.S.A. (1971) and Fla.Stat. § 843.01, F.S.A. (1971). The trial court found Fla.Stat. § 847.04, F.S.A., which provides,

'Whoever, having arrived at the age of discretion, uses profane, vulgar And indecent language, in any public place; or upon the private premises of another, or so near thereto as to be heard by another, shall be guilty of a misdemeanor of the second degree, punishable as provided in § 775.082 or § 775.083; but no prosecution for any such offense shall be commenced after twenty days from the commission thereof.' e.s.

to be unconstitutional on its face as contrary to the guarantees of the First, Fifth and Fourteenth Amendments to the United States Constitution. The trial court stated in its order:

'Said statute by its language seeks only to punish spoken words. The statute can stand therefore only if it is limited in application to spoken words that have a direct tendency to cause acts of violence by the person to whom, individually, the words are addressed. See Chaplinsky v. New Hampshire, 315 U.S. 568 (, 62 S.Ct. 766, 86 L.Ed. 1031) (1942); Gooding v. Wilson, 40 U.S.L.W. 4329 (405 U.S. 518, 93 S.Ct. 1103, 31 L.Ed.2d 408) (March 23, 1972). To uphold a statute that does otherwise would invite law enforcement officials to suppress constitutionally protected conduct in the mistaken belief that such conduct is prohibited by the statute in question. The United States Supreme Court has consistently refused to uphold a penal statute when conduct protected by the First Amendment may be deemed to fall within the terms of its proscription. See, Edwards v. South Carolina, 372 U.S. 229 (, 83 S.Ct. 680, 9 L.Ed.2d 697) (1963); Stromberg v. California, 283 U.S. 359 (, 51 S.Ct. 532, 75 L.Ed. 1117) (1931); Cox v. Louisiana, 379 U.S. 536 (, 85 S.Ct. 476, 13 L.Ed.2d 487) (1965); Thornbill v. Alabama, (sic) 310 U.S. 88 (, 60 S.Ct. 736, 84 L.Ed. 1093) (1940); Winters v. New York, 333 U.S. 507 (, 68 S.Ct. 665, 92 L.Ed. 840) (1948).

'Examples of clearly protected conduct which would appear to violate the statute in question may be readily imagined. Since Fla. Stat. § 847.04 (1971) purports to prohibit activity which merits First Amendment protection, it is invalid on its face.

'The crucial terms of Fla.Stat. § 847.04 (1971)--'Profane, Vulgar, and Indecent' do not provide the fair warning to the public that due process requires.'

Relative to count two of the information, the trial court concluded:

'Defendant is charged with violating Fla.Stat. § 843.01 (1971) in that he resisted arrest for an alleged violation of Fla.Stat. § 847.04 (1971). Inasmuch as

Page 246

this court holds that Fla.Stat. § 847.04 is unconstitutional it thus follows that defendant's arrest was unlawful and he can not be held criminally liable for resisting an unlawful arrest. See, Russo v. State, 270 So.2d 428 (Fla.4th DCA 1972); Roberson v. State, 43 Fla. 166, 29 So. 535 (1901); Waller v. City of St. Petersburg, 245 So.2d 685 (Fla.2d DCA 1971); 3 Fla.Jur., Arrest § 39.'

We disagree with the trial court and find that the statutory provision in question is neither impermissibly vague nor unnecessarily overbroad, nor does it violate the First Amendment to the Constitution of the United States. The right of free speech as guaranteed by the First Amendment to the Constitution of the United States is not an absolute right. Schenk v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919); Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095 (1927); Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931); Dejonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937); Cantwell et al. v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Recognizing that freedom of speech is among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action, 1 we are also fully cognizant that obscene speech is not guaranteed by either the Federal or Florida Constitutions. Chaplinsky v. New Hampshire, supra, Nixon v. State, 178 So.2d 620 (Fla.App.1965), the Supreme Court of the United States denied certiorari at 385 U.S. 853, 87 S.Ct. 97, 17 L.Ed.2d 81 (1966). In Chaplinsky, supra, the Supreme Court upheld the constitutionality of a state law similar to the statute in question, sub judice, against charges of vagueness and violation of the First and Fourteenth Amendment guarantee of freedom of speech. That statute provided:

'No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.'

Therein, the court announced:

'Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly out-weighed by the social interest in order and morality. 'Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.' Cantwell v. Connecticut, 310 U.S. 296, 309, 310, 60 S.Ct. 900, 84 L.Ed. 1213.

'On the authority of its earlier decision, the state court declared that the statute's purpose was to preserve the public peace, no words being 'forbidden except such as have a direct tendency to cause acts of violence by the persons to whom, individually, the remark is addressed.' It

Page 247

was further said: 'The word 'offensive' is not to be defined in terms of what a particular addressee thinks. . . . The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. . . . The English language has a number of words and expressions which by general consent are 'fighting words' when said without a disarming smile. . . . Such words, as ordinary men know, are likely to cause a fight. So are threatening, profane or obscene revilings. Derisive and annoying words can be taken as coming within the purview of the statute as heretofore interpreted only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace. . . . The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitutes a breach of the peace by the speaker--including 'classical fighting words', words in current use less 'classical' but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats.'

