The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Judiciary
BILL: CS/SB 1664
INTRODUCER: Judiciary Committee; and Senator Perry, and others
SUBJECT: Unlawful Assemblies
DATE: February 1, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Ravelo Cibula JU Fav/CS
2. CJ
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1664 addresses unlawful assemblies that specifically target residences to harass or disturb
people inside their homes.
Specifically, the bill amends the unlawful assembly statute to expressly prohibit a person from
picketing or protesting before or about another person’s home in order to harass or disturb the
person in his or her home. A person who engages in the prohibited conduct commits a second
degree misdemeanor, punishable by up to 60 days in county jail and a $500 fine.
1
The bill takes effect October 1, 2022.
II. Present Situation:
The rights to acquire, possess, and protect private property are basic principles afforded under
the both the Constitution of the United States and the Florida Constitution. While the
government has interest in protecting private property rights, those interests must also coincide
with other basic legal protections, such as the freedom to assemble. Balancing these rights,
especially when they seemingly compete with one another, is a delicate issue. For example,
while first amendment interests are broadly protected, courts have recognized that state and local
1
Sections 775.082 and 775.083, F.S.
REVISED: BILL: CS/SB 1664 Page 2
authorities may broadly use their “police powers”
2
to protect the rights of individuals during
confrontational protests.
The United States Supreme has frequently addressed this issue. The Court found, for example,
that certain regulations, including a 36-foot buffer zone restricting protestors at the entrance to an
abortion clinic were justified by the government’s interest in allowing the clinic to remain
operational and allowing patients to walk in without close physical confrontations.
3
The Court
has recognized that some protests effect the rights of others, specifically commenting that “if
overamplified loudspeakers assault the citizenry, government may turn them down.”
4
In
summary, courts have recognized the government’s ability to “to shut off discourse solely to
protect others from hearing it is dependent upon a showing that substantial privacy interests are
being invaded in an essentially intolerable manner.”
5
Unlawful Assembly
Although protests, at face value, are legal, certain offenses may occur at or near a protest that are
not protected under the First Amendment right to assemble. For example, Florida’s unlawful
assembly statute, s. 877.02, F.S., prohibits three or more persons from meeting together to
commit a “breach of the peace” or “any other unlawful act.”
6
A violation of the unlawful
assembly statute is a second degree misdemeanor, punishable by up to 60 days in county jail and
a $500 fine.
7
As defined in s. 877.03, F.S., “breach of the peace or disorderly conduct” includes:
Brawling or fighting,
Corrupting the public morals,
Outraging the sense of public decency, or
Affecting the peace and quiet of persons who may witness them.
8
Moreover, these activities are a second degree misdemeanor offense separate and apart from the
unlawful assembly statute. Accordingly, the unlawful assembly statute defines an offense that is
a subset of the offenses constituting a breach of the peace or disorderly conduct. The unlawful
assembly statute differs from the breach of peace or disorderly conduct statute by requiring that a
person arrested for unlawful assembly be held in custody until he or she is brought before a court
to establish bail or bond.
9
The Florida Supreme Court has held that the common law definition of “unlawful assembly”
must be satisfied in order for the offense to satisfy constitutional muster. Specifically, the Court
held that the offense only covers situations where 1) three or more people assemble, 2) have a
2
Local and State officials have broad powers to create laws for the health, safety, morals, and general welfare of the public.
See Legal Information Institute, Cornell Law School, police powers, https://www.law.cornell.edu/wex/police_powers (last
visited Jan. 28, 2022).
3
Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 768-71 (1994).
4
Grayned v. City of Rockford, 408 U.S. 104, 116 (1972).
5
Cohen v. California, 403 U.S. 15, 21 (1971).
6
Section 870.02(1), F.S.
7
Section 775.082, F.S., and s. 775.083, F.S.
8
Section 877.03, F.S.
9
Section 870.02(2), F.S. BILL: CS/SB 1664 Page 3
common unlawful purpose, and 3) assemble in such a manner as to give rational, firm, and
courageous persons in the neighborhood of the assembly a well-grounded fear of a breach of the
peace.
10
Recent Targeted Protests at Private Residences
Protests, especially for highly-publicized issues, have sometimes targeted specific individual’s
homes. Both Senators Marco Rubio and Rick Scott have had protests outside their private
residences.
11
The local Mayors of Chicago and Portland have likewise drawn protests to their
private residences.
