TALLAHASSEE, Fla. - A chilling effect on First Amendment speech has permeated the Sunshine State. The Florida Supreme Court upheld a statute making it illegal to send certain content via email to minors. Florida Statute 847.0138 makes it a third-degree felony to send to a minor any email with sexually explicit material that may be “harmful”—if the sender has reason to believe the recipient is a minor.
Similar laws in New York and other states have not withstood U.S. Supreme Court muster, being deemed overly broad or overreaching. In fact, even Florida previously knocked down other “harmful to minor” online speech laws. However, Florida Supreme Court Justice Peggy A. Quince broke from ranks, finding the Florida Statute 847.0138 well within constitutional protectorates.
Quince even extended the law to cover instant messaging. “This case chills expressive speech,” commented Florida-based First Amendment attorney Larry Walters. “We cannot force adults to act in ways that children do [just to protect children], because to do so would sacrifice a child’s rights when they reach adulthood.”
The U.S. Supreme Court either will take the Florida case up voluntarily through a writ of certiorari or let the state’s decision stand. Given the media’s recent feeding frenzy when focusing on adults who contact minors in chat rooms to try and arrange sexual encounters, it would not be surprising if the U.S. Supreme Court passes on taking up the case and lets the Florida law stand.
As Walters commented, how the Florida law will mesh with 49 other states’ laws on online First Amendment speech is yet to be seen. The First Amendment was not created to make the world safe for 7-year-olds when these new protectorates destroy historically protected adult speech.
