Florida/Georgia Personal Injury & Workers Compensation

...Miller of Corse, Bell & Miller, P.A., Jacksonville, for appellee. Ted H. Bartelstone, Miami, amicus curiae, for Individual Rights Foundation. SHAW, Justice. We have on appeal State v. T.B.D., 638 So.2d 165 (Fla. 1st DCA 1994), wherein the district court declared Florida's anti-cross burning statute, section 876.18, Florida Statutes (1993), unconstitutional. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We reverse. I. FACTS T.B.D., a minor, was charged with erecting a flaming cross on the property of Atef Abdul-Nour in Jacksonville on August 2, 1993, in violation of section 876.18, Florida Statutes (1993)....

...2538, 120 L.Ed.2d 305 (1992), is overbroad, and is unnecessary in light of other Florida laws covering related conduct. Chapter 876, Florida Statutes (1993), entitled "Criminal Anarchy, Treason, and Other Crimes Against Public Order," protects Florida citizens against anarchy, treason, and terrorism. Section 876.18 prohibits the placing of a flaming cross on the property of another without written permission: 876.18 Placing burning or flaming cross on property of another....

...ted, is a whole or part without first obtaining written permission of the owner or occupier of the premises to so do. Any person who violates this section commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. § 876.18, Fla....

...ion, it gives no citizen a boon to launch terrorist raids against his or her neighbor. Few things can chill free expression and association to the bone like night-riders outside the door and a fiery cross in the yard. Based on the foregoing, we find section 876.18, Florida Statutes (1993), constitutional....

...WEBSTER, Judge. The state seeks review of an order dismissing a count of a delinquency petition which charged that appellee, T.B.D., placed on the property of another, without obtaining written permission, a burning or flaming cross, in violation of section 876.18, Florida Statutes (1993). The trial court held that section 876.18 was unconstitutional on its face because it infringed upon rights protected by the First Amendment to the United States Constitution. We conclude that section 876.18 criminalizes a substantial amount of expression protected by the First Amendment and is, therefore, overbroad. Accordingly, we affirm. T.B.D. was charged with a violation of section 876.18, Florida Statutes (1993), which reads: It shall be unlawful for any person or persons to place or cause to be placed on the property of another in the state a burning or flaming cross or any manner of exhibit in which a burning or flam...

...However, we reach this conclusion based principally upon traditional First Amendment overbreadth analysis. As an initial matter, it seems to us that, notwithstanding the state's argument to the contrary, there can be little question about the fact that section 876.18 is intended to proscribe expressive conduct because of disapproval of the ideas expressed by that conduct....

...Government generally has greater freedom to restrict expressive conduct than it has to restrict either the written or the spoken word. Id. at 406, 109 S.Ct. at 2540. However, it cannot proscribe particular conduct because of the message intended to be conveyed. Id. Employing such an analysis, it is clear that section 876.18 implicates First Amendment considerations....

...In short, there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds. (Footnote omitted.) Applying this doctrine to section 876.18, we conclude that the overbreadth of that statute is both "real" and "substantial." The statute is not, by its terms, limited to types of expressive conduct traditionally recognized as being entitled to little or no protection under the First Amendment. Unlike the ordinance in R.A.V. v. City of St. Paul , section 876.18 may not fairly be read as intended to be limited in its application to "`fighting' words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031, 1035 (1942). Nor may section 876.18 be read as intended to be limited in its application to "advocacy [which] is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v....

...See also Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827 (overturning conviction under criminal syndicalism statute for conduct and speech at Ku Klux Klan rally). The following is offered, by way of illustration only, as one situation in which enforcement of section 876.18 would proscribe expressive conduct protected by the First Amendment: Suppose a group, such as the Ku Klux Klan, were holding a rally upon property owned by one of its members in a rural area where surrounding property owners were likew...

...oss. Suppose, further, that, whether by design or by pure happenstance, a law enforcement officer who found such conduct offensive drove up just as the cross was being lit, and decided to arrest those responsible for lighting the cross for violating section 876.18....

...that fear of criminal prosecution *169 under the statute will have a chilling effect on the exercise by those not before the court of expressive conduct protected by the First Amendment is both "real" and "substantial." Accordingly, we conclude that section 876.18 violates the First Amendment overbreadth doctrine and is, therefore, unconstitutional....

