CopyCited 28 times | Published | Supreme Court of Florida | 1998 WL 120280
...requiring immediate resolution by this Court. [1] We have jurisdiction. Art. V, § 3(b)(5), Fla. Const. We affirm as explained below. John and Jane Doe filed a complaint in circuit court in February 1996 seeking a declaratory judgment that sections
106.071, [2]
106.143, [3] and 106.144, [4] Florida Statutes (1995), governing campaign advertising and financing, are unconstitutional....
...Jews for Jesus, Inc.,
482 U.S. 569, 574,
107 S.Ct. 2568, 2572,
96 L.Ed.2d 500 (1987) ("A statute may be invalidated on its face, however, only if the overbreadth is `substantial.'"). [5] Applying the above law to the present case, we conclude that Florida sections
106.071,
106.143, and 106.144 are not substantially overbroad and that any infirmity can be cured by the narrowing construction given below....
...ed "expenditure" in section 434(e) to reach "only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate." Id. at 80,
96 S.Ct. at 664 (footnote omitted). In the present case, to the extent that section
106.071 uses the word "issue" and section 106.144 incorporates the phrase "which endorses or opposes any referendum," we find that none of this language is fatally vague....
...ot measures; and we construed "independent expenditures" to *933 mean only those expenditures that "expressly advocate the election or defeat of a clearly identified candidate." McIntyre,
514 U.S. at 356,
115 S.Ct. at 1523. To limit Florida sections
106.071 and 106.144 to "political candidates" simply because federal sections 434(e) and 431(f) are so limited would be illogical where that criterion is written into the latter statutes and absent from the former. The only arguably vague language in the Florida sections is the phrase "with respect to any candidate or issue" in section
106.071....
...engaged in by McIntyre, and we so read it. We hold that section
106.143(1)(b) is inapplicable to the personal pamphleteering of "individuals acting independently and using only their own modest resources."
514 U.S. at 351,
115 S.Ct. at 1521. As for section
106.071(1), only to the extent that the last sentence in this section requires identification of independent advertisements made by individuals does it run afoul of the First Amendment. [15] This offending language is minor and easily severable, [16] *935 and we order it stricken. [17] The generic requirement in both sections
106.071 and
106.143 that all communications be marked with the phrase "paid political advertisement" in no way violates the anonymity concerns underlying McIntyre. [18] IV. CONCLUSION Based on the foregoing, the Does overbreadth challenge to sections
106.071,
106.143, and 106.144 must fail....
...The statutes are not substantially overbroad and, therefore, are not facially unconstitutional. Any infirmity that might be alleged in the future can be addressed by the courts of this state on an "as applied" basis. [19] We affirm the trial court's order upholding the facial constitutionality of sections
106.071,
106.143, and 106.144, Florida Statutes (1995), as explained herein....
...HARDING, J., dissents with an opinion in which GRIMES, Senior Justice, concurs. HARDING, Justice, dissenting. I respectfully dissent from the majority. I believe that the statutes must be more narrowly construed so as not to violate the First Amendment rights to freedom of speech and freedom of association. Section 106.071 requires any person who makes an independent expenditure with respect to any candidate or issue in an aggregate of more than $100 to file reports with the Division of Elections disclosing the identity and other information relating to the individual making the expenditure. Section 106.071 further provides that any political advertisement paid for by an independent expenditure must state that it is a paid political advertisement paid for independently and identify the person or group paying for the advertisement....
...894,
116 S.Ct. 245, 133 L.E.2d 171 (1995). I believe the majority reaches this result from too narrowly reading the United States Supreme Court's opinions in Buckley and McIntyre. The majority concludes that is "illogical" to interpret Florida sections
106.071 and 106.144 as imposing restrictions on expenditures relating to referendum issues because the Buckley court addressed a federal statute that "by its very terms applies only to political candidates." Majority op....
...inst the plaintiffs, except as to contributions and expenditures for express advocacy of the election or defeat of a specific candidate. Id. at 1078. I believe a similar narrowing construction of the reporting and disclosure requirements of sections 106.071 and 106.144 is necessary to save them from constitutional infirmity. In enacting these statutes, the legislature specifically declared the provisions of the acts to be severable. See ch. 77-175, § 65, at 1074, Laws of Fla. (creating § 106.071 and amending § 106.144); ch....
...Where an act is severable, the invalidity of any provision or the invalidity of its application to any person or circumstance "shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application." Id. Thus, I would delete the word "issue" from section 106.071(1) and construe the reporting and disclosure requirements in section 106.071 as only applying to individuals and groups who make independent expenditures in the aggregate of $100 with respect to any candidate for public office....
...from section 106.144 and construe *938 the reporting and disclosure requirements of section 106.144 as only applying to groups or organizations which intend to endorse or oppose a candidate for public office by means of political advertisements. The section 106.071 disclosure requirement relating to political advertisements paid for by an independent expenditure poses a different problem....
