IN THE CIRCUIT COURT, TENTH JUDICIAL CIRCUIT, IN AND FOR POLK COUNTY, FLORIDA nnCASE NO. CF 99-01463 A-XX nCASE NO. CF 99-01465 A-XX nnSTATE OF FLORIDA, nPlaintiff, nnvs. nnTAMMY ROBINSON and nHERBERT ROBINSON, nDefendants. nn/ nnMOTION TO DECLARE OBSCENITY STATUTE UNCONSTITUTIONAL nnDefendants, TAMMY ROBINSON and HERBERT ROBINSON ("ROBINSON"), by and through undersigned counsel, move to dismiss the above cases pursuant to Fla.R.Crim.P. 3.190 because the statutory definition of "obscene" is unconstitutionally vague, and violates the Due Process provision of Article 1 Section 9 of the Florida Constitution and the First and Fourteenth Amendments to the United States Constitution, and in support submits the following Memorandum of Law: nnMEMORANDUM OF LAW nnI. INTRODUCTION nnThe 26-year-old legal definition of "obscenity" is unconstitutionally vague due to the ambiguous terms it provides and due to the impossibility of its application in this post-information age. Moreover, the terms of the Florida Statute implementing the obscenity definition encourage arbitrary enforcement by police, prosecutors, judges and juries. nnSince the Defendants have been charged with wholesale promotion of obscenity, an indispensable element of the State's proof is that the images allegedly "promoted" are "obscene", as that term is defined pursuant to Florida law. The Florida definition substantially tracks the definition set forth in Miller v. California, 413 U.S. 15 (1973). The Miller decision set basic guidelines for the trier of fact. Both Miller and the Florida Statutes define "obscene" to mean the status of material which: nnThe average person, applying contemporary community standards, would find, taken as a whole, to appeal to the prurient interest; depicts or describes, in a patently offensive way, sexual conduct as specifically defined in the statutes; and taken as a whole, lacks serious literary, artistic, political or scientific value. nn?847.011, Fla. Stat. (1999). nnThe foregoing definition is unconstitutionally vague and clearly outdated in the post information age. The law is regularly applied and enforced in an unconstitutional manner by police, prosecutors, judges and juries. nnII. ARGUMENT nnA. HISTORY OF MILLER V. CALIFORNIA AND ITS FLORIDA COUNTERPART nnIn Miller v. California, 413 U.S. 15, 93 S. Ct. 2607 (1973), a majority of the United States Supreme Court for the first time agreed upon a definition of "obscenity" that the court believed was consistent with the First Amendment's guarantee of freedom of speech. The definition of obscenity was adopted by a one (1) vote majority. nnThe Court gave specific examples of what it meant by "sexual conduct specifically defined by applicable state law" under part B of the definition describing a litany of actual and simulated sex acts. For the last two decades, the definition of obscenity in Florida has been construed to track the Miller requirements. P.A.B., Inc. v. Stack, 47 F.Supp. 937 (S.D. Fla. 1977). In formulating a new definition of obscenity, the Court reviewed the "tortured history of the court's obscenity decisions;" Miller at 20 - 22: nnApart from the initial formulation in Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304 (1957)] no majority of the court has at any given time been able to agree on a standard to determine what constitutes obscene, pornographic materials subject to regulation under the state's police power. [citation omitted.] We have seen "a variety of views among the members of the court unmatched in any other course of constitutional adjudication." (citation omitted). nnNotwithstanding the difficulty, the five member majority in Miller rejected the views of the dissenting justices that obscenity is incapable of a verbal definition that avoids the pitfalls of vagueness. The majority stated: nnUnder the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patiently offensive "hard-core" sexual conduct specifically defined by the regulating state law, as writing or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring a prosecution. (emphasis added). nnTherefore, in the age of Miller, there must have been a clearly identifiable class of "hard-core pornography" which was easily recognizable by dealers, law enforcement authorities, courts and juries alike, such that the inherent vagueness of the definition of obscenity posed difficulties only in those marginal cases. Remember, Miller was decided at a time when color television was first coming into its own and in an age where Lucy and Ricky Ricardo occupied separate bedrooms. To that end, the court in Miller cited its prior decision in Roth v. United States: nn[T]here may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. nn413 U.S. at 27, n. 10. nnB. THE OBSCENITY STATUTE IS UNCONSTITUTIONALLY VAGUE ON ITS FACE nnThe Florida obscenity statute lays out the Miller definition of obscenity in ?847.001(7)(a-c). As we approach the new millennium, the Miller definition of obscenity has become void for vagueness. nnJustice Brennan, joined by Justices Stewart and Marshall, addressed this vagueness problem in the dissent in Paris Adult Theater v. Slaton, 413 U.S. 49, 70, 93 S. Ct. 2628 (1973), a companion case to