Tommie Lynn STALL, Petitioner, STATE of Florida, Respondent; Todd Edward LONG, Petitioner, v. STATE of Florida, Respondent, 570 So. 2d 257

McDONALD, Justice. We have for review State v. Long, 544 So.2d 219 (Fla. 2d DCA 1989), which expressly declared constitutional

section 847.-011, Florida Statutes (1985 & Supp.1986). We have jurisdiction,

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section 3(b)(3), Florida Constitution, and approve the district court’s decision. The state charged Stall, Long, and several other persons with violating the Florida Racketeer Influenced and Corrupt Organization (RICO) Act, sections 895.01-.06, Florida Statutes (1985), predicated on forty-eight alleged violations of Florida’s obscenity statute,

section 847.011, Florida Statutes (1985), and the amended version of the statute that took effect in 1986. The state also charged each defendant individually with one or more counts of violating

section 847.011. The violations allegedly occurred through the showing, sale, distribution, and rental of allegedly obscene writings and tapes, and objects allegedly intended for obscene purposes, between September 12, 1985 and. March 7, 1987. Acting upon the petitioners’ pretrial motion, the trial court dismissed the information and declared

section 847.011 unconstitutional. The trial court held that, among other things, the statute violated Florida’s privacy amendment,

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section 23 of the Florida Constitution. State v. Long, 544 So.2d at 220. The second district reversed, concluding “that the protection afforded by the Florida right to privacy provision does not shield the appellees from criminal prosecution.” Id. at 222. Assuming that the petitioners have vicarious standing to raise their customers’ privacy interest, id. at 221-222, we agree with the district court that their customers’ right of privacy does not extend to the petitioners. If an obscenity statute is constitutional, RICO convictions based on that statute can be upheld. Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 109 S.Ct. 916, 103 L.Ed.2d 34 (1989). This Court has consistently found

section 847.011 to be constitutional. Johnson v. State, 351 So.2d 10 (Fla.1977), upheld a conviction for selling obscene magazines and reaffirmed the principles that obscenity is not protected by the first and fourteenth amendments and that it is subject to regulation under the police power of the states. In Sardiello v. State, 394 So.2d 1016 (Fla.1981), we again upheld the statute where the defendants had been charged with possession of obscene material with intent to sell. Moreover, we addressed the issue presented in the instant case in State v.

Kraham, 360 So.2d 393 (Fla.1978), appeal dismissed, 440 U.S. 941, 99 S.Ct. 1415, 59 L.Ed.2d 630 (1979). The state charged Kraham with selling obscene motion pictures. The trial court dismissed the charges, relying on Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), which held that the state’s power to regulate obscenity “does not extend to mere possession by the individual in the privacy of his own home.” Id. at 568, 89 S.Ct. at 1250.

From that holding the trial court reasoned: “A regulation that criminally punishes one for providing that citizen with material he has a Constitutional right to possess is illogical and arbitrary.” Kraham, 360 So.2d at 394. We reversed based on Johnson. Stanley protects an individual’s private possession of obscene materials, and our research discloses no Florida cases where the state prosecuted individuals merely for possessing obscene materials for their private use. This is not to say, however, that our privacy amendment was meant to protect those persons who deal commercially in obscenity.

The United States Supreme Court has never extended Stanley to sellers and distributors of obscene materials. Rather, that Court has consistently held that “deterrence of the sale of obscene materials is a legitimate end of state anti-obscenity laws.” Fort Wayne Books, 109 S.Ct. at 925. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), sets the standards for state regulation of obscene material. First, “the permissible scope of such regulation” is confined “to works which depict or describe sexual conduct.” Id. at 24, 93 S.Ct. at 2614-15. Then, the basic guidelines are: (

a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (

b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (

c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. Id. (Citations omitted.) Subsection 847.001(7), Florida Statutes (Supp.1986), incorporates these standards: (7) “Obscene” means the status of material which: (

a) The average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest; (

b) Depicts or describes, in a patently offensive way, sexual conduct as specifically defined herein; and (

c) Taken as a whole, lacks serious literary, artistic, political, or scientific value. Subsection 847.001(11) defines sexual conduct: (11) “Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.

