Protecting First Amendment Freedoms

Selected Cases Defending Free Speech and Association

In Sawyer v. Sandstrom, 615 F.2d 311 (5th Cir. 1980), we successfully argued that a Dade County loitering ordinance was unconstitutionally overbroad, in violation of first amendment associational rights, where the ordinance criminalized being in a public place and associating with individuals whom the defendant knew to be engaged in drug use or possession, without any active participation by the defendant in drug activity.

In Rodriguez v. State, 906 So. 2d 1082 (Fla. 3d DCA 2004), our client was prosecuted for wearing a shirt which had the word “police” written on the front and back. We successfully argued that the statute which criminalized the unlawful display of authorized indicia of law enforcement authority was unconstitutional. The appellate court held that the statute was unconstitutional under the First and Fourteenth Amendments as it was impermissibly based on the type of words written on the shirt, which were not obscene, defamatory, or fighting words. The appellate court also held that it was unconstitutionally overbroad, as it lacked an intent to deceive as an element of the crime. The Supreme Court of Florida agreed. State v. Rodriguez, 920 So. 2d 624 (Fla. 2005).

In State v. O’Daniels, 911 So. 2d 247 (Fla. 3d DCA 2005), we successfully argued that a Miami Beach ordinance that banned all street performances and art vending from a fixed location in the entire city, except for 11 locations where a permit was required, violated the First and Fourteenth Amendments. The appellate court held that the ordinance was broader than necessary to address the city’s traffic concerns, and did not leave open ample alternative channels for communication of information.

Early on, our office challenged Florida’s loitering and prowling statute for overbreadth and vagueness in the landmark case of State v. Ecker, 311 So. 2d 104 (Fla. 1975). The Supreme Court placed a limiting, “breach of the peace” construction to uphold the statute’s constitutionality. A few years later, in B.A.A. v. State, 356 So. 2d 304 (Fla. 1978), we urged that a child’s actions of approaching cars stopped at a traffic light and engaging drivers in conversation, after a warning to leave, did not fall within Ecker’s limiting construction. The Supreme Court agreed, noting that otherwise the statute “could be upheld against anyone at street intersections lawfully seeking donations, for charitable purposes, from drivers of automobiles.” 356 So. 2d at 306. In numerous other cases, we successfully argued that loud, obscene, non-violent verbal protests to the police are protected by the First Amendment, and thus individuals cannot be convicted of resisting an officer without violence or disorderly conduct for these actions. T.J.J. v. State, 913 So. 2d 1267 (Fla. 3d DCA 2005)J.G.D. v. State, 724 So. 2d 711 (Fla. 3d DCA 1999)L.A.T. v. State, 650 So. 2d 214 (Fla. 3d DCA 1995).

In Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla. 1992), assistant public defenders, on their own time, assisted in bringing a class action civil rights lawsuit on behalf of homeless people, establishing their right to engage in essential, life-sustaining acts such as sleeping and bathing on public property when they have absolutely no other place to go. Arresting homeless persons for eating, sleeping and congregating in public was cruel and unusual punishment, in violation of the Eighth Amendment, and interfered with the fundamental right to travel, in violation of the First Amendment. Destroying the personal property of those arrested violated the Fourth Amendment.