Florida/Georgia Personal Injury & Workers Compensation

DAVIS, Judge. Richard Figueroa-Santiago challenges his conviction and sentence for using electronic communication to further the interest of a criminal gang. He entered a negotiated no contest plea to the offense, which is a violation of section 874.11, Florida Statutes, and the trial court sentenced him pursuant to agreement to two years’ probation. Prior to entering his plea, Figueroa-Santiago filed a motion to dismiss the charge, arguing that section 874.11 is unconstitutional....

...Based on Enoch v. State, 95 So.3d 344 (Fla. 1st DCA 2012), and the Florida Supreme Court’s having declined to accept jurisdiction to review the constitutional issue addressed therein, 108 So.3d 654 (Fla.2013), we reverse, finding only one portion of section 874.11 unconstitutional on its face....

...Figueroa-Santiago acknowledges that the images in question promote the gang. The limited record on appeal does not provide sufficient facts to determine the scope or audience of the posts or whether the images were accompanied by other specifically threatening language or gestures. 1 Section 874.11, Fla....

...a gang that could qualify for sanctions: intimidating or harassing others and advertising one’s presence in the community. The State’s information against Figueroa-Santiago alleged both possibilities. In Enoch , the First District concluded that section 874.11 violates the First Amendment and does not pass the strict scrutiny test because on its face it prohibits communication related to noncriminal gang activity....

...The First District concluded that because the statute is not narrowly tailored to prevent only advertising oneself through the knowing promotion of a gang’s criminal activity, it is unconstitutional. Id. We find no fault with the reasoning of Enoch in this regard and agree that as it is currently written, the portion of section 874.11 related to the using of electronic communications to benefit or promote a gang by advertising oneself in the community is unconstitutionally overbroad on its face....

...te. Enoch, 95 So.3d at 349-50 . Thus our acceptance of the Enoch reasoning is limited to the “benefiting, promoting, or furthering the interests of a criminal gang ... to advertise his or her presence in the community ” prong of the statute. See § 874.11 (emphasis added)....

...ce because the identifiable intimidation or harassment of others itself constitutes a prohibitable criminal act without also criminalizing otherwise innocent, protectable speech. The same severability argument applies to Enoch’s determination that section 874.11 violates the due process clause by criminalizing innocent conduct....

...In fact, 'because of the strength of the traditional rule that requires mens rea, offenses that require no mens rea are generally disfavored.' State v. Giorgetti, 868 So.2d 512 , 515 (Fla.2004).” Franzone v. State, 58 So.3d 329, 334 (Fla. 2d DCA 2011). . We note that the language of section 874.11 would not necessarily have to limit the intimidation or harassment of others for the purpose of benefiting or promoting the gang to the specific individuals identified by section 784.048 in order to overcome this facial challenge and constitute a statute that is narrowly tailored to prevent an identifiable crime....

...In Kasischke , the analysis involved whether a qualifying clause applied only to the antecedent clause or to the other provisions of the statute, and the determination included the significance in the placement of a comma. 991 So.2d at 812 . These details do not apply to section 874.11, and we conclude that Ka-sischke does not limit our ability to view the clauses as independent prongs.

RAY, J. Naymontie Enoch appeals his convictions and sentences pursuant to sections 874.05(1) and 874.11, Florida Statutes (2009)....

...At issue is the constitutionality of these statutes enacted to protect the public from crimes committed by criminal gangs. Concluding that section 874.05(1) is constitutional, we affirm the conviction and sen *348 tence on that count. However, because section 874.11 substantially treads upon protected speech and expressive conduct, associational activity, and other innocent acts and cannot be suitably narrowed to comport with federal and state constitutional requirements, we are constrained to reverse the conviction and sentence on that count. Section 874.05(1), the “gang recruitment” provision, was enacted to protect the public from speech and conduct used to encourage gang membership, where a condition of membership or continued membership is the commission of any crime. Section 874.11, the “electronic communication” regulation, proscribes the use of such communication to intimidate or harass others, or to advertise one’s presence in the community, for the purpose of benefiting, promoting, or furthering the interests of a criminal gang....

