The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
An interesting opinion I just ran across, Gray v. Kohl—it's from 2007, but was just posted on Westlaw:
This action arises from Defendants' prohibition of Plaintiff's distribution of Bibles on a public sidewalk within 500 feet of Key Largo School pursuant to the Florida School Safety Zone Statute, § 810.0975 ….
Plaintiff is a … member of Gideons International … who desires to share his religion with others. One way Plaintiff shares his religion is by distributing Bibles in public….
[O]n January 19, 2007, Plaintiff and other Gideons members distributed Bibles at Key Largo School…. The entire time Plaintiff distributed Bibles at the school, he stood on the public bike path/sidewalk and did not cross onto school grounds at any time.
At approximately 3:30 p.m., Plaintiff received a call on his cell phone from a fellow Gideons member who was distributing Bibles at the school that day. He informed Plaintiff that he and another Gideons member were being arrested…. Plaintiff inquired about what statute had been violated, and Officer Perez responded that the Gideons had no right to be within 500 feet of the school's property….
The Statute reads as follows:
"(1) For the purposes of this section, the term "school safety zone" means in, on, or within 500 feet of any real property owned by or leased to any public or private elementary, middle, or high school or school board and used for elementary, middle, or high school education.
"(2) … (b) During the period from 1 hour prior to the start of a school session until 1 hour after the conclusion of a school session, it is unlawful for any person to enter the premises or trespass within a school safety zone or to remain on such premises or within such school safety zone when that person does not have legitimate business in the school safety zone or any other authorization, license, or invitation to enter or remain in the school safety zone. Any person who violates this subsection commits a misdemeanor of the second degree ….
"(3) This section does not apply to residents or persons engaged in the operation of a licensed commercial business within the school safety zone."
Plaintiff asserts that there is no way Plaintiff could have known that the otherwise lawful distribution of Bibles on a public bike path/sidewalk in front of Key Largo School would be considered a criminal act under the Statute…. Defendants … argue that "the term 'legitimate business' has been construed by numerous Florida and other states' Courts in other statutory contexts and has been determined to be sufficiently definite for constitutional purposes and, when read in context, has an ordinary meaning which is reasonably understandable to a person of ordinary intelligence, to wit: that one entering or remaining on the subject premises must lack any purpose for being there which is connected with the operation of school."
In support of this argument, Defendants cite cases addressing trespass on school grounds …. For example, … [in two past precedents], the court held that a statute prohibiting trespassing on school grounds was not unconstitutionally vague because the phrase "legitimate business on campus" was not defined. The courts reasoned that the phrase applied to a purpose "connected with the operation of the school," and the phrase was clarified by the words "or any other authorization, license, or invitation to remain on campus."
The Statute challenged here, however, is not restricted to legitimate business on the campus, but rather legitimate business that applies to 500 feet of public sidewalks, streets, and other areas around a school. The Court is persuaded by Plaintiff's argument that nearly everyone in the 500 foot zone every day has no business with the school and that if the Statute required a connection to the school, then nearly every person using the sidewalk and street would be in violation of the Statute….
The Court finds that the instant Statute is impermissibly vague because it fails to provide adequate notice of its scope. The Statute contains ambiguous terms, such as "legitimate business," which make it difficult for an individual to determine what type of conduct is unlawful. The phrase "or other license or authorization" in no way clarifies the phrase "legitimate business" in the instant Statute. The Statute is ambiguous as to what type of conduct or activity is prohibited and the undefined term "legitimate business" contributes to the indefiniteness of the Statute….
Plaintiff [also] argues that the Statute vests unfettered discretion with the state as to its prosecution and with police officers as to its enforcement…. A state official or law enforcement officer may arbitrarily prohibit any activity he or she deems not to be "legitimate business."
As discussed previously, innumerable activities with no connection to the School take place within the School's safety zone. Among other things, people walk, bike, jog, and drive within the safety zone, attend the church within the safety zone, patronize the businesses within the safety zone, and visit the homes within the safety zone. As the Statute is written, it applies to all these activities because its plain language applies to every entrance into the school safety zone. …
This point was illustrated during the hearing in this matter, by the exchange between the Court and counsel for the state. At the hearing in this matter, counsel for the state announced that the school principal should decide whether the "legitimate business" standard has been met. The Court asked the state whether there are any guidelines for the school principals to apply in making such a determination, and the state explained that there are no guidelines, it is left to each principal's judgment.
The Court also asked the state if passing out condoms within the school safety zone is a legitimate business, and the state answered that she could come up with some "creative arguments" both ways, and that such a decision should be made by the school principals. This answer illustrates one of the problems with the instant Statute and why it is unconstitutional. School principals, or any decision maker, could, without any guidelines in place, come up with "creative arguments" for permitting or prohibiting speech or conduct in an arbitrary and discriminatory manner.
It is clear to the Court that the Statute is void for vagueness, both in the sense that it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute," and because it encourages arbitrary and erratic arrests and convictions….
I'm quoting here from the decision granting a preliminary injunction, but the court later permanently enjoined the enforcement of the statute.