Miller: nnBut after sixteen years of experimentation and debate I'm reluctantly forced to the conclusion that none of the available formulas [for defining obscenity], including the one announced today, can reduce the vagueness to a tolerable level while at the same time striking an acceptable balance between protections of the First and Fourteenth Amendments, on the one hand and on the other the asserted state interest in regulating the dissemination of certain sexually oriented materials. Any effort to draw a constitutionally acceptable boundary on state power must resort to such indefinite concepts as "prurient interest", "patient offensiveness", "serious literary value", and the like. The meaning of these concepts necessarily varies with the experience, outlook, and even idiocinquious of the person defining them. Although we have assumed that obscenity does exist and that we "know it when [w]e see it", [citation omitted] we are manifestly unable to describe it in advance except by reference to concepts so elusive that they fail to distinguish clearly between protected and unprotected speech. nn(emphasis added) 413 U.S. at 84. nnThe Court in Miller, in addressing the vagueness issue, focused its primary analysis on only one aspect of the void for vagueness doctrine; that a statute is vague where it fails to adequately inform persons subject to its provisions of what conduct is forbidden. A decade after Miller in Kolender v. Lawson, 461 U.S. 352 103 S.Ct. 1855 (1983) it was pointed out that the more important litmus test for a statute challenged on vagueness grounds is whether the statute invites arbitrary or erratic application of the law by law enforcement, prosecution and juries. Id. 103 S.Ct. at 1858 - 59. nnThis distinct element of the vagueness test was recently discussed in detail in the Supreme Court decision of City of Chicago v. Morales, ____ U.S._____, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). There, the Court held that even if the ordinance provides fair notice to citizens of the prohibited conduct, the potential for arbitrary enforcement can render the law vague in all its applications, and therefore unconstitutional. nnThe instant case amply illustrates how a vague law can invite discriminatory enforcement by law enforcement and prosecution. Justice Brennan's dissent in Paris Adult Theater stressed this aspect of the vagueness doctrine, emphasizing that arbitrary enforcement should be tolerated even less where First Amendment rights are at stake. Justice Brennan further wrote: nnIn Roth we conceded that "there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls . . ." [citation omitted]. Our subsequent experience demonstrates that almost every case is "marginal", and since the "margin" marks the point of separation between protected and un-protected speech, we are left with a system in which almost every obscenity case presents a constitutional question of exceptional difficulty. nn413 U.S. at 91. nnJustice Brennan continued: nnAs a result of our failure to defined standards with predicable application to any given piece of material, there is no probability of regularity in obscenity decisions by standards with predicable application to any given piece of material, there is no probability of regularity in obscenity decisions by state and lower federal courts. That is not to say that these courts have performed badly in this area or paid insufficient attention to the principals we have established. The problem is, rather, that one cannot say with certainty that material is obscene until at least five members of this court, apply an inevitability obscure standards, have pronounced it so. nnFour years after Miller, in Smith v. United States, 431 U.S. 291, 79 S.Ct. 1756 (1977), Justice Stevens who had been appointed to the court after Miller was decided, made the following observations: nnThe diversity within the Nation which makes a single standard of offensiveness impossible to identify is also present within each of the so-called local communities in which litigation of this kind is prosecuted. For sure, the standard for a metropolitan area is just as 'hypothetical and unascertainable' as any national standard. nnSmith at 313 - 314, 314 f.n. 10. nnThe question of offensiveness to community standards, whether national or local, is not one that the average juror can be expected to answer with even handed consistency. The average juror may well have one reaction to sexually oriented materials in a completely private setting and an entirely different reaction in a social contexts. nnSmith at 315. nnA juror might well find certain materials appealing and yet be unwilling to say so. He may assume, without necessarily being correct, that his reaction is aberrant and at odds with the prevailing community view, especially if the first member of the jury to speak indicate that they considered the material offensive. nnSmith at 315, f.n. 13. nnIn the final analysis, the guilt or innocence of a criminal defendant of an obscenity trial is determined primarily by individual juror's subjective reactions to the materials in question rather then by predictable application of rules of law. nnIn my judgment, the line between