State v. TBD

656 So. 2d 479, 1995 WL 355567
Procedural entryThis page is a short order in State v. TBD. Read the opinion of the Court — 20 Fla. L. Weekly Supp. 274
Supreme Court of Florida·Decided June 15, 1995·No. 84013·Published

Opinion

656 So.2d 479 (1995)

STATE of Florida, Appellant,
v.
T.B.D., a child, Appellee.

No. 84013.

Supreme Court of Florida.

June 15, 1995.
Rehearing Denied July 27, 1995.

Robert A. Butterworth, Atty. Gen., James W. Rogers, Bureau Chief, Crim. Appeals, *480 Sonya Roebuck Horbelt, Asst. Atty. Gen. and Gregory Durden, Chief of Civil Rights, Tallahassee, for appellant.

James T. 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). The trial court held the statute unconstitutional under the First Amendment and the district court affirmed. The State appealed.

T.B.D. claims that the statute on its face violates the First Amendment because it is a content-based law prohibiting expressive conduct. He postulates that the statute violates R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 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. — 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 flaming cross, real or simulated, 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. Stat. (1993). Because this statute restricts expressive activity, the First Amendment is implicated.

II. THREATS AND FIGHTING WORDS

The First Amendment promotes the free flow of ideas and information in our society by prohibiting government from restricting speech or expressive conduct because of the message expressed. See, e.g., Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). Content-based restrictions are presumptively invalid. See, e.g., Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972).

Limited exceptions to this rule are allowed where the speech or expressive conduct constitutes "no essential part of any exposition of ideas, and [is] of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed by the social interest in order and morality." Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). Such speech "can, consistently with the First Amendment, be regulated because of [its] constitutionally proscribable content." R.A.V., 505 U.S. at 383, 112 S.Ct. at 2543. Examples of proscribable speech include defamation and obscenity. See id.

"Threats of violence" against individual citizens is one such category. Cf. Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (threats of violence against the President are outside the First Amendment). Threats of violence can be regulated because government has a valid interest in "protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur." R.A.V., 505 U.S. at 388, 112 S.Ct. at 2546. "Fighting words" is another such proscribable category. Chaplinsky. These words "by their very utterance inflict injury or tend to incite an immediate breach of the peace." Id., 315 U.S. at 572, 62 S.Ct. at 769.

*481 The present statute proscribes conduct that falls within the category of "threats of violence." An unauthorized cross-burning by intruders in one's own yard constitutes a direct affront to one's privacy and security and has been inextricably linked in this state's history to sudden and precipitous violence — lynchings, shootings, whippings, mutilations, and home-burnings. The connection between a flaming cross in the yard and forthcoming violence is clear and direct. A more terrifying symbolic threat for many Floridians would be difficult to imagine.

The banned conduct also constitutes "fighting words." A flaming cross erected by intruders on one's property "inflicts [real] injury" on the victim in the form of fear and intimidation and also "tends to incite an immediate breach of the peace" where the victim or intruder may be inclined to take further action. See generally Chaplinsky. In the lexicon of the United States Supreme Court, it is the extraordinarily threatening mode of expression, not the idea expressed, that is intolerable. See R.A.V., 505 U.S. at 391-93, 112 S.Ct. at 2548-49. Again, it is difficult to imagine a scenario more rife with potential for reflexive violence and peacebreaching.

III. R.A.V. v. CITY OF ST. PAUL

The United States Supreme Court addressed the issue of proscribable speech in R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), where a juvenile was charged with burning a cross in a neighbor's yard in violation of a city ordinance providing:

Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.

St. Paul, Minn.Legis.Code § 292.02 (1990).

The United States Supreme Court held the ordinance invalid because it played favorites: Rather than proscribing certain types of "fighting words" across the board, the ordinance prohibited such words only in special cases, i.e., only where the words may offend due to "race, color, creed, religion or gender." "Such a restriction would open the door to government favoritism and protectionism of certain topics and view-points and implicit censorship of disfavored ones... ." State v. Stalder, 630 So.2d 1072, 1075 (Fla. 1994).

The present statute comports with R.A.V. because the Florida prohibition is "not limited to [any] favored topics," but rather cuts across the board evenly.

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State v. TBD, 656 So. 2d 479, 1995 WL 355567 (Fla. 1995).

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Related

Chaplinsky v. New Hampshire
315 U.S. 568 (Supreme Court, 1942)
Watts v. United States
394 U.S. 705 (Supreme Court, 1969)
Police Dept. of Chicago v. Mosley
408 U.S. 92 (Supreme Court, 1972)
Grayned v. City of Rockford
408 U.S. 104 (Supreme Court, 1972)
Broadrick v. Oklahoma
413 U.S. 601 (Supreme Court, 1973)
Texas v. Johnson
491 U.S. 397 (Supreme Court, 1989)
R. A. v. v. City of St. Paul
505 U.S. 377 (Supreme Court, 1992)
State v. Stalder
630 So. 2d 1072 (Supreme Court of Florida, 1994)
State v. T.B.D.
638 So. 2d 165 (District Court of Appeal of Florida, 1994)
State v. T.B.D.
656 So. 2d 479 (Supreme Court of Florida, 1995)
Grayned v. City of Rockford
408 U.S. 104 (Supreme Court, 1972)