The 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
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 on probation for
violating the recruitment law in Alachua County three years ago.
The ruling, though, reversed his conviction and sentence of five years on 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
Attorney General Pam Bondi’s office, which defended the laws, had no immediate comment.
Tallahassee-based Public Defender Nancy Daniels’ office
represented Enoch. She did not immediately return a phone message
Chief District Judge Robert Benton II and Judge Clayton Roberts concurred in the opinion.
The case is Naymontie Nashare Enoch v. State of Florida.