Current Laws Concerning Nudity
What is the Law?
It is unlawful to expose or exhibit one's sexual organs in public or on the private premise of another, or so near thereto as to be seen from such private premises, in a vulgar or indecent manner, or to be naked in public except in any place provided or set apart for that purpose. Any person convicted of a violation hereof shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 755.082 or s. 775.083. A mother's breast feeding of her baby does not under any circumstances violate this section.
Case Law involving 800.03
Hoffman v. Carson
No. 40150 - Florida Supreme Court
July 7, 1971
"Because of the statute, the terms in question must be construed as necessarily relating to a lascivious exhibition of those private parts of a person which common propriety requires to be customarily kept covered in the presence of others. The construction necessarily applies also to the language 'or so to expose or exhibit his person in such place, or to go or be naked in such place'." S.800.03
Goodmakers v. State of Florida
No. 84-22 - District Court of Appeals (Second District)
May 11, 1984
3. Obscenity - "For there to be a violation of indecent exposure statute, there must be, coupled with mere nudity, a 'lascivious' exposition or exhibition of defendant's sexual organs."
4. Obscenity - "Lascivious" and "Lewd" exposition or exhibition of defendant's sexual organs within context of indecent exposure statue requires that perpetrator's exposition or exhibition involves unlawful indulgence in lust, eager for sexual indulgence.
5. Defendant's conduct in being nude in place which was not set apart for that purpose, but while asleep or unconscious, motionless, and not in a state of arousal, did not constitute violation of indecent exposure statute.
Payne v. State of Florida
No. 84-1880 -District Court of Appeals (Second District)
October 26, 1984
"This case is controlled by our recent decision in Goodmakers v State. In Goodmakers, we held that in order for there to be a violation of section 800.03 there must be a lascivious exposure of a sexual organ."
Whoever commits such acts as are of a nature to corrupt the public moral, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or 775.083.
Case Law involving 877.03
Wycre v. State of Florida
No. 77440 - Supreme Court of Florida
March 25, 1993
Defendant was convicted in the Circuit Court, Hillborough County, Susan C. Bucklew, J., of loitering for purpose of prostitution and battery of law enforcement officer. The District Court of appeal, 573 So.2d 953, affirmed in part and reversed in part and certified question. The Supreme Court, Barkett, C.J., held that city ordinance making it unlawful to loiter in manner and under circumstances manifesting purpose of engaging in acts of prostitution was unconstitutional.
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Constitutional Law
Federal and State constitutional provisions protecting rights of persons to express themselves protect not only speech and written word, but also conduct intended to communicate.
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Constitutional Law
First Amendment and Florida Constitution protect rights of persons to associate with whom they please and to assemble with others for political or for social purposes.
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Constitutional Law
When lawmakers attempt to restrict or burden fundamental and basic constitutional rights, laws must not only be directed toward legitimate public purpose, but they must be drawn as narrowly as possible.
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Constitutional Law
Statutes cannot be so broad that they prohibit constitutionally protected conduct as well as unprotected conduct.
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Constitutional Law
When legislation is drafted so that it may be applied to conduct that is protected by First Amendment, it is unconstitutionally overbroad.
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Constitutional Law
Overbreadth doctrine permits person whose own speech or conduct may be prohibited to challenge enactment facially because it also threatens others not before the court - those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid, and doctrine contemplates pragmatic judicial assumption that overbroad statue will have chilling effect on protected expression.
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Constitutional Law
Courts may not go so far in narrowing construction of statute to render it constitutional so as to effectively rewrite legislative enactments.
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"We find the ordinance unconstitutional because it unnecessarily infringes on constitutional rights; it is too vague because a violation of the law is determined based on law enforcement officers' discretion; it violates substantive due process by punishing innocent activities; and it impermissibly provides a greater penalty than that imposed by state statutes for similar criminal conduct".
[1,2] The First amendment of the United States Constitution and article 1, section 4 of the Florida Constitution protect the rights of individual to express themselves in a variety of ways. The constitutions protect not only speech and the written word, but also conduct intended to communicate. Further, the First Amendment and article 1, section 5 of the Florida constitution protect the rights of individuals to associate with whom they please and to assemble with others for political or for social purposes.
[3,4] When lawmakers attempt to restrict or burden fundamental and basic rights such as these, the laws must not only be directed toward a legitimate public purpose, but they must be drawn as narrowly as possible. Put another way, statutes cannot be so broad that they prohibit constitutionally protected conduct as well as unprotected conduct.
