Court: District Court of Appeal of Florida; January 7, 1997; Florida; State Appellate Court
The State of Florida appeals a county court decision that dismissed lewdness charges against Marianne Conforti and Kathleen Urbano, ruling that section 796.07(1)(b) of the Florida Statutes, which defines 'lewdness' as 'any indecent or obscene act,' is unconstitutional based on various constitutional provisions. The Fourth District Court of Appeal asserts jurisdiction under section 26.012(1) of the Florida Statutes. The case stems from an undercover police officer's visit to Studio XXX, where he paid for a 'two female entertainment package.' During the performance, the dancers engaged in erotic acts, including masturbation and cunnilingus, which they argued communicated a message of eroticism. The officer confirmed he received this message, leading to the arrest of the dancers for lewd acts under section 796.07(3).
The trial court declared the statute unconstitutional, referencing First Amendment protections established in Miller v. California and Barnes v. Glen Theatre, Inc. The court concluded that the statute did not permit consideration of context, where obscene acts might be part of a larger performance. The appellate court disagrees with the trial court's interpretation concerning First Amendment protections, indicating that the lewd conduct involved does not warrant such protection, and thus reverses the trial court's ruling on this aspect.
The Supreme Court has expanded First Amendment protections to include expressive conduct, as established in Spence v. Washington. When evaluating statutes that restrict expressive conduct, two approaches emerge. If a law is content-based, meaning it regulates conduct due to the message expressed, it undergoes strict scrutiny. Courts will invalidate such regulations unless the government demonstrates that the expression poses a clear and present danger or falls into unprotected categories. Conversely, if a statute is content-neutral, it can be constitutional if it does not excessively limit the flow of information and ideas. The United States v. O'Brien test is used for determining the constitutionality of content-neutral regulations, requiring that the regulation must be within governmental power, serve a significant government interest unrelated to suppressing expression, and impose only incidental restrictions necessary to achieve that interest.
In Barnes, the Supreme Court examined Indiana's public indecency statute, which mandated that dancers wear specific attire. The Court, led by Chief Justice Rehnquist, determined that nude dancing qualifies as expressive conduct, albeit at the outer limits of First Amendment protection. This conclusion aligns with prior Court decisions emphasizing that not all conduct aimed at expression qualifies as speech. Previous cases, like O'Brien and California v. LaRue, support the notion that certain regulations can limit expressive acts without infringing on First Amendment rights, particularly if the conduct is deemed more sexual than communicative.
Justice Scalia determined that the Indiana statute focused on regulating nudity rather than expression, falling within the state's regulatory authority. His First Amendment analysis emphasized that the key consideration is whether a statute aims to suppress expression; if no content-based motive exists, a court can uphold the statute if a rational basis for regulation is shown. Justice Souter concurred, acknowledging that nude dancing holds some First Amendment protection, while the dissent raised the question of whether non-obscene nude dancing as entertainment constitutes expressive conduct. All justices recognized a boundary where protected expression ends and regulable conduct begins. The court concluded that the acts of cunnilingus and masturbation performed to music in a private setting do not constitute protected expressive conduct under the First Amendment. The intention to convey eroticism through these acts does not grant them constitutional protection. Citing Arcara v. Cloud Books, the court rejected the notion of using the First Amendment to shield unlawful public sexual conduct. As the sex acts in question are not protected, the O'Brien test for constitutional application is unnecessary. The second district has consistently denied First Amendment protection for performances exceeding simple nude dancing, affirming revocations of licenses for lewdness involving simulated sexual activity. Other jurisdictions have similarly declined to classify less explicit dances as expressive conduct. The court's findings affirm that the sexual acts in this case lack First Amendment protection, distinguishing them from the context of Miller v. California, which dealt with the distribution of obscene material rather than live sexual conduct.
Obscene material is not protected under the First Amendment, as established by the court. The Miller test defines obscene material based on three criteria: (a) whether the average person, applying contemporary community standards, would find the work appeals to prurient interest; (b) whether the work depicts or describes sexual conduct in a patently offensive way as defined by state law; and (c) whether the work lacks serious literary, artistic, political, or scientific value. The court asserted that state laws regulating obscene material must be narrowly defined to ensure First Amendment protections through the appellate courts.