...bation; and on the second count to five years’ probation, to be served consecutively to the probationary term in the first count. This direct appeal followed. MOTION TO DISMISS INFORMATION The motion to dismiss asserted that sections 874.05(1) and 874.11 are, as a matter of constitutional law, void for vagueness because they contain terms so unclear that a person of common intelligence must necessarily guess at their meaning....

...ectively rewrite the statute.” Fla. Dep’t of Children & Families v. F.L., 880 So.2d 602, 607 (Fla.2004). CLAIMS OF UNCONSTITUTIONALITY A. First Amendment The First Amendment challenges require us to determine whether section 874.05(1) and/or section 874.11 violates freedom of speech and freedom of association....

...inevitable and imminent criminal or delinquent conduct proscribed in section 874.05(1). Beasley, 317 So.2d at 753 . 2. Section 87U.11: The “Electronic Communication’’ Statute Next, we must consider the First Amendment challenge in Count Two to section 874.11, which encompasses speech mixed with conduct, both connected with the use of electronic communication. This provision states: 874.11 Electronic communication....

...luding, but not limited to, such activities as distributing, selling, transmitting, or posting on the Internet any audio, video, or still image of criminal activity, commits a felony of the third degree, punishable as provided in [various statutes]. § 874.11, Fla....

...nic media when used for illegal ends. A component of the compelling governmental interest in preventing gangs’ criminal or delinquent acts is the proscription of electronic communication used with intent to further the criminal interests of gangs. Section 874.11 fulfills the compelling government interest in protecting the public by curbing criminal gangs’ use of electronic media to incite and commit crimes and delinquent acts....

...“Criminal gang member” is very broadly defined. § 874.03(3). Enoch correctly asserts the generalized purpose of “benefiting, promoting, or furthering the interests of a criminal gang” is not narrowly drawn to effect the State’s compelling interest. Section 874.11 criminalizes any person’s use of electronic communication, for the aforesaid purpose, “to intimidate or harass other persons” or “to advertise his or her presence in the community.” The statute not only covers unprotected spe...

...road and covered symbolic speech and freedom of expression, despite the City’s narrowing construction under which a person would have to know he or she was wearing prohibited items); Christina Rube, Gang Expression on the Internet: Florida Statute Section 874.11 Is a Violation of First Amendment Rights, 59 Cath. U.L. Rev. 1199, 1218-21 (2010). Moreover, section 874.11 is not readily susceptible to any narrowing construction that will protect First Amendment rights. Like the “gang recruitment” statute, the “electronic communication” provision contains no express requirement of knowledge of the gang’s criminal activity; unlike section 874.05(1), however, section 874.11 includes no reference to inevitable illegal conduct....

...that engages in illegal and legal conduct, without a specific intent to further the illegal aims of the group, is not a crime. Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589, 606-07 , 87 S.Ct. 675 , 17 L.Ed.2d 629 (1967). Under section 874.11, any person could face prosecution merely for presenting his or her views advocating any of the myriad interests of a criminal gang....

...n the community — regardless of whether it is intended to benefit, promote, or further the criminal gang’s illegal interests and incite imminent lawlessness — certainly encompasses protected rights. 4 The effect of the unrestricted language in section 874.11 on expressive activity is real and substantial, judged against its clearly legitimate coverage....

...Without appropriate restrictions to afford any person “breathing space [for the] fruitful exercise” of his or her fundamental rights, Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 , 94 S.Ct. 2997 , 41 L.Ed.2d 789 (1974), the broad proscriptions in section 874.11 are repugnant to the First Amendment....

...scrutiny and was an invalid restriction upon the content of speech protected under First Amendment). The fact that the statute at issue focuses on electronic communication in no way justifies treading upon hallowed constitutional rights. Recognizing section 874.11 as unconstitutionally overbroad should not in any way impede legitimate Florida law enforcement efforts to curb illegal acts by criminal gangs, given other laws already on the books....

...piracy. § 777.04(3). Persons *360 who assist or aid a criminal gang member (or anyone else) in committing a crime are subject to prosecution as accessories after the fact. § 777.03(1). The references to the use of “electronic communication” in section 874.11 relate to the means of furthering a criminal gang’s interests but do not create any offense that is not already proscribed under other statutes....

