Florida Obscenity Statutes
Most states have laws that prohibit obscenity. While the laws vary, most of them use a three-prong standard with the mnemonic device SLAPS. SLAPS stands for serious, literary, artistic, political, or scientific value. The majority of obscenity cases are prosecuted under these three prongs; however, each state has its own specific laws, and Florida is no different. In Florida, obscenity is defined as any material which taken as a whole is obscene, as a matter of fact and common sense, applying contemporary community standards. Florida Statues 847.01(10). If a publication or other matter is obscene, it is unlawful to sell, loan, give away, distribute, exhibit, and other similar actions. Fla. Stat. 847.011. It is also prohibited to advertise or offer to sell the previously mentioned types of effect, as well as possessing obscene material with the intent to sell or otherwise distribute the material if sold or distributed by him would be unlawful if he knew of its character. Fla. Stat. 847.013 and 847.014.
As previously mentioned, Florida uses a three-prong substantive test to determine whether something is obscene. This test is commonly known as the Miller Obscenity Test and applies only to hard-core sexual material. McKenzie v. McDonald’s Corp., 188 F. Supp. 2d 1320, 1324 (M.D. Fla. 2002). With that in mind, applying the Miller Obscenity Test, a publication is obscene if the average person applying contemporary community standards would find that based on the fifty (50) states and not mere minority groups, would find as a whole substance appeals to the prurient interest. A work is obscene if and only if the trier of fact must evaluate the material’s content , which is subjective in nature. Consequently, the analysis will be made under the facts of each individual case. Moreover, this inquiry is not whether the respondent does not understand the alleged obscenity of the material, but whether he was aware that the material was obscene. Id. at 1324 citing Papachristou v. City of Jacksonville, 405 U.S. 156, 162-63 (1972).
Florida’s obscenity statute does not require an intent "to deliver to minors." It requires that a person knowingly commits a sale, loan, gives away without other than family distribution, exhibits, advertises, or offers to sell, lend, give away to another without consideration, distribute or exhibit; or knowing the character of the material he offers to send out any advertising material containing any obscene matter. Fla. Stat. 847.014. Considering that the statute is civil in nature and not criminal in nature, a first offense is a fine of $1,000 issue and it increases upon offending again. Fla. Stat. 847.013. The issue of what constitutes a repeat offense is determined by filing of each claim regardless of whether the claims arise out of the same set of facts. Id.
Any person may bring a civil action against a person who commits a violation of Florida Statutes Section 847.0141(2) or (5). Fla. Stat. 847.017. In any prosecution brought under Florida Statutes Section 847.0141(2) or (5), if the person charged is not afforded or refuses to enter a plea under Section 322.245(5), Florida Statutes, the prosecution may require the support to obtain a sample of his blood as per Florida Statute 322.138.
Florida’s Definition of Obscenity
The term "obscene" is a commonly used phrase that is defined in Florida Statute 847.001(10). It is a broadly overlooked phrase with generic applications, and is most commonly used in reference to child pornography. Essentially, the statute purports to outline the intent behind the law.
Obscenity is defined as, "the obscene descriptions or representations of sexual conduct," and further states that "sexual conduct" means "sexual intercourse, masturbation, sadomasochistic abuse, lewd exhibition of private parts, or the simulated act of any of the foregoing."
Florida also utilizes the "Miller test" to determine whether or not a work/act is obscene, as defined by the First Amendment. It determines whether or not the community would be disgusted by either expression/speech or the enactment of an act. Specifically, the test states:
… whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
This test is known as Miller v. California, 413 U.S. 15 (1973).
While the state is often inclined to take a hardline stance against obscenity, the application of the law can yield vastly different penalties. The intent of the law is to protect citizens from offensive displays, however there is little recourse should they be rooted in art, literature, or academic purposes.
Punishment for Breaking Obscenity Laws
While Florida law does allow for criminal prosecutions under obscenity provisions, it is primarily civil penalties that haunt those found guilty of violating the law. First, there are the costs associated with defending against the charge and pursuing appeals if so inclined. More importantly, the Florida statute allows parties to sue for $150,000 for each violation of the obscenity provision. In addition to any damages as provided by this section, any person adversely affected by a violation of this section may receive an award double the amount of his or her actual damages, which shall be proven at trial; in the case of successful civil enforcement actions brought on behalf of the state, the state shall be awarded attorney attorney fees equal to 25 percent of the damages awarded to the plaintiff for recovery and the payment of restitution to the plaintiff of not less than $500 per violation but not more than $150,000 for all violations. In determining the amount of damages, the trier of fact may consider the cost of the seized obscene publication, performance, or device.
