Fla. law against civilians wearing military uniforms ruled too broad

Friday, November 7, 2008

A Florida law prohibiting people from wearing military uniforms unless they are military servicemembers violates the First Amendment because it bars a substantial amount of protected speech, a Florida appeals court has ruled.

The case arose out of an incident at Orlando International Airport in May 2007. Fernando Montas wore a U.S. Army uniform while standing in an expedited security line for military and security personnel. A Transportation Security Administration agent at the airport noticed that Montas’ hair seemed much longer than that of someone in the military and asked him to produce a military ID. When Montas could not produce one, he was arrested and charged with violating Florida law.

In part, the law says a person not in the military commits a misdemeanor if he or she wears a military uniform and is not a member of that branch of the armed forces. The statute provides exemptions for actors wearing uniforms in theatrical performances, for cadets in any military school and for members of the Boy Scouts and Girl Scouts.

Montas claimed that the statute violated his First Amendment and due-process rights. He contended that he wore the uniform to express his support for members of his family who are in the military. A state trial court agreed with Montas and ruled that the statute violated his constitutional rights.

The state appealed and on Oct. 31, 2008, a Florida appeals court affirmed the lower court decision. The three-judge appeals court ruled in State v. Montas that the statute was overbroad, writing that the law “would criminalize a child wearing his parent’s Army boots or a person wearing an imitation military uniform for Halloween.”

The appeals court agreed that the state had a compelling government interest in “ensuring that the public is not deceived by people impersonating members of the military.” However, the court reasoned that the “statute has the potential to criminalize wholly innocent conduct, and is not narrowly tailored to address its goal.”

The court said the statute also did not include a specific intent requirement: “It contains no requirement that the action be taken with the intent to deceive a reasonable person or in an effort to impersonate a member of the military.”

The court relied in part for its ruling on other Florida court decisions that invalidated a Florida law prohibiting people from the unauthorized wearing of a police badge or other law enforcement insignia. Those decisions — including one by the Florida Supreme Court — noted that the police-insignia law also prohibited much innocent conduct and failed to contain a specific-intent requirement.

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