'We are unable to say that the limited scope of the statute as thus construed contravenes the Constitutional right of free expression. It is a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace. Cf. Cantwell v. Connecticut, 310 U.S. 296, 311, 60 S.Ct. 900, 84 L.Ed. 1213; Thornhill v. Alabama, 310 U.S. 88, 105, 60 S.Ct. 736, 84 L.Ed. 1093. This conclusion necessarily disposes of appellant's contention that the statute is so vague and...

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15 practice notes
  • Sarasota County v. Barg, Nos. 44028--44030
    • United States
    • United States State Supreme Court of Florida
    • April 19, 1974
    ...or disorderly conduct. Cf. Gonzales v. City of Belle Glade, Fla., 287 So.2d 669, Opinion filed Dec. 20, 1973; State v. Mayhew (Fla.1973), 288 So.2d 243; Smith v. State (Fla.1970), 237 So.2d 139; Orlando Sports Stadium, Inc. v. State ex rel. Powell (Fla.1972), 262 So.2d 881, 884; Chesebrough......
  • Town of Lantana v. Pelczynski, No. 73-1066
    • United States
    • Court of Appeal of Florida (US)
    • February 28, 1974
    ...specific situations it may be required to yield to valid state or local interests springing from public necessity. See State v. Mayhew, 288 So.2d 243 (Fla.1973); Stephens v. Stickel, 146 Fla. 104, 200 So. 396 (1941); Lieberman v. Marshall, 236 So.2d 120, Fla.1970; 6 Fla.Jur., Constitutional......
  • Meeks v. Dugger, No. 71947
    • United States
    • United States State Supreme Court of Florida
    • April 11, 1991
    ..."by a bald judicial amendment similar to a legislative enactment." Brown v. State, 358 So.2d 16, 20 (Fla.1978) (quoting State v. Mayhew, 288 So.2d 243, 252 (Fla.1973) (Ervin, J., dissenting)). A bald judicial amendment is precisely what Songer 6 The state argues that Lockett and Hitchcock s......
  • State v. Florida Nat. Properties, Inc., No. 45787
    • United States
    • Florida Supreme Court
    • July 14, 1976
    ...McKibben v. Mallory, 293 So.2d 48 (Fla.1974); Burnsed v. Seaboard Coast Line R. Co., 290 So.2d 13 (Fla.1974); State v. Mayhew, 288 So.2d 243 (Fla.1973). 'It is elementary that . . . if fairly possible a statute should be construed to avoid . .. an unconstitutional interpretation,' State ex ......
  • Request a trial to view additional results
15 cases
  • Sarasota County v. Barg, Nos. 44028--44030
    • United States
    • United States State Supreme Court of Florida
    • April 19, 1974
    ...or disorderly conduct. Cf. Gonzales v. City of Belle Glade, Fla., 287 So.2d 669, Opinion filed Dec. 20, 1973; State v. Mayhew (Fla.1973), 288 So.2d 243; Smith v. State (Fla.1970), 237 So.2d 139; Orlando Sports Stadium, Inc. v. State ex rel. Powell (Fla.1972), 262 So.2d 881, 884; Chesebrough......
  • Town of Lantana v. Pelczynski, No. 73-1066
    • United States
    • Court of Appeal of Florida (US)
    • February 28, 1974
    ...specific situations it may be required to yield to valid state or local interests springing from public necessity. See State v. Mayhew, 288 So.2d 243 (Fla.1973); Stephens v. Stickel, 146 Fla. 104, 200 So. 396 (1941); Lieberman v. Marshall, 236 So.2d 120, Fla.1970; 6 Fla.Jur., Constitutional......
  • Meeks v. Dugger, No. 71947
    • United States
    • United States State Supreme Court of Florida
    • April 11, 1991
    ..."by a bald judicial amendment similar to a legislative enactment." Brown v. State, 358 So.2d 16, 20 (Fla.1978) (quoting State v. Mayhew, 288 So.2d 243, 252 (Fla.1973) (Ervin, J., dissenting)). A bald judicial amendment is precisely what Songer 6 The state argues that Lockett and Hitchcock s......
  • State v. Florida Nat. Properties, Inc., No. 45787
    • United States
    • Florida Supreme Court
    • July 14, 1976
    ...McKibben v. Mallory, 293 So.2d 48 (Fla.1974); Burnsed v. Seaboard Coast Line R. Co., 290 So.2d 13 (Fla.1974); State v. Mayhew, 288 So.2d 243 (Fla.1973). 'It is elementary that . . . if fairly possible a statute should be construed to avoid . .. an unconstitutional interpretation,' State ex ......
  • Request a trial to view additional results

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