Thus, a decision on whether to pursue a claim for a violation of the obscenity law depends on how badly the alleged violation impacted the plaintiff and the likelihood of succeeding on the merits. The potential exposure in terms of time and fees should also be considered. Another noteworthy aspect of the statute is that if an individual or company maintains copies of materials deemed to be obscene, but they are not available to the public, the only penalty is that these items may be seized and destroyed. In contrast, fear of prosecution is the primary reason why any such disclosure is avoided as evidenced by the fact that very few entities are charged with violating the obscenity statutes in Florida. A recent example is the owner of a magazine which, in a legal dispute with a distributor, disclosed a copy of the publication containing obscene photos of an underage girl. The owner was charged with violating Chapter 847 – the obscenity statute – and, essentially, the conduct happened on the owner’s watch, yet no charges were brought against the parent of the minor who allowed her daughter to be photographed; no charges were filed against the photographer; and no charges were brought against the company who provided the professional photos. In my opinion, the enforcement of obscenity issues seems to focus solely on the "big fish," all to the exclusion of those involved who may equally share responsibility in the alleged violation.
Infamous Obscenity Cases in Florida
Over the years, there have been several high-profile and landmark cases involving obscenity, including:
State v. Magazine: In this landmark case from the 1980s, a prosecutor brought a criminal obscenity charge for alleged obscene content against a magazine distributor. The court limited the scope of culpability, ruling that a distributor cannot be charged in a criminal case unless the distributor actively selected or temporally merged with the materials being distributed.
Florida v. JTC, Inc, 711 So.2d 991 (Fla. 5th DCA 1998): In this case, the Florida Fifth District Court of Appeals determined that the unconstitutionality of a law banning all sex shops in Orlando did not automatically invalidate prosecutions based on that law. The court also upheld the conviction of a sex shop owner for failing to pay the required license fee.
Alley Final Chapter: Alley Final Chapter was a sexually oriented business that operated in Fort Myers, Florida until 2003. In that year, city officials cited the business for obscenity. It was one of several obscenity and censorship cases handled by the attorney who defended the business.
Gonzalez v. United States, 553 U.S. 424 (2008): In this case, the U.S. Supreme Court overruled ACLU v. Ashcroft, a case that ruled the Child Online Protection Act (COPA) unconstitutional. In their decision, the Supreme Court held that to evaluate censorship statutes like COPA, the federal courts can consider the age and online habits of users.
Obscenity and the First Amendment
The issue of obscenity is arguably one of the most highly contested areas of First Amendment jurisprudence. In its current form, the Miller test has been incorporated into the obscenity standard for Florida, which prohibits material that, taken as a whole, and applying contemporary community standards, lacks serious literary, artistic, political, or scientific value, appeals to the prurient interest in sex or depicts sexual acts in a patently offensive way.
Notably, the U.S. Supreme Court has held that obscene speech is not protected by the First Amendment. However, the Roberts court later refined this view, holding that obscene material may only be prohibited based on an even higher level of scrutiny when it is circulated to the public. When a piece of material is directed at a specific person based on their supposed or actual interests in it, the standard becomes one of obscenity.
In current First Amendment jurisprudence, the analysis of what constitutes obscenity has been made even more complex through the introduction of the O’Brien test, which provides that courts should "look[] to the control and effect of the speech in question rather than its content . " Under O’Brien, the court will look to whether the law under review has, in fact, been applied to the speech in question, whether the law is "within constitutional power of government," whether the government had a civil interest in applying the law to the material in question, and whether the law has reached "far broader than is essential to the furtherance of that interest."
This test relies on the discussion of conflicting rights: the right to freedom of expression, and the prohibition of discrimination based on sex. On the one hand, the law has a compelling interest in preventing discrimination, and therefore can validly prohibit the use of sexually obscene materials. On the other hand, such a prohibition may be unconstitutional when it is not sufficiently targeted at addressing the specific interests of the state. As it currently stands, both California and Florida courts have relied on the O’Brien test in obscenity cases.