The 1985 statute contained a similar standard: For the purpose of this section, the test of whether or not material is obscene is: Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. § 847.011(11), Fla.Stat. (1985). Although the 1986 statute refers only to “obscene” material and then defines that term, the 1985 statute contained the term “obscene, lewd, lascivious, filthy, indecent, sadistic, or masochistic” material. § 847.011(l)(a) (1985). Those words, however, constitute a term of art.

As stated by Justice Harlan almost thirty years ago: The words ... “obscene, lewd, lascivious, indecent, filthy or vile,” connote something that is portrayed in a manner so offensive as to make it unacceptable under current community mores. While in common usage the words have different shades of meaning, the statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex. Although the statute condemns such material irrespective of the effect it may have upon those into whose hands it falls, the early case of United States v.

Bennett, 24 Fed.Cas. p. 1093, No. 14571, put a limiting gloss upon the statutory language: the statute reaches only indecent material which, as now expressed in Roth v. United States, supra, 354 U.S. [476] at 489, 77 S.Ct. [1304] at 1311 [1 L.Ed.2d 1498 (1957) ], “taken as a whole appeals to prurient interest.” Manual Enterprises, Inc. v. Day, 370 U.S. 478, 482-84, 82 S.Ct. 1432, 1434-35, 8 L.Ed.2d 639 (1962) (emphasis in original, footnotes omitted). The Court recently recognized the continued validity of Justice Harlan’s words in Osborne v. Ohio, — U.S. -, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990).

The statutes at issue are sufficiently limited, both by their terms and by common sense, to pass constitutional scrutiny. Osborne also cautions that Stanley is not to be read too broadly. The United States Supreme Court has never done so and has specifically refused to extend Stanley to the sale and distribution of obscene material. E.g., Osborne; Fort Wayne Books; Miller; Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973); United States v. 12 200-Foot Reels of Super 8mm.

Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973). Indeed, that Court has specifically stated “that the protected right to possess obscene material in the privacy of one’s home does not give rise to a correlative right to have someone sell or give it to others.” 12 200-Foot Reels, 413 U.S. at 128, 93 S.Ct. at 2669.

The petitioners claim, however, that we should construe Florida’s privacy amendment to protect sellers and distributors of obscene material because, without such extension, an individual’s right to possess such material is meaningless. The privacy amendment states, in part, that each “person has the right to be let alone and free from governmental intrusion into his private life.” Art. I, § 23, Fla. Const. We first considered this amendment in Winfield v.

Division of Pari-Mutuel Wagering, 477 So.2d 544 (Fla.1985), and held that in assessing governmental intrusion into an individual’s privacy rights the state must demonstrate “that the challenged regulation serves a compelling state interest and accomplishes its goal through the use of the least intrusive means.” Id. at 547. Be that as it may, we need not determine whether the obscenity statute embodies a compelling state interest because the privacy amendment does not apply to vendors of obscene material.

Before the right of privacy attaches “a reasonable expectation of privacy must exist.” Winfield, 477 So.2d at 547. Determining “whether an individual has a legitimate expectation of privacy in any given case must be made by considering all the circumstances, especially objective manifestations of that expectation.” Shaktman v. State, 553 So.2d 148, 153 (Fla. 1989) (Ehrlich, C.J., concurring, emphasis added). Although one may possess obscene material in one’s home, there is no legitimate reasonable expectation of privacy in being able to patronize retail establishments for the purpose of purchasing such material.

Also, it does not appear that the defense in the instant case presented private individuals whose right to possess obscene materials at home had been violated by the instant state action. The state has a legitimate interest “in stemming the tide of commercialized obscenity.” Paris Adult Theatre I, 413 U.S. at 57, 93 S.Ct. at 2635. To that end, even though a connection between obscene material and antisocial behavior is not proved, a legislature can determine such a connection exists and act on it to protect “the social interest in order and morality.” Roth v.

United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942)). Moreover, even if a legislative enactment “reflects unprovable assumptions about what is good for the people, including imponderable aesthetic assumptions, [that] is not a sufficient reason to find that statute unconstitutional.” Paris Adult Theatre I, 413 U.S. at 62, 93 S.Ct. at 2638.