communications which [offend] and those which do not is to blurred to identify criminal conduct. It also is to blurred to limit the protections of the First Amendment." nnSmith at 316. nnC. POST INFORMATION AGE VAGUENESS nni. Society in 1977 Verses Society in 1999 & the Exponential Growth of the Internet nnDuring the twenty plus years since the Miller obscenity standard, the distinctions the court set out to create have become increasingly blurred. At the time of Miller, the Court intended to set concrete guidelines for isolating hard-core pornography from protected speech. But, with the advent of new technologies and the exponential growth of the Internet, the constitutional viability of Miller, and the almost decade-old Florida Supreme Court opinion in Stall v. State, 570 S.2d 257 (Fla. 1990), have further eroded. In Stall, the court relegated the majority discussion of vagueness issue to one sentence. "The statutes at issue are sufficiently limited, both by their terms and by common sense, to pass constitutional scrutiny." With little discussion of the vagueness issue, the Stall majority relied on prior opinions to uphold the constitutionality of ?847.011. However, Justices Barkett and Kogan highlighted the subjective nature of Miller in the dissent. nnAs repugnant as I personally may find some 'obscene' materials to be, I cannot vote to suspend the application of constitutional principals to achieve a desired result. The Constitution requires criminal laws to unambiguously define the elements of a crime. A basic legal problem with criminalization of obscenity is that it cannot be defined. Justice Stewart's assertion that 'I know it when I see it' has become a household phrase. Yet, I dare say many households would differ with him and with each other about what is obscene. Thus, this crime, unlike all other crimes, depends, not on an objective definition obvious to all, but on the subjective definition, first, of those who happen to be enforcing the law at the time, and, second, of the particular jury or judges reviewing the case. Such a procedure runs counter to every principal of notice and due process in our society . . . it would be legally indefensible in any other criminal context to respond that a crime is whatever a handful of people define it to be after the fact. nnStall at 257, 263 (Barkett, J., dissenting). nnIn a footnote, Justice Barkett points out that some "obscenity" is prosecuted while other "obscene" material continues to flood the marketplace. As the line between protected and unprotected speech has been blurred by a change in societal mores and technology, the AIDS epidemic has had as much impact on Americans' sex lives as the release of Deep Throat in 1972. In 1973, when the Supreme Court set out to establish guidelines for deciphering protected or unprotected speech, few would have envisioned the way such material is openly sold and exhibited in retail outlets in most towns and cities throughout the United States. Nor could the Justices have conceived of the proliferation of sexually-oriented materials on the Internet. The real truth is that in the last 25 years, sexually-explicit films, magazines, CD-ROMS, DVD's and Internet graphics have achieved a widespread acceptability brought about in no small measure by the popularity of the video cassette recorder and personal computer. Consumption of sexually oriented materials by Americans is sky-rocketing and it is now a well-entrenched part of contemporary culture. nnUniversity of California - Berkeley professor Linda Williams, recently addressed the obscenity issue in the mainstream computer magazine Wired's web site. Professor Williams proclaimed that, "obscenity has been replaced by 'onscenity'... Obscenity is off-scene, off the scene of public discourse...onscenity is everyday, familiar as your own naked butt in the mirror." University of Southern California's Professor Phillpa Levine also was quoted on Wired's web site, stating that "porn is no longer a hidden away thing that men get to know about and women aren't supposed to." Craig Biknell, Does The Smut Stop Here, Wired.com, December 6, 1999 attached as Exhibit "A". nnMore and more adults in each and every community throughout the Nation have access to and actually view sexually explicit films and images in the privacy of their homes. These films are openly advertised in magazines of national circulation and easily acquired through the mail or in retail outlets. Live nude dancers and a vast array of sexually oriented materials are available for view or purchase through the mail or on home computers. (See Dave Landis, Sex, Laws & Cyberspace Regulating Porn: Does it Compute?, August 9, 1994 attached herein as Exhibit "B"). nnAccording to Forbes magazine, 8,948 hardcore videos hit the U.S. retail market last year, up significantly from 1,275 releases in 1990 (attached as Exhibit "C"). In 1998, Americans rented 686 million adult tapes. Id. In 1999, x-rated videos should generate $5 billion dollars in sales and rentals, double the revenue from 5 years ago. Id. Phil Harvey Enterprises, owner of Adam and Eve, a mail order distributor of adult products, sells $90 million dollars worth of adult products, including