TALLAHASSEE, Fla. — An appellate court on July 27 struck down a Florida law prohibiting “electronic communication” by criminal gangs, but it upheld another statute that makes it a felony to recruit new gang members if they must commit a crime to join.
A three-judge panel of the 1st District Court of Appeal ruled the electronic-communication ban violates due process and First Amendment free-speech and -association rights because it applies even to messages concerning non-criminal gang activities.
The statute prohibits gang members from posting audio, video or still images on the Internet or other electronic communication to intimidate or harass others or to advertise their presence in the community.
The recruitment law passed constitutional muster because it applies only if criminal activity is a condition of membership. The communication law lacks that limitation.
“The state’s interest in controlling gangs’ criminal and delinquent acts is a compelling one, but the government cannot effect its purposes in a provision that criminalizes innocent conduct,” District Judge Stephanie Ray wrote for the panel.
The unanimous opinion upheld Naymontie Nashare Enoch’s conviction and three-year prison sentence followed by two years of probation for violating the recruitment law in Alachua County three years ago.
The ruling, though, reversed his conviction and sentence of five years of probation under the communication statute.
Enoch pleaded no contest to both counts. But he reserved his right to appeal Circuit Judge Mark Moseley’s refusal to dismiss the charges on constitutional grounds.
Ray wrote that in the recruitment law, the Legislature “attempted to strike a proper balance between protecting fundamental rights and using legitimate government police powers to fight the scourge of gang-related criminal activity.”
She noted several other states, including California, Texas, Indiana and Idaho, have passed similar laws, some of which also have been upheld by the courts.
The communications law, though, is so broad that it prohibits “both criminal and innocent activity and, in doing so, prohibits expression and associational activity with a purpose to benefit, promote or further even the non-criminal interests of a criminal gang,” Ray wrote.
Attorney General Pam Bondi’s office defended the laws. Bondi spokesman John Lucas said the opinion was still under review, but it was likely the communication law decision would be appealed to the Florida Supreme Court.
Tallahassee-based Public Defender Nancy Daniels’ office represented Enoch. She did not return a phone message seeking comment in time for this story.
Chief District Judge Robert Benton II and Judge Clayton Roberts concurred in the opinion.
The case is Naymontie Nashare Enoch v. State of Florida, 1D10-3443.