*1 Missouri, Respondent, STATE of MOORE, Appellant.
Charles E.
No. SC 84495. Missouri,
Supreme Court of
En Banc.
Nov.
Rehearing Denied Dec. Galloway, Springfield, Ap-
Bruce H. for pellant. Myers,
T. Brian Risley, Todd D. Darrell Moore, County L. Green Prosecutor’s Of- fice, Springfield, Respondent. WOLFF, Judge. MICHAEL A. Charles E. Moore was convicted of misconduct, third-degree sexual a crime per- when “solicits another committed one conduct son *2 house, his to things these that chance to do in which he knows his circumstances “I know.” T.N.F. likely replied to cause which she don’t request solicitation point. Be- or alarm.” Section 566.095.1 “scared” at this affront said she was restaurant, appeal challenges the statute on told leaving Moore’s Moore fore if infringement face as an unconstitutional her told its he would kill she T.N.F. that speech.2 right on the of free anybody about the conver- her mother or sation. Because the sexual contact that Moore 13-year-old would—if
requested girl two the restaurant Moore returned to statutory sodomy, the re- engaged in—be Moore, she days T.N.F. saw later. When in he occurred circumstances knew quest and and told someone upset afraid became likely alarm. were to cause affront or On at the about the conversation restaurant Moore, age 61, appeal, does chal- Shortly days two earlier. with Moore that his of a 13- lenge fact solicitation thereafter, arrived. After read- police year-old girl to in oral sex did ing Moore his Miranda rights, Officer Cal- cause afiront or alarm. houn, department, Springfield police allegations Moore about the spoke raised with
Though free-speech concerns
During
that
solicited sex from T.N.F.
require
Moore
to be read nar-
he
statute
conversation,
is not
Moore admitted to Offi-
rowly,
reading
that
so narrow as to
his criminal
that
had a conversation
relieve Moore of
conviction.
cer Calhoun
he
specifically
and
had
with T.N.F. about sex
judgment
is affirmed.
given
if
ever
head
asked her
“she had
Facts
eating
out.”
had she ever been
out-eaten
Spring-
Moore entered a restaurant
However, Moore denied that he asked
field,
Missouri on
2000. A
November
him to teach her how
T.N.F. if she wanted
frequent patron of the
for
restaurant
sev-
soliciting or
perform
to
oral sex and denied
months,
affectionately
eral
Moore was
from T.N.F.
requesting sex
“Grandpa” by
employees
called
and
Moore,
then arrested
Officer Calhoun
patrons
fellow
of the restaurant. One
misconduct
who was convicted
employee
13-year-old girl,
such
was
misdemeanor,
in a trial
degree,
the third
T.N.F.,
family
whose
owns the restaurant.
He
sen-
jury.
-without a
was
court
During
on
the course
a conversation
re-
years’ probation
tenced
two
and
4, 2000,
T.N.F. if
November
Moore asked
See
register as a sex offender.
quired to
dancer,
good
was a
which T.N.F.
she
section 589.400.
yes.
answered
Moore then told T.N.F.
Standing
the Constitution-
Moore’s
go
give
that she could
home
him and
with
Challenge
al
lap
him a
dance. Moore
T.N.F. if
asked
sex,”
the statute renders
argues
had
had
to which T.N.F.
Moore
she
“ever
array
speech
that she had not. Moore fol-
criminal a broad
answered
cites,
He
constitutionally protected.
if
up by asking T.N.F.
she “ever
lowed
ACLU,
844, 117
Reno
example,
T.N.F.
gave head or been eaten out.”
(1997),
head” or S.Ct.
interpreted
“giving
the terms
Supreme Court
oral sex. which the United States
“been eaten out” as references to
prohibiting
a federal statute
would have a
struck down
Moore told T.N.F.
she
challenges
validity
2.
Moore
are to
Because
1. All references
RSMo.
statute,
appel-
this Court has exclusive
state
Const,
V,
jurisdiction.
art.
late
Mo.
“indecent”
“patently
offensive” com-
constitutionality of section 566.090. The
munications on the Internet.
If
United
what the
States
Court has held
that,
prohibits
speech
justiciability
sexual con-
standards of
tent,
Article III of the United
making
such
States Constitu
a criminal act
*3
applicable
courts,
tion
to
federal
par
would violate the First Amendment to the
ties cannot
standing
concede
and courts
United
I,
States Constitution and Art.
sec.
Id,.3
have an obligation
satisfy
to
themselves
of8
the Missouri Constitution.
parties
that the
standing;
have
see Bender
Moore raises a First Amendment
Dist.,
v. Williamsport Area School
475
challenge to the statute “on its face.”
