Simmons v. State of FloridaSimmons v. State of Florida
- Reporters:
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- Before:
- Polston
Appellant Michael John Simmons brings facial constitutional challenges against criminal statutes sections
In the early morning hours of July 1, 2002, a Columbia County Deputy Sheriff entered an Internet chat room, titled “I like older men,” posing as a 13-year old girl named “Sandi.” An on-line conversation ensued between Sandi and appellant,
Appellant was charged in count one with luring or enticing a child by use of an on-line service, in violation of section
Following hearings on appellant‘s motions to dismiss, the trial court denied the motions. After the trial court ruled, appellant pled no contest to counts one and two of the information, reserving his right to appeal the denial of his dispositive motions to dismiss.1 Appellant was sentenced to two concurrent five-year terms of probation. We affirm the trial court‘s ruling rejecting the dormant commerce clause challenge against section
I.
Appellant challenges section
(1) For purposes of this section:
(a) “Known by the defendant to be a minor” means that the defendant had actual knowledge or believed that the recipient of the communication was a minor.
(b) “Transmit” means to send to a specific individual known by the defendant to be a minor via electronic mail.
(2) Notwithstanding ss. 847.012 and 847.0133, any person in this state who knew or believed that he or she was transmitting an image, information, or data that is harmful to minors, as defined in s. 847.001, to a specific individual
known by the defendant to be a minor in this state commits a felony of the third degree, punishable as provided in s. 775.082, s. 775,083, or s. 775.084. (3) Notwithstanding ss. 847.012 and 847.0133, any person in any jurisdiction other than this state who knew or believed that he or she was transmitting an image, information, or data that is harmful to minors, as defined in s. 847.001, to a specific individual know by the defendant to be a minor in this state commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(Emphasis added). Relevant definitions, provided in section
(1) “Adult” means a person 18 years of age or older.
...
(6) “Harmful to minors” means any reproduction, imitation, characterization, description, exhibition, presentation, or representation, of whatever kind or form, depicting nudity, sexual conduct, or sexual excitement when it:
(a) Predominantly appeals to the prurient, shameful, or morbid interest of minors;
(b) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
(c) Taken as a whole, is without serious literary, artistic, political, or scientific value for minors.
Appellant contends that section
Appellant argues that because section
“The state has a compelling interest in protecting the physical and psychological well-being of children, which extends to shielding minors from material that is not obscene by adult standards, but the means must be carefully tailored to achieve that end so as not to unnecessarily deny adults access to material which is indecent (constitutionally protected), but not obscene (unprotected). See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244-45, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002); Sable Communications, 492 U.S. at 130-31, 109 S.Ct. 2829, 106 L.Ed.2d 93.” Cashatt v. State, 873 So.2d 430, 434 (Fla. 1st DCA 2004); see also Reno v. ACLU, 521 U.S. 844, 875, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (stating that the Court has “repeatedly” recognized the government‘s interest in protecting children from harmful materials, citing Ginsberg v. New York, 390 U.S. 629, 639, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) and FCC v. Pacifica Found., 438 U.S. 726, 749, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978)); Morris v. State, 789 So.2d 1032, 1036 (Fla. 1st DCA 2001) (en banc) (holding that a defendant committed a lewd or lascivious act by telling a child that he desired to engage her in oral sex, using language which described this in a graphic manner; the dissent opined that the majority‘s construction of the lewd or lascivious statute was “outlawing speech” and should be more narrowly construed to not apply to speech so it would not be unconstitutional). Appellant does not argue that the government lacks a compelling interest, but asserts that section
Appellant argues that section
Much of the constitutional discussion by the parties and by my respected colleague, Judge Browning, in his dissent,3 involves
Section
Appellant relies predominately on Reno, 521 U.S. at 875, 117 S.Ct. 2329 (declaring the Communications Decency Act of 1996 unconstitutional), and argues that the government‘s interest in protecting children “does not justify an unnecessarily broad suppression of speech addressed to adults.” “[T]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.” Id. (quoting Bolger v. Youngs Drug Prods., Corp., 463 U.S. 60, 74-75, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983)). The Court stated that it was an “incorrect factual premise that prohibiting a transmission whenever it is known that one of its recipients is a minor would not interfere with adult-to-adult communication.” Id. at 876, 117 S.Ct. 2329. Given the size of potential audiences for most messages, the Court noted that under the Act, the “sender must be charged with knowing that one or more minors will likely view it,” and thus communication among adults would be burdened. Id. “The Government agrees that these provisions are applicable whenever `a sender transmits a message to more than one recipient, knowing that at least one of the specific persons receiving the message is a minor.‘” Id. at 876 n. 42, 117 S.Ct. 2329.