Section 796.07 focuses on regulating actual physical conduct rather than expressive material, distinguishing it from the expression protected by the First Amendment as analyzed in Miller. The court noted that non-expressive conduct, such as masturbation and cunnilingus, can be evaluated independently to determine if it violates the statute. The court emphasized that conduct permissible in private settings, such as a bar or theater, does not gain constitutional protection simply due to its location.
The trial court's application of the Miller test was incorrect, leading to the conclusion that section 796.07(1)(b) is constitutional. Furthermore, the court reversed the trial court's finding of improper prior restraint regarding the appellees' sexual conduct. Addressing the void for vagueness doctrine, the trial court deemed the definition of lewdness in section 796.01(1)(b) as unconstitutionally vague, as it failed to provide clear notice of forbidden conduct.
In 1991, the Florida Supreme Court held that the term "lewdness" in section 796.01(1)(b) is constitutionally valid and not vague, as confirmed in Warren and Bell v. State. Appellees seek to challenge this interpretation, arguing that the definition is impractical, but this was previously rejected in 1993 in State v. Davis. The court reaffirms that it is bound by the Supreme Court’s ruling and reverses the trial court's finding of overbreadth in section 796.07(1)(b), explaining that a statute is overbroad only if it restricts constitutionally protected conduct, as established in cases like T.B.D. and Broadrick v. Oklahoma. The court emphasizes that overbreadth challenges require a substantial risk of infringing on First Amendment rights, which was not present here. Section 796.07 concerns prostitution, and the Supreme Court has previously noted that "lewd" has a narrow definition in Florida law, historically linked to gross indecency in sexual matters.
The trial court also dismissed charges on the grounds of violating the right to privacy under the Florida Constitution, which was found to be incorrect. The right to privacy, established by a 1980 amendment, does not apply to the conduct leading to the charges, as there was no legitimate expectation of privacy. Florida's right to privacy is broader than that implied by the federal constitution, rooted in historical and constitutional notions of liberty.
Federal privacy protection is limited to personal rights considered 'fundamental' or 'implicit in the concept of ordered liberty,' as established by the U.S. Supreme Court. This federal right safeguards personal intimacies related to the home, family, marriage, motherhood, procreation, and child-rearing. In contrast, Florida's right to privacy offers broader protections than the federal standard. The Florida Supreme Court first addressed the privacy rights in Winfield, ruling that privacy is a fundamental right subject to a compelling state interest standard. For the compelling state interest standard to apply, there must first be a 'legitimate' expectation of privacy, which is assessed by considering all relevant circumstances and objective manifestations of that expectation.
The delineation of privacy rights begins with the individual's subjective expectations, which must be genuine. In the case of Stall, the Florida Supreme Court examined the application of the right to privacy in relation to obscenity laws. While individuals may possess obscene materials privately, they do not have a legitimate expectation of privacy in purchasing such materials in commercial settings. This conclusion was based on the Supreme Court's precedent that the state has an interest in regulating commercialized obscenity, and privacy rights do not extend to commercial transactions. Thus, if there is no privacy right in patronizing stores for obscene materials, there similarly can be no right to attend commercial establishments for lewd performances, as reaffirmed in State v. Davis, which shares similarities with the case at hand.
A detective entered 'Celebrity Models,' selected a service, paid a fee, and went into a private room with the appellee, where the alleged lewd act occurred. Only the detective and the appellee were present in the room, which was designed to prevent public visibility. The appellee was charged with a lewd act under section 796.07(3) for behavior that included topless dancing and encouraging the detective to engage in masturbation. The court addressed a constitutional challenge to the statute, asserting that the right to privacy does not conflict with the state's interest in prohibiting prostitution and lewd behavior in a commercial setting. The court found that the appellee had no reasonable expectation of privacy in a public business, and the distinction made by the trial court regarding the detective's expectation of privacy was unconvincing. The court emphasized that while individuals may have subjective expectations of privacy, these must be assessed within societal norms and values. Ultimately, the court ruled that Florida's constitutional right to privacy was not applicable in this case, reversed the lower court's orders, reinstated the charges, and remanded for further proceedings.
