Free Speech

Distributing Gideon Bibles, School Safety Zones, and "Legitimate Business"

|The Volokh Conspiracy |

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.

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  1. Bible distributors have rights, too, albeit rights no greater than those possessed by anyone distributing other information or things near a school.

    1. Yes.

      ===or within such school safety zone when that person does not have legitimate business in the school safety zone===

      Well there’s the error in the law, or interpretation of it. The First Amendment, for both speech, and religion, was defined by The People as legitimate business. (Note the period at the end of the preceding sentence.)

  2. 2007 WL 3520119

  3. WRT the public sidewalk w/i the “school safety” zone – isn’t ANY business of any kind that’s legitimate “legitimate business?” If there’s such a thing as legitimate, there’s illegitimate, and what could rationally and lawfully be called illegitimate about what the plaintiffs were doing?

  4. The way I read the law, it sounds like you can’t legally drive past a school that’s on a main street in order to get somewhere.

    You have no business in the safety area, and therefore you’re violating the law.

    Or am I missing something?

    1. Nope, I don’t think you are. I also noted that the law exempts business owners and residents who own businesses or live within the zone (respectively) but there doesn’t appear to be an exemption for a customer of those businesses, or a person going to visit a resident.

      There’s also the problem of a government agency — a school being a municipal corporation — defining first amendment protected activity as illegitimate.

    2. So how is the school safety zone not a government taking. For 180 days of the year, every year in perpetuity, property owners within this zone have an increased burden and decreased utility of their property. That is, I’m guessing that the Gideons would likewise have been cited if handing out Bibles while lawfully invited onto private property within that zone. Landowners have therefore lost 1A rights, among others.

  5. …so if the City Counsel or the state legislature passes a NEW law, banning the distribution of “material harmful to minors” within the “safety zone”, we’ll have a MUCH more interesting discussion…..

    1. we’ll have a MUCH more absurd discussion….


      1. All the textbooks that would need to be replaced…

        1. And lots of the books in the school library. . . .

      2. I dunno; if you could find a censorious parent (the kind that spends time objecting to books in the school library) and show them Ezekiel 23:20, for instance, without citing the source, I’m guessing that they might be convinced that it’s “harmful to minors” and that it shouldn’t be distributed near a school.

  6. How about providing venue for decision? “I” for Incomplete, professor.
    Gray v. Kohl, 568 F.Supp.2d 1378 (S.D. Fla. 2008)

    1. Professor Viking doesn’t provide a venue for decision. He only provides a venue for discussion, and occasional pontificating (and for some, regular pontificating).

      1. The dreaded spell check has once again relocated the Professor from Ukraine to Norway!

        1. If I’m going to be “Lance Knightstick”, then, EV can (and, perhaps, should) be Professor Viking.

    2. The first thing that pops up in Google when you type in “Gray v. Kohl” is the citation. Are you also upset that Prof. Volokh didn’t provide you with the briefs from both sides of the case? Or amici briefs? Did you go to law school, and, if yes, did you ever say to one of your professors that you were unable to read a case because they did not provide you with a proper, specific citation? Also, if the answer to the previous question was yes and yes, how many days or weeks (can’t possibly be more) did you last there? These are blog posts, not legal briefs, and are not subject to the Bluebook System of Citations.

  7. I wonder about the people/person who was so upset at the sight of a person holding a Bible and speaking that they would feel the need to call the police? “Bible starts with B which rhymes with T which stands for trouble in River City, I mean trouble.”

    1. Almost as bad as passing out copies of Capt. Billy’s Whiz Bang.

  8. I’m still giddy that there was a (small) victory for the First Amendment eleven years ago.

  9. Correct legal decision, however, what an odd tactic…

    “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.”

    What kid walking to school is going to say–Oooh Bibles! Thanks!

    Also, Key Largo isn’t Times Square and how many kids actually walk to school?

    1. Just because there is a school there, that doesn’t mean that there aren’t also adults in the area.

  10. School safety zone = constitution free zone?
    Sort of like airports and courthouses?
    Lock them all up.

  11. Many people do a lot of business (buying, selling, advertising) on their phones anymore and students of all ages seem to have phones. If my company sells a student my product over the phone while said student is in the playground, have we broken the law? If the student has ordered a pizza and my driver delivers it, can the driver be arrested?

    1. Would a gifted and talented 12-yr-old student who is playing the stock market today and puts in an order to sell something short be breaking the law, or would the broker who took the order be liable?

      1. I didn’t read carefully, the law says a person has to enter the exclusion zone. So a student calls an Uber driver to give them a ride home. The point is, the law is also controlling what students may do.

        1. “(3) This section does not apply to residents or persons engaged in the operation of a licensed commercial business within the school safety zone.”

          Kind of covers your scenarios.

          1. Yes, indeed, for locally licensed businesses. When the USA becomes a legal recreational marijuana nation like our neighbor to the north I guess vendors can stroll around that exclusion zone and make life easier for students without a lot of time to go shopping.

  12. I onyemaechi Utah here by agree to work with the Gideon Bible as a distributor with perfect heart and thanking the founder whom God is using effectivelly may God bless you more Amen.

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