Florida v. Greaves (Nice try, Otto!)

Kemp Brinson over at Polk Law Blog was kind enough to provide some feedback on part (3), pointing out the flaw in my analysis regarding the unconstitutionality of Florida statutes § 847.011(1)(c). Both Mr. Brinson and Larry Walters believe that the section requires a two-stage analysis of Greaves’s text – first, whether it is obscene under the Miller test (encompassed within § 847.001(10), and second, whether it also falls under the definition of “harmful to minors” under § 847.001(6). I’ll defer to them both.

From that interpretation, if the work is found “obscene,” then it is not constitutionally-protected, and the crime defined by the subcategory obscene-plus-harmful-to-minors raises no constitutional implications. I thought about, but couldn’t come up with any constitutional reason, why the state can’t decide to punish some kinds of unprotected speech more severely than others. Certainly it would seem that there is no constitutional requirement that all unprotected speech needs to be treated the same for sentencing purposes.

What bothers me about the statute is that there is no rational basis for it, no compelling reason that would justify -- if there were a requirement to do so -- why the state should punish the adult-to-adult dissemination of one type of obscenity over another. Of course, no rational basis or compelling reason is required. Still, it seems odd that speech describing minors engaged in nudity, sexual conduct or sexual excitement – i.e., acts that are “harmful to minors” under Florida law – can’t be banned unless it is “obscene” under the Miller test, but may be punished far more severely for satisfying something less than the Miller test.

§ 847.011(1)(c) is a piece of moral legislation which, at its heart, aims at pure speech (albeit unprotected speech), rather than some noncommunicative impact or result. It should not be overlooked that the chilling effect placed on any speech which might fall under § 847.011(1)(c) is, even if it raises no constitutional objection, very real.

In any event, I will turn to analyzing Greaves’s Guide to examine whether it is “obscene” under the Miller test. The prosecution will have great difficultly, I think, making its case if the judge has a basic respect for the First Amendment.