We agree with the State that Florida‘s law differs from the federal law at issue in Reno because section
Adults may address communications directly to other adults, and to a large group, without violating section
II.
We are not persuaded by appellant‘s argument that the statute is “impermissibly vague” because the statute applies to minors without attempting to classify materials differently for older age groups. See People v. Hayne, 2002 WL 470853, at *5 (Cal.App. 5th Dist.2002) (rejecting the same argument that a statute is vague; “Appellant‘s argument that matter may be harmful to a five-year old but not to a 17 year old has no merit. It is within the Legislature‘s power to determine that certain matter is harmful for all minors. There is no indication that the definition of harmful matter will change depending on the age of the minor.“). The Legislature has the responsibility and authority to protect all of our children, even the older ones. See Jones v. State, 640 So.2d 1084, 1085-87 (Fla.1994) (holding that Florida‘s statutory rape provision is constitutional even though the teenage girls consented; rejecting the argument that minors’ rights of privacy “vitiate the legislature‘s efforts and authority to protect minors from conduct of others“; the “State has the prerogative to safeguard its citizens, particularly children, from potential harm when such harm outweighs the interests of the individual“). Therefore, we decline to rule that additional statutory distinctions should be made for different age groups as held by the Third Circuit in ACLU v. Ashcroft, 322 F.3d 240 (3rd Cir.2003), aff‘d and remanded, ___ U.S. ___, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004).6
In arguing that the statute is vague, appellant further cites Ashcroft, noting that the Third Circuit Court of Appeals held that the Child Online Protection Act is unconstitutional because the “harmful to minors” language is vague. Id. at 251-53. The “harmful material” is to be reviewed “as a whole,” and the court ruled that because the Child Online Protection Act “mandates evaluation of an exhibit on the Internet in isolation, rather than in context” of the work as a whole, it is not narrowly tailored. Id. Because section
III.
Appellant also challenges section
We do not agree with appellant‘s argument that section
The Communications Decency Act,
Appellant makes no argument that section
Conclusion
Therefore, we reject appellant‘s facial constitutional challenges against sections
AFFIRMED.
HAWKES, J. concurs; BROWNING, J., concurring in part and dissenting in part by Separate Opinion.
BROWNING, J., concurring in part and dissenting in part.