...and could “speak and write freely” about the two groups. Id. Thus, the Court concluded that Congress had not “sought to suppress ideas or opinions in the form of ‘pure political speech.’ ” Id. Holder is not dispositive of our analysis of section 874.11....

...The groups in Holder were designated foreign terrorist organizations, and the federal statutory proscription reached only those persons who provided material support coordinated with, or under the direction of, such organizations. Unlike the statute in Holder , section 874.11 criminalizes the use of electronic communication merely to advertise one’s presence in the community, irrespective of whether the person is or is not an active criminal gang member, for the purpose of benefiting, promoting, or furthering even the gang’s legitimate interests....

...Citing language in Holder , the State suggests that the lack of an organizational and financial firewall between a criminal gang’s lawful and illegal interests renders criminal any speech or conduct in furtherance of a criminal gang. We are unwilling to accept this very broad conclusion in reviewing section 874.11....

...In summary, the State possesses a compelling interest in restricting speech, expressive conduct, and associational activity integral to known criminal conduct, including incitements to crime or delinquent acts expressed through the use of electronic communication. However, the sweeping statutory language in section 874.11 substantially and impermissibly encroaches upon First Amendment rights because it is not limited to furthering the criminal interests of a gang....

...“The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.” Reno v. ACLU, 521 U.S. 844, 885 , 117 S.Ct. 2329 , 138 L.Ed.2d 874 (1997). Concluding that the overbroad language cannot be excised without essentially eviscerating section 874.11, we are constrained to find it facially unconstitutional....

...s” in airport central terminal and thus “reache[d] the universe of expressive activity”). Accordingly, we reverse Enoch’s conviction and sentence under Count Two. B. Substantive Due Process Enoch’s next claim is that sections 874.05(1) and 874.11 violate the Florida Constitution’s guarantees of substantive due process because both provisions encompass and criminalize innocent conduct *362 and are susceptible to unreasonable, arbitrary, and capricious enforcement....

...be attained. Section 874.05(1) is carefully designed to avoid an unreasonable, arbitrary, or capricious application and does not violate substantive due process. 2. Section 87Jp.ll: The “Electronic Communication” Statute The State contends that section 874.11 does not criminalize innocent conduct because the electronic communication must be for the purpose of benefiting, promoting, or furthering the interests of a “criminal gang.” § 874.03(1)(b). Enoch submits that the self-advertising language in section 874.11 would improperly proscribe a criminal gang member’s Internet video posting announcing: “The [name of] Gang is here in the community....

...y relief. Enoch notes that such promotional expressions can simply announce one’s presence in the community and, to fall within the statutory proscriptions, need not be intended to illegally intimidate or harass other persons. The various parts of section 874.11 cannot be viewed in isolation....

...ssociational activity with a purpose to benefit, promote, or further even the non-criminal interests of a criminal gang. This broad coverage includes a substantial amount of innocent conduct and thus offends substantive due process. We conclude that section 874.11 lacks sufficient constitutional safeguards....

...489 , 495 n. 7, 102 S.Ct. 1186 , 71 L.Ed.2d 362 (1982); J.L.S., 947 So.2d at 646 . To have standing to challenge either statute for unconstitutional vagueness, Enoch cannot have engaged in conduct that is clearly prohibited by section 874.05(1) or section 874.11....

...rt accepted without an objection from Enoch. Like J.L.S. and the defendant in State v. Cyphers, 873 So.2d 471, 473 (Fla. 2d DCA 2004), Enoch does not contend that what he said and did on the DVD is outside the proscriptions of sections 874.05(1) and 874.11....

...2d DCA 1998) (holding that defendant who was caught committing specific criminal conduct prohibited by a statute lacked standing to question the statute’s vagueness as applied to the hypothetically innocent conduct of others). To summarize, we conclude that section 874.05(1) passes constitutional muster. However, section 874.11 covers protected speech, conduct, and association; substantially encroaches on these rights; and includes a significant amount of innocent conduct within its proscriptions....

...Enoch is foreclosed from asserting a “void-for-vagueness” claim against either statute for the reasons set forth in Hoffman Estates and J.L.S. We affirm Enoch’s conviction and sentence pursuant to section 874.05(1) and reverse his conviction and sentence pursuant to section 874.11....