534, 541,
1326,
U.S.
106 S.Ct.
89 L.Ed.2d
Moore does
challenge
the statute as it
(1986).
501
For
purposes,
this Court’s
conduct,
may apply to his own
but as it
state’s
at
concession
least bolsters Moore’s
applies to
speech
activities of others.
argument.
FW/PBS,
See also
Inc. v. Dal
Usually, a person
standing
lacks
to attack
las,
215, 230-31,
596,
493 U.S.
110 S.Ct.
the validity of a
grounds
statute on
of how
(1990).
In this case the state concedes that
Broadrick,
plainly legitimate sweep.”
413
Moore
does have standing
challenge
the U.S. at
3. The First Amendment to the pairing speech, United States by the freedom of no matter Constitution, applicable made by to the states every per- what means communicated: Amendment, the Fourteenth states: "Con- say, publish, son shall free to write or or gress shall respecting make no law an estab- otherwise communicate whatever he will on religion, lishment prohibiting the free subject, being responsible for all abuses thereof; abridging exercise the freedom of liberty;” of that speech, press; right or of the or the assemble, people peaceably petition and to Nowak, 4. Ronald D. & Rotunda John E. Treatise grievances.” the Government for a redress of (3d Ed.1999), on Law Constitutional sections counterpart Its in the Missouri Constitution 2.13(f)(3) and 20.18. provides: passed "That no law shall be im- to what conduct particular attention Helgoth, 691 with This Court State (Mo. 1985), adopted prohibited. In its banc must know is person S.W.2d 566.095, standard announced statute, pro- entirety, the States Court in Broad- United vides: First, over- rick. this Court said that “the the crime of sexu- 1. A commits person strong breadth doctrine medicine degree if he al in the third misconduct hesitation, employed must be another requests solicits last only Helgoth, then as a resort.” circum- in sexual conduct under Ferber, New York v. (citing S.W.2d re- he that his in which knows stances U.S. *4 likely is cause quests or solicitation (1982)). Second, L.Ed.2d 1113 this Court or alarm. affront of the doc- said function unpro- trine “attenuates as the otherwise in the third de- 2. misconduct Sexual behavior that it forbids the State to tected (Em- a misdemeanor. gree is class C from pure sanction moves toward added.) phasis expres- if conduct and conduct—even words,” Shakespeare “But words are scope within the of otherwise sive—falls did That the yet “I never legitimate valid criminal laws that reflect wrote. hear/ maintaining comprehen- though pierced state interests bruised heart was harmful, constitutionally controls over sive ear.”5
unprotected conduct.” Id. The statute of the statute emphasized As the words issue before Court seems involve clear, a prohibition make this is not mere conduct, which the state can declare both circumstances, go which speech. crime, a to be and words, beyond likely must be to cause clear, make As these cases First “affront” or “alarm.”6 principles always do not re Amendment quire that a statute be struck down even In context in which “affront” though broadly it is drawn. “If the statute 566.095, in section what “alarm” are used may be construed in a manner which fairly are or solici- prohibited requests is sexual application unpro limits its to a ‘core’ of likely knows are tations that defendant may upheld against tected it expression, impolite To be is to cause such reaction. it charge overly broad.” State annoying is insuffi- enough. To be (Blackmar, at 408 S.W.2d “affront or alarm” con- cient. The words also, Houston, J., City dissenting); see offense or a vey, a deliberate respectively, and Rich 482 U.S. at least, danger. At the real emo- feeling of H.Fallon, Jr., Over Making ard Sense of result. tional turmoil must (1991). breadth, L.J. 886-887 Yale or alarm” experiencing “affront While Interpretation The Statute and its verbal can be found after defendant’s occurred, application behavior has interpret properly statute it To idiosyncratic on the depend cannot carefully entirety, read and in its should be I, Othello, respect.” literary For Act scene iii. other 5. Third New International Webster's see, references, is defined as and historical "Alarm” Dictionary Richard Dool- outcome, Swearing, ing, "apprehension unfavorable of an Speech, Blue Streak: Free 1996). (Random House failure, dangerous consequences; an occa- Sexual Harassment apprehension.” Id. at sion of excitement deliberately “a offen- is defined as "Affront” utterance; sive act an offense to one's self- person reaction of the whose sexual favors In sections, two other sex crime have been solicited. legislature What are “likely “circum- chose the words to cause 566.083, affront stances which or alarm:” section he knows” at the time he child, misconduct involving makes which request it occurs “likely to cause person when a exposes person’s geni- affront or alarm?” If this is simply the tals to a years child less than 14 age; way law’s saying should know 566.093, and section sexual misconduct in better, it ascertain, falls to the courts to degree, the second which also involves ex- words, reference to the statute’s what the posing genitals.8 one’s Both of these stat- person should know advance of his con- prohibit utes conduct that is known or duct. “likely alarm,” believed to cause affront or give To precise meaning to what a de- presumably to distinguish a criminal act of “know,” fendant must it is appropriate to exposing oneself from conduct that is acci- refer portions other of the criminal