In Paris Adult Theatre I, as in the instant case, the petitioners claimed that “state regulation of access by consenting adults to obscene material violates the constitutionally protected right to privacy enjoyed by petitioners’ customers.” Id. at 65, 93 S.Ct. at 2639. The Court answered by stating: Even assuming that petitioners have vicarious standing to assert potential customers’ rights, it is unavailing to compare a theater, open to the public for a fee, with the private home of Stanley v. Georgia and the marital bedroom of Gris-wold v. Connecticut.

This Court, has, on numerous occasions, refused to hold that commercial ventures such as a motion-picture house are “private” for the purpose of civil rights- litigation and civil rights statutes.... Our prior decisions recognizing a right to privacy guaranteed by the Fourteenth Amendment included “only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty.’ ” This privacy right encompasses and protects the personal intimacies of the home, the family, marriage, motherhood, procreation, and child rearing.

Nothing, however, in this Court’s decisions intimates that there is any “fundamental” privacy right “implicit in the concept of ordered liberty” to watch obscene movies in places of public accommodation.

If obscene material unprotected by the First Amendment in itself carried with it a “penumbra” of constitutionally protected privacy, this Court would not have found it necessary to decide Stanley on the narrow basis of the “privacy of the home,” which was hardly more than a reaffirmation that “a man’s home is his castle.” Moreover, we have declined to equate the privacy of the home relied on in Stanley with a “zone” of “privacy” that follows a distributor or a consumer of obscene materials wherever he goes. The idea of a “privacy” right and a place of public accommodation are, in this context, mutually exclusive.

Id. at 65-67, 93 S.Ct. at 2640 (citations omitted). Regulating commerce in obscenity falls within the state’s “power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole.” Id. at 69, 93 S.Ct. at 2641. Practically any law interferes in some manner with someone’s right of privacy. The difficulty lies in deciding the proper balance between this right and the legitimate interest of the state.

As the representative of the people, the legislature is charged with the responsibility of deciding where to draw the line. Only when that decision clearly transgresses private rights should the courts interfere. In re T.W., 551 So.2d 1186, 1204 (Fla.1989) (Grimes, J., concurring in part, dissenting in part). We are a society of individuals who make a whole community. As quoted by the United States Supreme Court: “... A man may be entitled to read an obscene book in his room, or expose him- ' self indecently there_ We should protect his privacy.

But if he demands a right to obtain the books and pictures he wants in the market, and to foregather in public places — discreet, if you will, but accessible to all — with others who share his tastes, then to grant him his right is to affect the world about the rest of us, and to impinge on other privacies.

Even supposing that each of us can, if he wishes, effectively avert the eye and stop the ear (which, in truth, we cannot), what is commonly read and seen and heard and done intrudes upon us all, want it or not.” Paris Adult Theatre I, 413 U.S. at 59, 93 5.Ct. at 2635-36 (quoting 22 The Public Interest 25-26 (Winter 1971), footnote omitted, emphasis added in Paris Adult Theatre I). The right to possess privately does not equate to the right to sell publicly. In the opinion under review Judge Schoonover correctly stated: It is clear that Florida’s right to privacy is broader than the federal right.

However, it is not so broad that a person can take it with him to the store in order to purchase obscene material — even though he has the right to possess such material in the privacy of his home. Long, 544 So.2d at 223 (citation omitted). The privacy amendment “was not intended to provide an absolute guarantee against all governmental intrusion into the private life of an individual.” Florida Board of Bar Examiners re Applicant, 443 So.2d 71, 74 (Fla.1983). There is no indication that the drafters of

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section 23 meant to broaden the right of privacy as it relates to obscene materials or that the validity of

section 847.011 is affected by the privacy provision. Indeed, had the public been aware of such an application, we seriously doubt that the amendment would have been adopted. In all due respect to our sister court in Hawaii, its decision in State v. Kam, 69 Haw. 483, 748 P.2d 372 (1988), erroneously rationalized that, because Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), allowed a vendor of contraceptives to raise purchasers’ fourteenth amendment claims, a seller of obscene materials can claim and have the same rights as a private citizen to view such materials.

