CopyCited 1 times | Published | District Court, N.D. Florida | 38 Media L. Rep. (BNA) 1860, 2010 U.S. Dist. LEXIS 50485, 2010 WL 1740832
...See Clemons v. Dougherty County,
684 F.2d 1365, 1368 (11th Cir.1982). There is no dispute between the parties regarding the facts of the instant case. The parties have agreed that the sole issue in this casethe constitutionality of Florida Statute §
843.17is purely one of law....
...Following this posting, the Tallahassee Police Department opened an investigation and subpoenaed records from Ratemycop.com and Plaintiff's internet provider, leading to Plaintiff's arrest in May of 2008. Plaintiff was charged by the State with a violation of Fla. Stat. § 843.17, which had been adopted by the City of Tallahassee as part of its city code in Section 12-1. Section 843.17 states: Publishing name and address of law enforcement officer Any person who shall maliciously, with intent to obstruct the due execution of the law or with the intent to intimidate, hinder, or interrupt any law enforcement officer in...
...ee police officers, but has refrained from doing so because of fear of being arrested and prosecuted again. Plaintiff now brings this action against Defendants City of Tallahassee and State Attorney William Meggs challenging the constitutionality of Section 843.17....
...Thus, the only claim that remains against Defendant City of Tallahassee is for monetary damages. Plaintiff's claim for declaratory and injunctive relief remains as to Defendant Meggs. The only issue to be resolved to determine liability in all remaining claims is the constitutionality of Fla. Stat. § 843.17....
...Miami-Dade County,
599 F.3d 1217, 1220 (11th Cir.2010), citing Steffel v. Thompson,
415 U.S. 452, 459,
94 S.Ct. 1209,
39 L.Ed.2d 505 (1974), Virginia v. Am. Booksellers Ass'n,
484 U.S. 383, 393,
108 S.Ct. 636,
98 L.Ed.2d 782 (1988). Plaintiff Brayshaw has already been arrested and prosecuted for violating §
843.17, and therefore logically has a well-founded fear that the law will be enforced against him again should he exercise the same conduct....
...h." Id. at 360,
123 S.Ct. 1536. Simply publishing an officer's phone number, address, and e-mail address is not in itself a threat or serious expression of an intent to commit an unlawful act of violence. Indeed, the word "threat" appears nowhere in §
843.17, nor was there any threat of violence made by Plaintiff in conjunction with his posting of Officer Garrett's address and phone number....
...which would allow me to regard it as a "true threat." Merely publishing an officer's address and phone number, even with intent to intimidate, is not a "true threat" as defined in constitutional law jurisprudence. Similarly, the speech prohibited by § 843.17addresses and telephone numbers of police officersare not "fighting words" or incitements to imminent lawless action. Thus, on its face, § 843.17 does *1249 not purport to regulate true threats or any other mode of constitutionally proscribable speech....
...Rather, disclosing and publishing information obtained elsewhere is precisely the kind of speech that the First Amendment protects. Sheehan,
272 F.Supp.2d at 1142, citing Bartnicki v. Vopper,
532 U.S. 514, 527,
121 S.Ct. 1753,
149 L.Ed.2d 787 (2001). Defendant argues that the speech proscribed by §
843.17, including Plaintiff's speech, is not protected because it is not media publication of a matter of public significance under Florida Star v....
...by Plaintiff. See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,
472 U.S. 749, 784,
105 S.Ct. 2939,
86 L.Ed.2d 593 (1985); Reno v. ACLU,
521 U.S. 844, 870,
117 S.Ct. 2329,
138 L.Ed.2d 874 (1997). Thus, Plaintiff's speech, and that proscribed by §
843.17, is protected by the First Amendment....
..."[T]he First Amendment does not belong' to any definable category of persons or entities: It belongs to all who exercise its freedoms." First Nat. Bank. of Boston v. Bellotti,
435 U.S. 765, 802,
98 S.Ct. 1407,
55 L.Ed.2d 707 (1978) (Burger, C.J., concurring). Thus, pursuant to Florida Star, §
843.17 can only pass constitutional muster if it is "narrowly tailored to a state interest of the highest order." Florida Star at 541,
109 S.Ct. 2603. While the state interest of protecting police officers from harm or death may be compelling, §
843.17 is not narrowly tailored to serve this interest. Section
843.17 fails to require there be a credible threat of danger to the officer, and thus fails to proscribe "true threats." [1] The statute is therefore both underinclusive and overinclusive....
...on. See Sheehan at 1147. Furthermore, punishing Plaintiff for his dissemination of information which is already publicly available is relatively unlikely to advance the interests claimed by the State. See Florida Star at 535,
109 S.Ct. 2603. Because §
843.17 is not narrowly tailored to the state's interest, it is unconstitutional on its face. [2] Additionally, §
843.17 on its face is a content-based restriction on speech. Government regulation of expressive activity is only content-neutral so long as it is justified without reference to the content of the regulated speech. DA Mortg., Inc. v. City of Miami Beach,
486 F.3d 1254, 1266 (11th Cir.2007). Section
843.17 is clearly content-based, as it restricts speech based its subject....
...Content-based regulations are presumptively invalid and subject to a strict scrutiny analysis. See R.A.V. v. City of St. Paul,
505 U.S. 377, 382,
112 S.Ct. 2538, 2542,
120 L.Ed.2d 305 (1992), DA Mortg., Inc. at 1266. Therefore, for the same reasons outlined above, §
843.17 again does not pass the strict scrutiny test by failing to be narrowly tailored to serve the government interest....
...Courts should not rewrite a law to conform it to constitutional requirements, for doing so would constitute a serious invasion of the legislative domain and sharply diminish Congress's incentive to draft a narrowly tailored law in the first place. Id. Section 843.17 would require rewriting, not just reinterpretation, and therefore is not "readily susceptible" to a limiting construction. Accordingly, I find Florida Statute § 843.17 proscribes protected speech without being narrowly tailored to serve a compelling government interest, and is therefore unconstitutional and invalid....
...Because the statute is unconstitutional on these grounds, I need not also determine whether the statute is also void for vagueness and unconstitutional as applied to Plaintiff. IV. CONCLUSION Summary judgment is granted for Plaintiff against both Defendants. IT IS ORDERED: 1) Fla. Stat. § 843.17 is invalid as unconstitutional under the First and Fourteenth Amendments. 2) Enforcement of Fla. Stat. § 843.17 is permanently enjoined....
...*1251 4) The clerk is directed to close the file. NOTES [1] Proscribing true threats is permissible under the Constitution. See Watts v. U.S.,
394 U.S. 705,
89 S.Ct. 1399,
22 L.Ed.2d 664 (1969). [2] The result is no different under the intermediate scrutiny test advocated by Defendant. Section
843.17 fails to further the state?s interest of protecting officers from true threats, and due to its over inclusiveness the restriction on First Amendment freedoms is greater than essential to further the asserted interest....