videos and sex toys. Id. Adult cable and satellite industries generate $310 million dollars in annual revenue. The adult Internet industry itself generates nearly $1 billion dollars currently and is set to triple within five years, according to Reuters, Ltd. Article attached as Exhibit "D". The adult industry's trade publication, Adult Video News, has become a glossy 300 page monthly, filled with advertising. A copy of the recent issue is attached as Exhibit "E". The adult Internet industry even has its own monthly magazine: AVN Online, attached as Exhibit "F". nnIn the United States v. Various Articles of Obscene Merchandise, 709 F.2d 132 (2d Cir. 1993), the Second Circuit Court considered an appeal from the judgment of a trial court in a customs forfeiture case, concluding that various magazines and videotapes were not obscene. The video cassettes seized by Customs included "Deep Throat," "The Opening of Misty Beethoven," "Debbie Does Dallas," "Insatiable," "Star Virgin," "Behind The Green Door," "High School Memories," "The Ecstasy Girls," "Little Girl Blew," and others. Some of the magazines contained titles such as: "Horny," "Color Orgy No. 8 and No. 12," "Color Climax No. 75," "Cop Porno," "Anal Sex No. 37,"and "Lust No. 3." nnThe Second Circuit found: nnNo purpose would be served by describing in detail the seized articles except to say that they are unquestionably examples of hard-core pornography, describing and depicting a wide range of scenes of explicit sex on the part of adults, single and in groups, including detailed portrayals of genitalia, sexual intercourse, fellatio, and masturbation. The magazines and representative samples of the most pornographic portion of the challenged videotapes were exhibited to the District Court and later to ourselves. The District Court took judicial notice of the availability of the same and similar materials in the New York area. nn709 F.2d at 136. nnThe Second Circuit held that the trial court properly utilized such evidence to conclude that the items were not obscene. The availability and public viewing of the same or comparable materials in the New York area was found to be widespread. For example, the motion picture "Deep Throat" was exhibited to paying patrons in numerous New York theaters, and the trial judge was entitled to draw the inference therefrom that the challenged articles enjoy a reasonable degree of community acceptance. At some point, a work widely accepted must be considered inferentially acceptable. There was a time when it was difficult for citizens of many places in the United States to view such films as "Deep Throat" in the theater or to purchase a video cassette of that work either from a retail outlet or through mail order firms. Technology, including the VCR, satellite and cable television and the Internet have changed that. A prosecutorial decision to charge a work as obscene necessarily must be based upon other factors having nothing to do with the characteristics of the work itself. Erratic and arbitrary enforcement of the obscenity laws such as the bad faith conduct in this case is the inevitable result of the inherent vagueness of the less than concrete standards for defining obscenity in an age of widespread availability and tolerance of sexually-explicit materials. The United States Court of Appeals for the Second Circuit noted that: nn[D]etermination of what material falls within the term 'obscene' does not lend itself easily to the judicial process. Much of the difficulty stems from the vagueness of the concepts involved, the wide variations and moral altitudes within a heterogenous population, and the unsuitability of conventional procedures, which rests on "findings of facts" and "conclusions of law," to the task of determining of obscenity. nnThe Second Circuit pointed out that the trier of fact in an obscenity case . . "may utilize his own sense of the views of the hypothetical 'average person in the community'," a flexible concept that requires taking into account such variables as the different characteristics of the community, the differing attitudes within it, the extent to which persons reveal their true opinions, and the nature of the "hard-core" material under attack. nnThese are indeed difficult concepts for classification as "fact-finding." Although the jury's experience in everyday life equips it to determine what the hypothetical "reasonable man" would do in a given circumstance, judges or jurors generally lack experience in pornography and the attitude of others towards it (often deliberately not revealed). The fact finder therefore is faced with a greater challenge in making the findings demanded by Miller. nnThe vagueness problems in the Miller definition of obscenity and its Florida counterpart are innumerable. In 1999, commercial "hardcore" materials are openly available to the community and sold with impunity in video stores, adult stores, on satellite and pay per view and in great abundance on the Internet. Even if once viable, the Miller standards do not provide any concrete guidelines to inform the decisions of police or prosecutors when they single out certain films or magazines from a myriad of other equally explicit