Sex Crimes: Florida Upholds Internet Predator Law

The Florida Supreme Court upheld a law which regulates the content of electronic mail in order to protect children from online sexual predators. The Court described the challenge as such:

Simmons did not argue that the government lacks a compelling interest in protecting the physical and psychological well-being of children, but instead argued that section 847.0138 is overbroad because it “limits communications on the Internet to those which would only be suitable for children, thereby depriving adults of their constitutional right to engage in protected speech.”

And:

Simmons argues that section 847.0138 suffers the same constitutional infirmities as the Communications Decency Act of 1996 (CDA), which the United States Supreme Court struck down in Reno v. ACLU, and the Child Online Protection Act (COPA), which the Supreme Court found likely to fail a First Amendment challenge in Ashcroft v. ACLU, 542 U.S. 656 (2004).

The Court distinguished the Florida law from the CDA and COPA:

We find that Florida’s Internet transmission statute differs from the CDA and COPA in several significant respects. First, section 847.0138 does not apply broadly to all materials posted on the Internet or sent via electronic mail. The statute provides that the prohibited communications must be sent via electronic mail to a specific individual known by the sender to be a minor. Thus, the concerns expressed in Reno about the CDA’s application to all communications on the Internet are not implicated by the Florida statute. Nor does the Florida statute cover web postings directed at the public as COPA did. Second, section 847.0138 defines what constitutes materials “harmful to minors” with reference to the three-prong Miller standard, unlike the CDA, which did not define the vague terms “indecent” and “patently offensive” and incorporated only one prong of the Miller test. The Miller definition specifically excludes works that have serious literary, artistic, political, or scientific value to minors. See Miller v. California, 413 U.S. 15, 24 (1973). So does Florida’s statute. See § 847.001(6)(c), Fla. Stat. (2002) (providing that material that is “harmful to minors” is “without serious literary, artistic, political, or scientific value for minors”). Finally, section 847.0138 restricts its applicability to electronic mail, thereby treating portions of the Internet differently as the Supreme Court cited with approval in Reno. 521 U.S. at 865, 868, 877. Because section 847.0138 only applies to electronic mail sent to a specific individual that the defendant actually knows is a minor or believes is a minor, and not to messages sent to a group that is “likely” to include a minor, we agree with the First District’s conclusion that the transmission statute does not suppress adult-to-adult speech. See Simmons, 886 So. 2d at 404-05.

The decision is interesting and really tests the bounds of First Amendment analysis as applied to protecting children on the internet.

HT: Howard