Eisenstadt invalidated a Massachusetts statute controlling the sale of condoms because treating in a dissimilar manner similarly situated married and unmarried persons violated the equal protection clause. Before studying the statute the Court found no valid reason for the statute and rejected the contentions that (1) “the law’s ‘plain purpose is to protect purity, to preserve chastity, to encourage continence and self restraint, to defend the sanctity of the home, and thus to engender in the State and nation a virile and virtuous race of men and women’ ” id. at 448, 92 S.Ct. at 1035 (quoting Commonwealth v.

Allison, 227 Mass. 57, 62, 116 N.E. 265, 266 (1917)), or (2) “to serve the health needs of the community by regulating the distribution of potentially harmful articles,” id., because the statute was, in reality, merely an attempt to regulate morals, not a health measure. The Court made it clear, however, that it based its decision on equal protection grounds because the statute put users of contraceptives on unequal grounds. There is no such distinction between adults who may have access to obscene materials.

Moreover, private users and commercial sellers are separate and distinct classes and may be treated differently. Eisenstadt provides a vehicle, as do other cases, to raise the constitutionality of a statute by holding that persons or entities in different positions have the same rights and must be treated the same. It certainly does not sustain the rationale that, because one has a right to view obscene material in one’s home, statutes forbidding the sale and commercial distribution of such material are invalid. The statutes under review are constitutional; the decision under review is approved. It is so ordered.

SHAW, C.J., and OVERTON, EHRLICH and GRIMES, JJ., concur. BARKETT, J., dissents with an opinion, in which KOGAN, J., concurs. KOGAN, J., dissents with an opinion, in which BARKETT, J., concurs. . The 1985 statute provided, in pertinent part: (1)(

a) A person who knowingly sells ... [or] shows ... any obscene, lewd, lascivious, filthy, indecent, sadistic, or masochistic book, magazine, periodical, pamphlet, newspaper, comic book, story paper, written or printed story or article, writing, paper, card, picture, drawing, photograph, motion-picture film, figure, image, phonograph record, or wire or tape or other recording ... is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083_ (

b) The knowing possession by any person of six or more identical or similar materials, matters, articles, or things coming within the provisions of paragraph (

a) is presumptive evidence of the violation of said paragraph.

(2) A person who knowingly has in his possession, custody, or control any obscene [material] ..., without intent to sell, lend, give away, distribute, transmit, show, transmute, or advertise the same, is guilty of a misdemeanor of the second degree.... § 847.011, Fla.Stat. (1985). . The 1986 statute provides, in part: (l)(

a) Any person who knowingly sells, ... [or] shows ... any obscene book, magazine, periodical, pamphlet, newspaper, comic book, story paper, written or printed story or article, writing, paper, card, picture, drawing, photograph, motion-picture film, figure, image, phonograph record, or wire or tape or other recording ... is guilty of a misdemean- or of the first degree.... (

b) The knowing possession by any person of three or more identical or similar materials, matters, articles, or things coming within the provisions of paragraph (

a) is prima facie evidence of the violation of said paragraph.

(2) A person who knowingly has in his possession, custody, or control any obscene [material] ..., without intent to sell, lend, give away, distribute, transmit, show, transmute, or advertise the same, is guilty of a misdemeanor of the second degree.... § 847.011, Fla.Stat. (Supp.1986). .Art. I, § 23, Fla.Const., provides: Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This

section shall not be construed to limit the public’s right of access to public records and meetings as provided by law. . To the extent that § 847.011(2), Fla.Stat. (1985 & Supp.1986), criminalizes mere possession for private, individual use, that subsection is unconstitutional. That claim, however, is not presented in the instant case. .

The Court went on to explain: The sum of experience, including that of the past two decades, affords an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex. Nothing in the Constitution prohibits a State from reaching such a conclusion and acting on it legislatively simply because there is no conclusive evidence or empirical data. Paris Adult Theatre I v.

Slaton, 413 U.S. 49, 63, 93 S.Ct. 2628, 2638, 37 L.Ed.2d 446 (1973). . Except as stated in n. 4, supra. . As a predicate for its ruling the Court quoted from Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 253-54, 30 L.Ed.2d 225 (1971): "In applying that clause, this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways.

The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.' Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920).” Eisenstadt v.

Baird, 405 U.S. 438, 446-47, 92 S.Ct. 1029, 1034-35, 31 L.Ed.2d 349 (1972) (citations omitted).