dental, inadvertent, or otherwise done code. An adult presumed to know that without an intent phrase to do harm. The certain behavior is criminal. See section likely “circumstances to cause affront or *5 here, 562.031. Specifically, an here, adult should alarm” in the statute involved 566.095, know having that presents oral sex person different context be- cause the years request less than 14 solicitation or old is a felony-first- in sexual degree conduct involves statutory speech and is sodomy.7 In the circum- inherently behavior, not criminal here, as would stances Moore asked year the 13 old be the case of sexual misconduct with a girl to participate in the crime of statutory exposing child or genitals. one’s sodomy. Regardless of how the conduct is characterized —in this statute “likely to A noncommercial solicitation cause affront or alarm”—an adult is from one adult to another —a circumstance deemed under the law to know that such not in Springfield, unknown Missouri—is likely conduct is to cause such an experi- not a conversation that could constitution- ence. ally be the prohibition. within statute’s 7. Statutory sodomy degree in the first is de- to believe that the likely conduct is to cause fined as person follows: "A commits the affront or to a child alarm less than fourteen statutory sodomy (2) crime of degree years age; Knowingly exposes the first of per- the if he has genitals deviate sexual intercourse with an- son’s to a child less than fourteen person years age other years purpose who is less than óf for arousing fourteen the of or gratifying old.” the person, sexual desire of child; (3) including the or Coerces a child "any "Deviate sexual intercourse” is act in- years age expose less than fourteen of the volving genitals person of one and the genitals purpose arousing child’s for the of or hand, mouth, tongue, or per- anus of another gratifying any person, the sexual desire of or a involving penetration, son sexual act including the child.” slight, however of the male or female sex organ pertinent part by finger, provides: or the The anus of 566.093 "A instrument or object person purpose arousing done for the commits the crime of sexual or miscon- (1) gratifying degree Exposes duct in any person.” the sexual the second if he: desire of genitals his which circumstances in he pertinent part provides: The of 566.083 "A likely knows that his conduct is to cause af- person alarm; commits the crime of sexual miscon- (2) front or or Has sexual contact in involving duct person: a child if the presence persons of a third Knowingly exposes person’s genitals to a under circumstances in which he knows child years age less than fourteen in a likely such conduct to cause affront or manner that would cause a reasonable adult alarm.”
69 occur, act, would con- Cal., it to were requested v. Inc. Communications See Sable statutory 2829, 106 first-degree 115, 126, 109 the crime of FCC, stitute Roberts, not (1989); request is sodomy. State This solicitation Cf. 1989). (Mo. A sexual the defen- just banc but conduct that speech, S.W.2d may section 566.095 presumed solicitation violate know the law is dant under where, uses a example, the defendant As con- or alarm. likely to cause affront places per another “purposely threat strued, does challenged section physical apprehension son in of immediate free- guarantee violate the constitutional by section 565.070.1 injury,” proscribed The trial established dom (assault degree), third constitutes experi- in fact year old victim did See harassment under section 565.090. or alarm.” ence “affront (Mo. Koetting, S.W.2d 822 State v. judgment is affirmed. 1981). banc requirement of criminal be- To read a BENTON, LIMBAUGH, C.J., LAURA havior, code, into criminal as defined PRICE, JJ„ STITH, AND DENVIR precise those cir- section 566.095 makes concur. where even most oblivious cumstances know TEITELMAN, solicitor that his conduct J., must in separate dissents In likely to cause affront or alarm. those opinion filed. where the is a misdemean- cases behavior WHITE, J., in opinion of concurs or, 566.095, is a violation of section as TEITELMAN, J. might be considered to be
interpretation reading redundancy legislature’s into the *6 TEITELMAN, Judge, B. RICHARD However, harassing or work. assaultive dissenting. behavior, misdemeanor, though even a respectfully I dissent. significance greater takes on a when as of charged a violation section 566.095 repre- Appellant’s speech was Although violating the conviction of this sec- because hensible, agree principal opinion the I register tion as a requires the defendant to challenge to standing Appellant has sex This offender. See section 589.400.9 an on its face as unconsti- section 566.095 perhaps consequence the most serious to right on free infringement the of tutional of conviction in case. Moore his statute, construed, as the Under this not address majority opinion The does appropriately state in this case assumed limiting a de- pitfalls of construction the victim did showing burden of by the States scribed United “alarm” as experience in fact “affront” or Ohio, 495 in Osborne Court’s decision Moore contemplated by the statute. does U.S. challenge appeal. this fact in this expressed ser- The Osborne Court Conclusion provided had been ious doubt Osborne 122-126, Id. 110 S.Ct. process. due here involve a 61-
The circumstances
Court reversed
conviction
The Osborne
year-old
requesting
or
sexu-
soliciting
man
to
new trial
order
“for a
girl.
