Brown v. State
358 So. 2d 16 (1978)
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Rule of Law:
A statute that prohibits 'open profanity' without limiting its application to 'fighting words' directed at a specific person is unconstitutionally overbroad because it punishes pure speech in violation of state constitutional free speech protections.
Facts:
- Patrolman Newman responded to a call at the home of Mark Brown's father.
- Upon Newman's arrival, Brown entered the patrol car.
- When Newman asked Brown to exit the vehicle, Brown stated he was 'tired of the mother-f____ 'cause they weren't doing him right,' referring to his father.
- Newman asked Brown to 'hold down the profane language,' but Brown repeated similar distasteful comments about his father.
- Brown's comments were made in the presence of the officer, while standing approximately 25 feet away from his father.
- The officer testified that Brown's remarks were not directed at him personally and that Brown's father did not become any angrier upon hearing them.
Procedural Posture:
- Mark Brown was charged by information with 'open profanity' in violation of Section 847.04, Florida Statutes (1975).
- In the County Court of Polk County, Florida, Brown filed a motion to dismiss the information, arguing the statute was unconstitutional.
- The county court, acting as the trial court, denied the motion to dismiss, directly passing on the statute's validity.
- Brown entered a plea of nolo contendere, reserving his right to appeal the denial of his motion.
- The trial court adjudicated Brown guilty, sentenced him to time served, and imposed a fine.
- Brown, as appellant, then filed a direct appeal to the Supreme Court of Florida, the state's highest court, against the State of Florida, as appellee.
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Issue:
Does Florida's 'open profanity' statute, § 847.04, which criminalizes the use of profane language in a public place or where it can be heard by another, violate Article I, Section 4 of the Florida Constitution because it is facially overbroad and punishes protected speech?
Opinions:
Majority - Sundberg, J.
Yes, the statute is unconstitutional. A statute regulating speech is unconstitutionally overbroad if it punishes pure speech that does not fall into the narrow category of 'fighting words.' Unlike statutes that can be narrowly construed to apply only to face-to-face provocations likely to incite an immediate breach of the peace, Florida's open profanity statute contains no language limiting its application to words addressed 'to another person.' Because the statute criminalizes the mere utterance of profanity if it is overheard, it has an impermissible chilling effect on constitutionally protected speech. The court's prior attempt in State v. Mayhew to save the statute by judicially inserting a 'fighting words' limitation was an improper rewriting of the law, which is a legislative function. Since the statute's text provides no basis for a saving construction, it must be struck down as facially unconstitutional.
Dissenting - Overton, C.J., and Adkins and Boyd, JJ.
The dissenting justices did not provide a written opinion but noted their dissent from the majority's conclusion.
Analysis:
This decision marks a significant shift, with the Florida Supreme Court receding from its own precedent to strike down a public profanity law. It reinforces a strict application of the overbreadth doctrine and emphasizes the principle of separation of powers, clarifying that courts cannot 'rewrite' a facially unconstitutional statute by adding elements, such as a 'fighting words' requirement, that are absent from its text. The ruling invalidates a common type of public order statute, establishing that offensive language is protected 'pure speech' unless it is narrowly targeted as a face-to-face incitement to violence. This holding requires legislatures to draft statutes regulating speech with narrow specificity to avoid unconstitutionality.