...at 2547), thereby discriminating based upon the content of the expression, rather than the mode ( id. at ___-___, 112 S.Ct. at 2548-49); and because "content discrimination [was not] reasonably necessary to achieve St. Paul's compelling interests." Id. at ___, 112 S.Ct. at 2550. Were we able to conclude that section 876.18 was susceptible to a construction limiting its reach to only "fighting words" or to conduct intended (and likely) to incite imminent lawlessness, we would be constrained to conclude, further, that the statute was, nevertheless, unconstitutional on its face pursuant to R.A.V. v. City of St. Paul because (1) section 876.18 proscribes only one type of such conduct, based upon the content of the message; and (2) such content discrimination is not necessary to further the legitimate interest sought to be promoted by the statute....

declared Florida’s anti-cross burning statute, section 876.18, Florida Statutes (1993), unconstitutional

WEBSTER, Judge. The state seeks review of an order dismissing a count of a delinquency petition which charged that appellee, T.B.D., placed on the property of another, without obtaining written permission, a burning or flaming cross, in violation of section 876.18, Florida Statutes (1993). The trial court held that section 876.18 was unconstitutional on its face because it infringed upon rights protected by the First Amendment to the United States Constitution. We conclude that section 876.18 criminalizes a substantial amount of expression protected by the First Amendment and is, therefore, overbroad. Accordingly, we affirm. T.B.D. was charged with a violation of section 876.18, Florida Statutes (1993), which reads: It shall be unlawful for any person or persons to place or cause to be placed on the property of another in the state a burning or flaming cross or any manner of exhibit in which a burning or flam...

...However, we reach this conclusion based principally upon traditional First Amendment overbreadth analysis. As an initial matter, it seems to us that, notwithstanding the state’s argument to the contrary, there can be little question about the fact that section 876.18 is intended to proscribe expressive conduct because of disapproval of the ideas expressed by that conduct....

...Government generally has greater freedom to restrict expressive conduct than it has to restrict either the written or the spoken word. Id. at 406 , 109 S.Ct. at 2540 . However, it cannot proscribe particular conduct because of the message intended to be conveyed. Id. Employing such an analysis, it is clear that section 876.18 implicates First Amendment considerations....

...l” and “substantial.” The statute is not, by its terms, limited to types of expressive conduct traditionally recognized as being entitled to little or no protection under the First Amendment. Unlike the ordinance in R.A.V. v. City of St. Paul, section 876.18 may not fairly be read as intended to be limited in its application to “ ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572 , 62 S.Ct. 766, 769 , 86 L.Ed. 1031, 1035 (1942). Nor may section 876.18 be read as intended to be limited in its application to “advocacy [which] is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v....

...See also Brandenburg v. Ohio, 395 U.S. 444 , 89 S.Ct. 1827 (overturning conviction under criminal syndicalism statute for conduct and speech at Ku Klux Klan rally). The following is offered, by way of illustration only, as one situation in which enforcement of section 876.18 would proscribe expressive conduct protected by the First Amendment: Suppose a group, such as the Ku Klux Klan, were holding a rally upon property owned by one of its members in a rural area where surrounding property owners were likew...

...oss. Suppose, further, that, whether by design or by pure happenstance, a law enforcement officer who found such conduct offensive drove up just as the cross was being lit, and decided to arrest those responsible for lighting the cross for violating section 876.18....

...of criminal pros *169 ecution under the statute will have a chilling effect on the exercise by those not before the court of expressive conduct protected by the First Amendment is both “real” and “substantial.” Accordingly, we conclude that section 876.18 violates the First Amendment overbreadth doctrine and is, therefore, unconstitutional....

...at 2547 ), thereby discriminating based upon the content of the expression, rather than the mode (id. at-, 112 S.Ct. at 2548-49 ); and because “content discrimination [was not] reasonably necessary to achieve St. Paul’s compelling interests.” Id. at-, 112 S.Ct. at 2550 . Were we able to conclude that section 876.18 was susceptible to a construction limiting its reach to only “fighting words” or to conduct intended (and likely) to incite imminent lawlessness, we would be constrained to conclude, further, that the statute was, nevertheless, unconstitutional on its face pursuant to R.A.V. v. City of St. Paul because (1) section 876.18 proscribes only one type of such conduct, based upon the content of the message; and (2) such content discrimination is not necessary to further the legitimate interest sought to be promoted by the statute....