I concur with the majority opinion as it applies to section
I dissent because contrary to the majority opinion, section
Strict Scrutiny
The majority recognizes that the prohibited expression covered by section
The majority finds that section
The majority opines that Appellee did not make the foregoing concession in its brief. I disagree. Statements in Appellee‘s answer brief belie the majority‘s conclusion. At pages 3, 16, and 25, respectively, Appellee states: “Similarly, the overbreadth concerns expressed in ACLU v. Ashcroft, 322 F.3d 240 (3rd Cir.2003) in regard to the definition of `harmful to minor’ are not applicable to this statute that regulates personal, one-on-one e-mail communication“; “In comparison, § 847.0138, Fla. Stat. (2002) regulates only personal, one-on-one e-mail transmissions“; and ” § 847.0138, Fla. Stat. (2002) is not overbroad, but narrowly tailored to prohibit the transmission of harmful materials to a known minor by personal, one-on-one e-mail communication.” Thus, the concession was made, and the majority‘s refusal to acknowledge its existence does not alter this fact. Furthermore, during oral argument this point was addressed with counsel for Appellee, who was asked in substance: “Unless we interpret section 847.0138‘s definition of `electronic mail’ to be limited to personal one-on-one e-mail, is the statute constitutional?” to which he replied “no.” Notwithstanding this concession, the majority fails to include such interpretation in its opinion yet finds, what Appellee will not defend, that section
The majority, for its “fall-back position,” opines that, even if made, Appellee‘s concession is erroneous, and the court does not have to accept it, citing Perry, 808 So.2d at 268 as authority. In my judgment, this principle is limited to special circumstances, as in Perry, because concessions are highly favored, and it is extremely rare when any court fails to accept a concession when fairly made by competent counsel, as here. This is a high-profile case, and Appellee‘s concession necessarily included a determination by the Attorney General‘s staff, after considerable consideration, that the law is sufficiently clear on this issue for counsel to anticipate that this court would not find § 847.0138 constitutional unless it was limited to one-on-one e-mail. In the past, I have written in opposition to this Court‘s occasional proclivity to refuse to accept a counsel‘s concession. See Reed v. State, 783 So.2d 1192 (Fla. 1st DCA 2001), quashed, 837 So.2d 366 (Fla.2002). In Reed, I stated, and it is equally applicable here:
It appears to me the majority is unwarranted substituting its judgment for that of the attorney for the State. Such action entails the risk of this court‘s being perceived in a non-neutral manner and injects it into an area well-defined and preserved for that of the advocate. I fear that in the future, attorneys will be hesitant to concede error, as here, because of the potential for embarrassment that will necessarily flow when this court points out what it concludes to be an erroneous concession from time to time. Such overruling of the professional judgment of lawyers should occur only when the procedures and jurisdiction of this court are a consideration, and when recognition of a concession effects a repudiation of an established precedent of this court. Clearly, the efficient administration of justice can best be served by approval of concessions by attorneys, except in such limited circumstances. I further feel that an
attorney for a party is more likely than a panel of this court to evaluate correctly a substantive point of law as to whether or not a concession should be made in a case.
The majority disregards the “heckler veto” by its sweeping statement at footnote 5 of the majority opinion that: “There is no heckler veto ... because the statute only applies to communications specifically sent to minors.” Such statement implies a misunderstanding of a “heckler‘s veto‘s” composition. If a minor is an unknown member of a chat room, an over-zealous guardian of perceived “incorrect expression” need only notify all the members of a chat room of the name and minority of a minor member of such chat room to make any future messages subject to the sweep of
Notwithstanding the foregoing, the definition of a “minor” in section
An examination of specific subjects highlights the “draconian impact” of section
Moreover, the constitutional infirmities in defining a “minor” as one under 18 years of age in section
COPA defines the term minor as “any person under 17 [seventeen] years of age.” Id. § 231(e)(7).[FN 15] The statute does not limit the term minor in any way, and indeed, in its briefing, the Government, in complete disregard of the text, contends that minor means a “normal, older adolescent.” Orig. Gov‘t Br. At 32; Gov‘t Br. on Remand at 27-28; Gov‘t Reply Br. On Remand at 4-5. We need not suggest how the statute‘s targeted population could be more narrowly defined, because even the Government does not argue, as it could not, that materials that have “serious literary, artistic, political or scientific value” for a sixteen-year-old would have the same value for a minor who is three years old. Nor does any party argue, despite Congress‘s having targeted and included all minors seventeen or under, that pre-adolescent minors (i.e., ages two, three, four, etc.) could be patently offended by a “normal or perverted sexual act” or have their “prurient interest” aroused by a “post-pubescent female breast,” or by being exposed to whatever other material may be designed to appeal to prurient interests.
Id. at 253-54, 122 S.Ct. 1389 (underlining added).
I well realize that enforcement in such situations is subject to the discretion of the particular enforcer, but that is the very reason for the “narrowly tailored” doctrine. People are entitled to exercise freedom of expression in an expansive manner, and section
The majority discounts the precedential impact of Ashcroft on the basis that the statute there did not contain a provision, as does section
The majority bases its determination that the definition of “minor” in section
In Hayne the court construed section 288.2 Cal.Code Annotated, which provides:
§ 288.2 Harmful matter sent with intent of seduction of minor.