a
and remanded
13-year-old
al
from
conduct
commit,
chap-
to
offense of
pro-
attempting
an
pertinent part
589.400
or
9. The
of section
who,
1, 1979,
law
register with the chief
July
ter 566” must
"Any person
since
vides:
of,
county
of-
officer of the
of
been
enforcement
is hereafter convicted
has been or
of,
pled
committing,
guilty
fender’s residence.
guilty
found
ensure that
unconstitutionally
Osborne’s conviction stemmed
overbroad. The crime
finding
a
proved
from
that the State had
was defined as follows:
newly
each of the elements” of the
con-
1. A person commits the
crime
125-126,
structed statute.
Id. at
110 S.Ct.
peace disturbance if:
Osborne,
As in
majority opinion
(1)
unreasonably
knowingly
He
dis-
in this case has construed a statute as
per-
turbs or alarms
another
substantially
plain
different from its
lan-
by:
sons
guage.
example,
For
it is not clear that
Appellant was tried for
crime that
in-
(c) Threatening to commit a crime
cludes the
element of a solicitation
re-
against
...
any persons;
quest that
results
“real emotional tur-
The Carpenter Court noted that:
subject
Even if
moil.”
section 566.095is
Although,
limiting construction would
construction,
limiting
Appellant should
imposition
avoid
of the facial over-
be retried to
proves
ensure that
State
conclusion,
breadth
there is no indication
each
elements of a reformed section
that such a construction would be consis-
566.095.
tent with the intent of the legislature.
Moreover,
inappropriate
subject
it is
fact,
In
plain language
of the statute
limiting
to a
566.095
construction.
contrary.
would indicate to the
We thus
Section
should
analyzed
566.095
any attempt
refrain from
to redraft the
stringent scrutiny
anal
statute.
ACLU,
ysis.
Reno v.
521 U.S.
(cita-
736 S.W.2d
408 n. 1
406 banc Houston v. of Carpenter apply The Court’s refusal Hill, 451, 2502, 482 U.S. 107 S.Ct. 96 limiting peace construction to the distur- (1987)), of 398 both which declined guide bance statute should the decision apply A narrowing such constructions.1 language here. The of 566.095 is raises, review of both cases rather than at language similar to the reheves, concerning propriety doubts the plain. is Carpenter, issue in and it no less of such a redraft of section 566.095. by The case principal second cited the In State v. opinion proposition Court held for the that this statute Houston, a disturbing peace City statute was should redrafted is of opinion The majority public policy also refers to law in an inconclusive manner article, Fallon, Jr., journal Making narrowing Richard H. concerns and of both constructions 853, Overbreadth, rulings. Sense 100 Yale L.J. 886- dis- Professor Fallon’s of well-written, journal of 887 The section the law course is well-reasoned and but opinion authority. by majority cited addresses cannot as article it stand
71
offensive
patently
that is
regulate speech
City
at
between one or several alternate ” (cita- Id. at ings.’ omitted).
tions Carpen-
As with the statutes at issue in Houston, City language
ter and plain, meaning its
section 566.095 is and The crime unambiguous. elements KEISKER, al., Appellants, Ellen et are a mere 28 words. The words “soli- and cits,” “affront,” “alarm,” and “requests,” just plain unambiguous and as are as Trinity Insurance Universal “disturbs,” “threatening,” words Company, Respondent, in Carpenter “alarms” at and the issue “molest,” “interrupt” “abuse” words FARMER, al., City Respondents. issue Houston. et Beatrice majority opinion presented has no No. SC 84290. holding Carpen- reason to overturn Missouri, *8 Court plain ter. Because 566.095 En Banc. should scrutinized on unambiguous, it its face for overbreadth. Nov. content-dependent 566.095 is Section Denied Dec. Rehearing regulation pre
regulation Such sumptively violates First Amendment. Theatres, Inc., 475 Playtime
Renton v. 46-47, 89 L.Ed.2d
U.S. It fall does not within
recognized exceptions. Miller v. Califor
nia, 37 L.Ed.2d obscenity must (regulation