...t of constitutionally protected conduct. Moreover, the task of enacting a more limited identification statute narrowly tailored to serve a compelling state interest must fall to the legislature. Accordingly, I find section
106.143(1) and the part of section
106.071 requiring disclosure of identity as to political advertisements to be unconstitutionally overbroad. In addition, I would narrowly construe sections
106.071 and 106.144 to require reporting and disclosure only where the election or defeat of a specific candidate for public office is involved. For these reasons, I would reverse the order of the trial court. GRIMES, Senior Justice, concurs. NOTES [1] The district court's order is unpublished. Doe v. Mortham, No. 96-2583 (Fla. 1st DCA Aug. 7, 1996). [2] Section
106.071(1), Florida Statutes (1995), provides as follows: Each person who makes an independent expenditure with respect to any candidate or issue, which expenditure, in the aggregate, is in the amount of $100 or more, shall file periodic repo...
...evision, newspaper, magazine, periodical, campaign literature, direct mail, or display or by means other than the spoken word in direct conversation, which shall support or oppose any candidate, elected public official or issue. [15] As noted above, section 106.071(1) provides in relevant part: Any political advertisement paid for by an independent expenditure shall prominently state "Paid political advertisement paid for by (Name of person or committee paying for advertisement) independently of...
...is held invalid, the invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are declared severable."). [17] To comport with the First Amendment, the last sentence in section 106.071(1) must be truncated to read: "Any political advertisement paid for by an independent expenditure shall prominently state `Paid political advertisement.'" [18] By way of comparison, the Ohio statute that was in issue in McIntyre allow...
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2006 Fla. App. LEXIS 3474, 2006 WL 565918
...However, the actual expenditures totaled $9,790.84. Yordan filed multiple complaints claiming that Guetzloe and GCG violated numerous campaign finance laws. Following an investigation, the Commission found probable cause to conclude that Guetzloe and GCG violated section 106.071(1), Florida Statutes (2003) by failing to include disclaimer/disclosure language in the advertisements....
...Guetzloe *944 requested a formal hearing, but the Commission denied the request after finding that he had failed to identify the facts in dispute. [2] Instead, the Commission set an informal hearing and subsequently entered a final order finding that Guetzloe and GCG violated: (1) Section
106.071(1) by failing to include the proper disclaimer on political advertisements paid for by independent expenditures; (2) Section
106.071(1) by failing to timely file periodic reports of independent expenditures of $100 or more, on three separate occasions; (3) Section
106.143(4)(b) by making independent expenditures for political advertisements submitted to radio stati...
...report of the actual expenditures of $9,790.84. The Commission determined that Guetzloe's actions were willful, [3] and imposed $12,000 in fines. On appeal, Guetzloe asserts that the Commission erred in finding him guilty of violating provisions of section
106.071(1) that require advertisements to display the name and address of the person who paid for the advertisements, because those provisions were stricken as unconstitutional by the Florida Supreme Court in Doe v. Mortham,
708 So.2d 929 (Fla.1998). Section
106.071(1) (2003) provided: Each person who makes an independent expenditure with respect to any candidate or issue, which expenditure, in the aggregate, is in the amount of $100 or more, shall file periodic reports of such expenditures in th...
...erson or committee paying for advertisement] independently of any [candidate or committee]," and shall contain the name and address of the person paying for the political advertisement. In Doe, the Court declared that every disclosure requirement in section 106.071(1), save for the words "Paid political advertisement," violated the First Amendment....
...The Court eliminated the requirement that advertisements contain the name and address of the person sponsoring them and the requirement that each advertisement indicate that it is done independently of any candidate or committee. The Court stated: To comport with the First Amendment, the last sentence in section 106.071(1) must be truncated to read: "Any political advertisement paid for by an independent *945 expenditure shall prominently state `Paid political advertisement.'" Id....
...The Commission argues that Guetzloe's speech is not the type addressed in Doe or McIntyre, and that even if those cases do apply to Guetzloe, they could not apply to GCG since it is not an individual. We disagree. Nothing in Doe suggests that the court intended to strike the identification requirement in section 106.071(1) only as it applied to individuals using modest resources....
...cline to apply Doe in such a fashion. Clearly, the court struck the offending language to preserve the constitutionality of the statute, intending that it apply equally to all individuals without regard to economic or other classifications. Further, section
106.071(1) applies to any "person," which is specifically defined to include a corporation. [4] Thus, Doe and McIntyre apply to GCG. The Commission erred in finding that Guetzloe and GCG violated the provisions of section
106.071(1). Next, Guetzloe argues that because the disclosure requirements in section
106.143(4)(b) are similar to those found in section
106.071(1), they are also barred by Doe....
...Dep't of Health,
838 So.2d 676, 678 (Fla. 2d DCA 2003). The Commission's failure to allow Guetzloe and GCG an evidentiary hearing on the issue of willfulness constitutes reversible error. The final order of the Commission is reversed as to the violation of section
106.071(1), affirmed as to the violation of *946 section
106.143(4)(b), and reversed and remanded for a formal hearing on the issue of willfulness....