(a) Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including, but not limited to, live or recorded telephone messages, any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor, is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail. [Emphasis added]
Plainly, a person can be convicted under such provision for furnishing “harmful matter” to a “minor” only if it is combined “with the intent of arousing, appealing to or gratifying the lust or passions or sexual desires of that person or of a minor,” and “with intent or for the purpose of seducing a minor.” The requirement of intent to sexually arouse and gratify and to seduce a minor provides a common threat of harm throughout minority and supports state action. In contrast, section
Although the foregoing reasons should preclude the majority‘s use of Hayne as an authority, there are more provisions of the California Code, omitted from section
The constitutional significance of the intent elements of section 288.2, when combined with the affirmative defenses to its implementation, was directly addressed by the Hayne court as follows:
Section 288.2 only criminalizes the transmission of harmful matter to a known minor, with the intent to arouse the minor‘s sexual desires and with the intent to seduce the minor. The narrow scope of the statute does not infringe upon the dissemination of constitutionally protected speech. For example, it does not prevent adults from transmitting indecent messages to each other. (Hsu, supra, at pp. 988-989, 99 Cal.Rptr.2d 184). The narrowness of the statute distinguished it from the statute at issue in Reno. The CDA did not require the accused to transmit material with the dual intent of arousing the sexual
desires of the person or of a minor and of seducing the minor. (Id. at pp. 989-990, 99 Cal.Rptr.2d 184.) Moreover, the statute‘s built-in affirmative defenses, further limits the statute‘s reach. Section 288.2 expressly provides for defenses where a parent transmits harmful material to aid legitimate sex education, or where an adult transmits the material in aid of legitimate scientific or educational purposes. (§ 288.2, subds.(c) & (d)). The narrowness of the statute allowed it to survive a First Amendment challenge. (People v. Hsu, supra, 82 Cal.App.4th at pp. 988-990, 99 Cal.Rptr.2d 184).
From the above language I conclude that the statute‘s intent provisions and affirmative defenses are essential to the court‘s finding that section 282.2 is narrowly tailored. Accordingly, because section
The majority dismisses the foregoing distinctions of California law as a “red herring” because of the definition of “harmful to minors” contained in
In a similar vein the majority dismisses my metaphorical reference to the statue of David. I stand by that analogy. There are profound differences between the age levels of minority. Can it be seriously argued that the sexuality of a six-year old is not radically different from a 17-year old? If not, I would not publish this dissent that in large part is predicated on the legislature‘s failure to consider such obvious differences of minority age levels.
Overbreadth
Section
Vagueness
Also, section
This principle was also specifically addressed by the Ashcroft court as follows:
COPA‘s definition of “minor” includes all children under the age of seventeen, as we have noted. Because the statute‘s definition of minor is all-inclusive, and provides no age “floor,” a Web publisher will be forced to guess at the bottom end of the range of ages to which the statute applies. The fearful Web publisher therefore will be forced to assume, and conform his conduct to, the youngest minor to whom the statute conceivably could apply. We cannot say whether such a minor would be five years of age, three years, or even two months. Because we do not think a Web publisher will be able to make such a determination either, we do not think that they have fair notice of what conduct would subject them to criminal sanctions under COPA. As a result of this vagueness, Web publishers will be deterred from engaging in a wide range of constitutionally protected speech. The chilling effect caused by this vagueness offends the Constitution.
Ashcroft, 322 F.3d at 268 n. 37.
Clearly, that rationale applies to section
Commerce Clause
Finally, in my judgment section
The U.S. Supreme Court promulgated the standard for determining whether a state regulation violates the Commerce Clause:
If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.
PSINet, Inc v. Chapman, 362 F.3d 227, 255 (4th Cir.2004) (Niemeyer, J., dissenting), quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970) (emphasis added).
In my judgment the impact of section
Conclusion
As always, when a statute is enacted for the protection of minors, one is hesitant to determine the effort to be unconstitutional. However, high motive does not equal constitutional compliance. The legislature in its drafting of section
As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.
In my judgment, section
For these reasons, I dissent from the majority opinion relating to section