Obscenity and the Internet
The Internet and its growing influence on the distribution of content has put increased focus on existing obscenity laws. The beauty of the net lies in the speed and range of its communication, but these same factors are also what create challenges in the enforcement of obscenity laws. How do the regulations that traditionally were enforced on printed or broadcast media apply to content found online? The mere act of placing obscene content online in Florida is a violation of criminal obscenity laws. However, the initial appeal of this medium for users was that it did not operate under traditional regulations of customs and manners. Emerging in the nineties, the Internet seemed to be creating new frontiers of communication, and much of it was free from censorship. The site Erowid.com, which focuses on the cultural and scientific…
Unfortunately, some people have used these sites to distribute legitimately obscene content, which had prosecutors, such as those in Broward County, starting to focus on investigating and prosecuting adult content providers and other distributors of sexually explicit content. For example, in 2013, a pair of internet pornography companies opened businesses in Broward County. The operators attempted to use the companies to sell obscene content over the Internet to subscribers. The content was classified as "amateur" in nature but contained graphically images of sexual conduct. Although the industry and the operators consider the material to be adult material, it is classified as obscene under Fla. Stat. § 847.011(3)(a)’s definition of obscenity. Both cases have been challenged on First Amendment restrictions, but the Florida Supreme Court has allowed the cases to continue.
Defenses To Obscenity
Potential legal defenses apply after a person or business has been charged with obscenity under Florida Statute 847. The law provides that it is an affirmative defense to prosecution if the person in possession of the allegedly obscenity material (such as printed material, visual representation, exhibit, product, device, or other thing):
While there is no Florida case law that explains the term "private use," a federal district court in 1995 opined on the language when deciding a case addressing similar federal obscenity laws: "As used in [the statute], the term ‘private use’ refers to secretive or clandestine use, not merely confidential use."
This asserted affirmative defense has four elements: (1) the provision of a licensed medical doctor; (2) the distribution of an object or material which implicates criminal law; (3) pursuant to a client’s expression of legitimate need for confidential use; and (4) in exchange for payment (emphasis added).
In the context of an obscenity prosecution based on something contained in a package/mailer sent from one person to another (which happens frequently), Florida Statute 847.0133 provides an affirmative defense in the following terms:
The use or attempted use of any provision of s. 847.0133 for the purpose of facilitating a criminal violation of a federal or state law is a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
This offense applies to commercial retailers, to and from private individuals, and to and from businesses. The underlying purpose of this law was to allow for third parties, such as commercial retailers such as Adult Shops and Toys stores, to be able to distribute items even if those items were found to be obscene by a fact finder .
While it may seem paradoxical, prosecutors in Florida draw a distinction between the act of obtaining the material by paying for it and using it for personal pleasure.
At least one federal district court in Florida, on one occasion, made a statement contrary to the popular misconception of how Florida’s statute regarding obscenity should be interpreted.
In an opinion issued by the late Senior U.S. District Judge Roger Vinson, the court explained the following, while discussing Florida Statute 847.003(3):
And what constitutes ‘private use’ is determined by considering all facts in evidence at trial, including the nature of the material itself, how it was requested, the manner in which it was paid for, and how it was packaged and delivered. Significantly, it is not enough for the defendant to show ‘that private use was a possibility.’ They must present objective evidence that private use was ‘virtually certain.’ Absent a showing that it was ‘virtually certain that the commercial retailer could not have reasonably known, based on the evidence presented at trial, that the materials were not purposed for commercial distribution, the affirmative defense of private use is only available on a post hoc basis." (emphasis added).
Florida statistics show that, out of 125 obscenity prosecutions from 1990 to 2003, 104 resulted in not guilty verdicts.
Based on the volume of obscenity prosecutions in Florida that are either dismissed or result in not guilty verdicts, it is clear that Florida Statute 847 may be unenforceable in terms of obscenity prosecutions, especially with the advent of highly advanced technology. Further, based on the portion of the statute that allows the affirmative defense of private use, it seems that the state of Florida is aware that enforcement of obscenity laws may be limited.