magazines for the purpose of prosecution. nnSimilarly, a prosecutor's selection of certain magazines cannot be considered "objective" (as opposed to the subjective condemned in Kolender v. Lawson, supra) given the variety of virtually indistinguishable "hardcore" films, images and magazines available in the community. Defendants contend that there may in fact be no articulable consensus of "average persons" on the essential elements of the Miller test. Further, the same argument applies with equal force to the components of the three-part test of obscenity. nnIn addition to the difficulty in construing what an "average person applying contemporary community standards" means, it is similarly impossible to use the "patent offensiveness" "prurient interests" and the "serious value" components to distinguish between sexually explicit materials legally consumed by the public, and sexually explicit materials selected by the authorities for prosecution. Even the Federal Bureau of Investigation ("FBI") has recognized the problems with the 1973 Miller standards as a gauge for discriminating between "prosecutable" obscenity and other sexually explicit materials which have become commonplace in today's society. Rather than utilizing the three part test for obscenity set out in Miller, the FBI presently does not investigate obscenity unless it involves the interstate transportation of child pornography. nnSee: Falling Obscenity Prosecutions, AVN on the Net, October 4, 1999, attached as Exhibit "G" http://www.avn.com/html/avn/news/nws/news6ql.html. In fact, there were only six federal obscenity prosecutions nationwide in 1997, all of which resulted in convictions for child pornography. This rate has been steadily declining. Id. Further, the rate of obscenity cases that U.S. attorneys decline to prosecute has risen from 78% in 1982 to 83% in 1997. Id. (Richard Shimon, Falling Obscenity Prosecutions, Adult Video News, Sept. 28, 1999. However, the United States Attorney has in the past prosecuted obscenity cases that did not involve children, despite FBI advice that the materials involved were outside the scope of the FBI guidelines for the prosecution or investigation of obscenity. PHE v. United States Department of Justice, 743 F.Supp. 15, 25 (D.C. 1990). Obviously the standards used by the FBI are far less restrictive then the general three part test developed in Miller. nnii. ACLU v. Reno Requires a Reassessment of the Vagueness of Obscenity Laws. nnIn 1997, a unanimous U.S. Supreme Court decided ACLU v. Reno, 117 S.Ct. 2329 (1997) ["Reno I"]. The decision upheld Plaintiffs' preliminary injunction prohibiting enforcement of the Communications Decency Act of 1996 ("CDA") which constitutes Title 5 of the Telecommunications Act of 1996. Reno I and the Telecommunications Act of 1996 provide good reason to reexamine existing law and its application to a new medium, the Internet. The District Court had granted a preliminary injunction and a restraining order based on the inherent vagueness of the term "indecent". The Plaintiffs in Reno I made it clear that their challenge was to the "indecency provision" of the CDA and not to the extent that the Act covers obscenity under Miller v. California, 413 U.S. 415 (1973). Accordingly, the Supreme Court has not addressed the constitutionality of the federal law regulating obscenity on the Internet. Nonetheless, Defendants contend that the decision directly impacts obscenity as defined by Miller and demonstrates that what were once thought to be concrete standards are now unconstitutionally vague. nnThe Internet presents unique issues relating to the application of First Amendment jurisprudence and due process requirements to this exponentially growing and involved method of communication. The Internet is a network of networks, a global web of linked networks. In 1973, when Miller was decided, home computers were incomprehensible. By 1993, over 1,000,000 computers were linked to the Internet. ACLU v. Reno, 31 F. Supp.2d 473 (E.D. Penn. 1999) ("Reno II"). Approximately seventy million people of all ages use the Internet in the United States alone. In June, 1998, Information and Directory Services (MIDS) reported that there were 102 million accessing the Internet in the world. In June, 1999, CommerceNet reported that there were 92 million users, 16 years old and older accessing the Internet in the United States. MIDS estimates that the total number of worldwide Internet users will grow to 707 million by 2001. nnhttp://www.mids.org/mmq/501/pages.html(quoting: http://www.computereconomics.com/new4/pr/pr990610.html.) Printouts from the Internet are attached as Exhibit "H". Popularization of the Internet over the last few years combined with the new Telecommunications bill require a re-examination of Miller v. California, supra, as applied to Internet obscenity prosecutions. Sexually explicit material available over the Internet include text, pictures, "chat rooms", bulletin boards, news groups, and other forms of communication spanning everything from girlie pictures to the hardest of hardcore pornography. Works posted on the Internet transcend traditional community standards and can be downloaded not only in Polk