CopyCited 134 times | Published | Court of Appeals for the Eleventh Circuit | 2002 U.S. App. LEXIS 4143, 2002 WL 397215
...amphlet.
Dawson told the police officers that if any crime had been committed, he wished to
prosecute as far as the law would allow. After examining a book of Florida
statutes, Officer Alexander concluded that the students had violated Fla. Stat. §
836.11, a misdemeanor that criminalizes the anonymous distribution of
publications that “expose any individual or any religious group to hatred,
1
The essay included the following language:
I have often wondered what wo...
...Stat. §
775.085, a law that allows the enhancement of a crime that “evidences
prejudice.”3 Alexander spoke with an Assistant State Attorney on the telephone,
who conferred with colleagues and agreed that there was probable cause to arrest
under §
836.11 and that the crime could be enhanced to a felony under §
775.085.
The students were arrested and transported to either the Juvenile Assessment
Center or the Turner Guilford Knight Correctional Facility (“TGK”), depending on
whether they were over eighteen years old.
2
The relevant portion of §
836.11 states:
It shall be unlawful to print, publish, distribute or cause to be printed, published
or distributed by any means, or in any manner whatsoever, any publication,
handbill, dodger, circular, booklet, pamphlet,...
...hich tends to expose any individual or
any religious group to hatred, contempt, ridicule or obloquy unless [the name and
address of those responsible for the publication] is clearly printed or written
thereon.
Fla. Stat. Ann. §
836.11 (West 2001).
3
The relevant portion of §
775.085 states:
The penalty for any felony or misdemeanor shall be reclassified as provided in
this subsection if the commission of such felony or misdemeanor evidenc...
...to file criminal charges was made because “recent decisions of the United States
Supreme Court . . . render the statute in question unconstitutional and
unenforceable.” In an unrelated case, the Florida Fourth District Court of Appeal
later declared § 836.11 to be an unconstitutional infringement of the First
Amendment....
...All violations of law and incidents of
disruptive and/or inappropriate behavior are to be reported in accordance with
5
It is unclear whether the School Board would be liable even if its policy was the
“moving force” behind Cuesta’s arrest, because § 836.11 was valid law at the time of the arrest.
The “subsequently determined invalidity of [a statute] on vagueness grounds does not undermine
the validity of the arrest made for violation of that [statute]....
...of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would
be bound to see its flaws.” Id. at 38. Because we hold that the School Board’s policy was not
the moving force behind the arrest, there is no need for us to address whether § 836.11 was
“grossly and flagrantly unconstitutional.”
8
administrative procedures established by the Superintendent of Schools.” School
Board Rule 6Gx13-4A-1.21.III, IV (Responsibilities and Duties)....
...Principal Dawson reported the students’ conduct to Officer Alexander,
as is mandated under the policy. He also indicated that he wished to prosecute the
students if they had violated any criminal laws. Officer Alexander, together with
Officer Galardi, looked through a book of statutes and found §
836.11. Officer
Alexander then called the State Attorney’s Office and spoke with Assistant State
Attorney Carlos Guzman about the possibility of making an arrest under §
836.11,
and the possibility of enhancing the crime under §
775.085....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2001 WL 1093021
...Steven Wisotsky of Steven Wisotsky, P.A., Coconut Grove, for appellee, and Barry Butin, Fort Lauderdale, cooperating counsel for the ACLU of Florida. PER CURIAM. The State of Florida appeals the county court's dismissal of an information charging appellee with a violation of section 836.11, Florida Statutes, which prohibits publications tending to expose persons to hatred, contempt, or ridicule....
...On August 23, 1999, members of the Broward County Board of Commissioners received copies of an anonymous letter in their inter-office mail. The letter included anti-Semitic comments. After admitting to a detective that he wrote the letter, appellee was arrested and charged with a violation of section 836.11....
...Even in these areas in which the government is free to regulate, such as obscenity or fighting words, it cannot make further content discrimination. See R.A.V.,
505 U.S. at 382,
112 S.Ct. 2538. Therefore, even proscribable speech must be curtailed in a content-neutral fashion. Id. at 387-88,
112 S.Ct. 2538. Section
836.11 is not content-neutral....
...he severability doctrine. See Ray v. Mortham,
742 So.2d 1276, 1280 (Fla.1999)(explaining judicially created severability doctrine for saving constitutionally infirmed legislative enactments). *1070 Overbreadth We also agree with the trial court that section
836.11 is unconstitutionally overbroad....
...2502,
96 L.Ed.2d 398 (1987). "Criminal statutes must be scrutinized with particular care; those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application." Id. (citations omitted). Section
836.11 not only impacts proscribable speech, it also profoundly impacts speech that is clearly protected....
...gs inevitably lead citizens to "steer far wider of the unlawful zone'... than if the boundaries of the forbidden areas were clearly marked." Grayned v. City of Rockford,
408 U.S. 104, 108-09,
92 S.Ct. 2294,
33 L.Ed.2d 222 (1972) (citations omitted). Section
836.11 is unconstitutionally vague because it fails to apprise a person of ordinary intelligence what would subject him or her to criminal punishment....
...The statute, in essence, is regulating good manners. Thus, the statute promotes arbitrary enforcement because "ridicule," "contempt," or "hatred" may arise from different situations, depending upon the recipient of the communication. Additionally, because section 836.11 abuts upon the sensitive area of the First Amendment, its vagueness operates to inhibit freedom of speech, as individuals would refrain from protected speech in order not to violate the statute. For the above reasons, we affirm the order declaring section 836.11, Florida Statutes, unconstitutional and dismissing the information filed against appellee....