12,
13
In Orlando, groups stood outside of a home owned by an officer involved
in the death of George Floyd, with one local resident summarizing “about 50 people showed up
to the neighborhood, honking horns and yelling until around 3:30 a.m.”
14
III. Effect of Proposed Changes:
The bill creates a new criminal offense to picket or protest before or about the residence or
dwelling of any person with the intent to harass or disturb that person in his or her home. The bill
provides a definition of “dwelling” to include “any building, structure, or portion thereof which
is occupied as, or designed or intended for occupancy as, a residence by one or more families.” A
person who violates this section commits a second degree misdemeanor and may be sentenced to
up to 60 days in county jail and assessed a $500 fine.
The bill specifically states that the purpose of the new offense is to “serve the states significant
interest in protecting the well-being, tranquility, and privacy of the home and protecting residents
from the detrimental effect of targeted picketing.”
The bill takes effect October 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
10
State v. Simpson, 347 So. 2d 414, 415 (Fla. 1977).
11
Jacob Ogles, Protesters to convene on Marco Rubio’s, Rick Scott’s homes to demand challenge to Joe Biden win, FLORIDA
POLITICS, Jan. 1, 2021, available at https://floridapolitics.com/archives/405357-protesters-to-convene-on-marco-rubios-rick-
scotts-homes-to-demand-challenge-to-joe-biden-win/. See also, Lautaro Grinspan, Trump supporters gather in front of Marco
Rubio’s West Miami home. ‘You work for us.’, THE MIAMI HERALD, Jan. 3 2021, available at
https://www.spokesman.com/stories/2021/jan/03/trump-supporters-gather-in-front-of-marco-rubios-w/.
12
Madeline Holcombe, Chicago protesters rally at mayor’s house a day after clashes with police, CNN, July 19, 2020,
available at https://www.cnn.com/2020/07/19/us/chicago-protest-lori-lightfoot/index.html.
13
The Portland Mayor actually planned to move out of his apartment due to the targeted protests at his home. Andrew Hay,
Portland mayor to leave home targeted by protestors, REUTERS, Sept. 2, 2020, available at
https://www.reuters.com/article/us-global-race-usa-protests-portland/portland-mayor-to-leave-home-targeted-by-protesters-
idUSKBN25T32R.
14
FOX 35 ORLANDO, Protesters remain at Orlando-area home owned by officer connected to George Floyd’s death, May 30,
2020, available at https://www.fox35orlando.com/news/protesters-remain-at-orlando-area-home-owned-by-officer-
connected-to-george-floyds-death. BILL: CS/SB 1664 Page 4
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues
Courts analyze regulations effecting speech under two different standards depending on if
the regulation is content-neutral or content-based.
15
Content-neutral restrictions, such as
limitations on protests which interrupt a meeting of the Legislature, are subject to
intermediate scrutiny. Content-based restrictions, such as regulations regarding indecent
language, are presumably unconstitutional and must survive the highest level of judicial
scrutiny strict scrutiny. In order to pass constitutional muster, a content-based regulation
must be shown to be narrowly tailored to serve a compelling government interest.
Content-neutral regulations, on the other hand, must satisfy intermediate scrutiny and be
tailored to a significant government interest, while leaving open alterative channels of
communication.
The bill is specifically tailored to protest activity that leads to the intentional harassment
of a particular residence, as opposed to protests activity generally. This regulatory
activity is clearly content-neutral, as it not regulating a particular ideology or type of
speech. The bill only outlaws picketing and protest activity to the extent that such activity
is specifically towards an individual person or residence, as opposed to merely the public
at large, or an overall ideology.
16
Courts are likely to find that the state has a well vested
interest in protecting both property rights and the rights of citizens to be free from
confrontational protests within their own dwellings.
17
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
15
Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 164 (2015)
16
A similar statute was upheld by the United States Supreme Court precisely for this reason. Specifically, the court found
that the use of the words “dwelling” and “residence” in an ordinance outlawing “picketing before or about the residence or
dwelling” suggested that the ordinance was appropriately limited to regulate certain conduct at particular residences and was
not overbroad so as to unconstitutionally limit picketing through the whole residential area. Frisby v. Schultz, 487 U.S. 474,
482 (1988).
17
See footnotes 3-5 and accompanying text.
BILL: CS/SB 1664 Page 5
B. Private Sector Impact:
None.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 870.02, Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Judiciary on January 31, 2022
The CS provides a definition for “dwelling” as used in the bill to include “any building,
structure, or portion thereof which is occupied as, or designed or intended for occupancy
as, a residence by one or more families.”
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.