County, but in New York City, Mobile, Alabama or Beijing, China. In the lower court, the government used the term "indecent" inter-changeably with "patently offensive" to defend the provisions of the CDA; either way the District Court panel held the term "patently offensive" to be inherently vague. The First Amendment and Due Process do not allow such unfettered discretion in the hands of prosecutors. nnIt will not do to say that a prosecutor's sense of fairness and the Constitution would prevent a successful . . .prosecution for some of the activities seemingly embraced within the sweeping statutory definitions. The hazards of being prosecutor . . . nevertheless remains . . . well-intentioned prosecutors and judicial safeguards do not neutralize the vice of a vague law." nnSee Bagget v. Bullet, 377 U.S. 360, 373 - 374 (1964). The court went on to point out that it could not overlook the vagaries of politics, "what may be, figuratively speaking, one administration's pen may be another's sword." nnReno I at 43. There can be no doubt that Ch. 847, Fla. Stat. (1997) requires the most stringent review for vagueness, since it is a criminal statute that "threatens to inhibit the exercise of constitutionally protected rights." Id. at 48 quoting Colautti v. Franklin, 439 U.S. 379, 391 (1979). See also Kolender v. Lawson, 461 U.S. 352, 358 n8 (1983); Grayned, 408 U.S. at 108 - 109. nnIn Reno II, the District Court issued a preliminary injunction preventing the federal government from enforcing certain provisions of the Child Online Protection Act ("COPA"), which defines "harmful to minors" as material that is obscene or meets a three-part Miller-style test which analyzes each prong for, or with respect to, minors. The court noted that COPA is presumptively invalid and subject to strict scrutiny as a content-based regulation to the extent it applies to non-obscene expression. Even taking into account the government's obviously compelling interest in protecting minors, the court found that the challenged provisions were not narrowly tailored to meet the government's stated goal of regulating commercial pornographers' use of the Internet. Judge Reed found the difficulty of balancing competing interests similar to Justice Kennedy's Supreme Court decision which struck down a statute that criminalized the burning of the American flag: nnThe hard fact is that sometimes we must make decisions that we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases. nnReno II at 498 (quoting: Texas v. Johnson, 491 U.S. 397, 420 (1989) (Kennedy, J., concurring)). nnJudge Reed went on to conclude that his duty to uphold the law served a greater good, and that to deny adults of First Amendment protections would be harmful itself to children, who would eventually inherit those first amendment protections. nnReno II at 498. nnInterestingly, in Reno I it was the government that suggested the societal morals have changed so drastically since the court's decision in FAA v. Pacifica Foundation, 438 U.S. 326 (1978) that the on-line equivalence of George Carlin's monologue or the monologue itself on-line would pass muster under the CDA. In addition to the ambiguous nature of "Patently offensive," the term "prurient" is also unconstitutionally vague. The term is utilized by the Supreme Court in Miller, but is not defined anywhere. With changes in society, come changes in law. Over time, statutory language which was sufficiently understandable upon adoption becomes outdated. Warren v. State, 572 S.2d 1376 (Fla. 1991). Warren was charged with keeping a house of ill-fame prohibited by ?796.01, Fla. Stat. (1987). The trial court granted Warren's Motion to Dismiss and held the terms "prostitution", "lewdness", and "ill-famed" unconstitutionally vague. The District Court, deferring to previous Court decisions upholding the section found however the Court declared the that the words "prostitution" and "lewdness" the term "ill-famed" unconstitutionally vague and no longer understandable given the change in times. nnDespite the fact that the term "ill-fame" had survived many vagueness challenges and was found to be understandable when the legislature first adopted the statute, the court recognized that it had became outdated. Id. at 1377. The term "prurient" suffers from the same constitutional defect by not providing sufficient notice of prohibited conduct, making the statute void for vagueness with respect to this term. The U.S. Supreme Court has set the following as the test for vagueness: "a statute which does not give people of ordinary intelligence fair notice of what constitutes forbidden conduct is vague." Papachrispou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); State v. Winter, 346 S.2d 991 (Fla. 1977); Franklin v. State, 257 S.2d 21 (Fla. 1971). nnThe State of Florida has expanded the U.S. Supreme Court test, stating that the language of a statute must "provide a definite warning of what conduct" is required or prohibited, "measured by common understanding and practice." State v. Bussey, 463 S.2d 1141, 1144 (Fla. 1985). To t
All models were at least 18 years old at the time of their performance. 18 U.S.C. 2257 Record-Keeping Requirements Compliance Statement.