[5,6] When legislation is drafted so that it may be applied to conduct that is protected by the First Amendment, it is said to be unconstitutionally overbroad. This overbreadth doctrine permits an individual whose own speech or conduct may be prohibited to challenge an enactment facially "because it also threatens others not before the court - those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid".
Harbin v. State of Florida
No HH-118 - District Court of Appeal of Florida, First District
May 16, 1978
Defendant was convicted in the Circuit Court, Gadsden County, Ben C. Willis, J., of disorderly conduct and resisting arrest with violence, and she appealed. Court of Appeal, McCord, C. J., held that defendant had been improperly arrested for disorderly conduct when she in afternoon in her yard began deputy sheriff who had been sent to accompany her husband to couple's trailer while he picked up his clothes after a domestic dispute, inasmuch as defendant's admittedly profane words did not tend to "incite an immediate breach of the peace" given fact that most that could be said about defendant's epithets was that they were offensive to deputy who made arrest and perhaps an object of curiosity to neighbor who opened her window. Conviction for disorderly conduct reversed but conviction for resisting arrest with violence affirmed.
"Of these facts, the most that can be said about appellant's epithets is that they were offensive to the deputy who made the arrest and perhaps an object of curiosity to the neighbor who opened her window. In addition, we find it significant here that the only person who arguably could have been "incite[d to] an immediate breach of the peace" was the deputy who had been sent to the scene to keep the peace."
Kayla Sosnow v. State of Florida
No 96-1191-MMA - Florida Circuit Court of the Eight Judicial Circuit. September 17, 1999
An appeal from the County Court for Baker County; Joseph M. Williams, J.
This case is before us on appeal from a conviction of disorderly conduct pursuant to Florida Statutes section 877.03. We find error and reverse.
On February 24, 1996, Defendant was attending a gathering of approximately 2,500 "Rainbow People" in the Osceola Forest. A "command post" manned by law enforcement officers had been set up specifically for the event. When a telephone call came in from an unknown party complaining about Defendant walking around the campsite topless, an officer was dispatched to investigate.
The officer responded and approached Defendant, who was indeed topless, while she was filling water bottles. He told Defendant that she was in a "general public" area and would need to put on her top, informing her that she would be placed under arrest if she did not comply. After several refusals, by Defendant, the officer arrested her and placed her in a law enforcement van, at which time defendant donned her shirt.
Defendant first assigns error to the trial court's decision to permit the officer to testify that he had received a complaint about Defendant's conduct. "An officer may say what he did pursuant to information but he may not relate the information itself for such is hearsay." Collins v. State, 65 So. 2d 61, 67 (Fla. 1953).
Because the tip was the only evidence that anyone was offended or bothered by Defendant's conduct, without it the state could not prove its case. Disorderly conduct under Florida Statutes section 877.03 must disturb someone other than a law enforcement official, Harbin v. State, 385 So. 2d 8567 (Fla. 1 st DCA 1978), and requires more than :the creation of a mere annoyance." Gonzales v. City of Belle Glade, 287 So. 2d. 669, 679 (Fla. 1973).
Here, there is no evidence in the record that Defendant's actions were more than annoying to those around her, including the officer. Without more, Defendant's conviction cannot stand. Accordingly, the judgment is REVERSED.
Standard Instructions to Juries hearing 800.03 cases
Standard Jury Instructions in Criminal Cases
Florida
July 10, 1997
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Exposure of sexual organs (in a vulgar or indecent manner)
Florida Statutes Section 800.03 [Amended]
Before you can find the defendant guilty of [Indecent Exposure] [or] [Nakedness], the State must prove the following four elements beyond a reasonable doubt:
1. (Defendant) [exposed or exhibited [his] [her] sexual organs.] [was naked.]
2. [He] [She] [did so] [was naked] [in a public place.] [on the private premises of another.] [so near the private premises of
another as to be seen from those private premises.]
3. (Defendant) intended the [exposure or exhibition of [his] [her] sexual organs] [or] [nakedness] to be in a vulgar, indecent,
lewd or lascivious manner.
4. The [exposure or exhibition of the sexual organs] [or] [nakedness] was in a vulgar, indecent, lewd or lascivious manner.
Proof of mere nudity or exposure is not sufficient to sustain a conviction.
As used in regard to this offense the words "vulgar," "indecent," "lewd" and "lascivious" mean the same thing. They mean an unlawful indulgence in lust or a wicked, lustful, unchaste, licentious or sensual intent on the part of the person doing the act.
Acts are not vulgar, indecent, lewd or lascivious unless such acts cause offense to one or more persons viewing those acts or unless the acts substantially intrude upon the right of others.
A "public place" is any place intended or designed to be frequented or resorted to by the public.