Is Florida’s Solicitation of a Minor Law Constitutional? What One Major Florida Court Says

November 11, 2025 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

In a rare challenge to the constitutionality of Florida’s law against solicitation of a minor and traveling to meet a minor, Florida’s 5th District Court of Appeal affirmed the statute as being compliant with the First Amendment.

In Florida and throughout the U.S., the First Amendment of the U.S. Constitution is a critical legal protection. The First Amendment ensures that five key freedoms are not infringed – the freedoms of speech, religion, the press, assembly, and petition.

The first of these is freedom of speech. As the First Amendment prohibits any law that restricts this (with a very small number of exceptions), federal and state laws that regulate what individuals speak and write are heavily scrutinized by courts. 

But not all speech is permitted. For example, the U.S. Supreme Court in Brandenburg v. Ohio, 395 U.S. 444 (1969) clarified that speech designed to incite imminent and unlawful violence against a person or a group is not constitutionally protected.

Another domain in which the government can regulate speech is speech relating to the potential (or actual) sexual exploitation of minors. For example, someone cannot solicit a minor (a person under the age of 18) to engage in sexual activity and use a “free speech” defense. United States v. Williams, 553 U.S. 285 (2008); United States v. Hornaday, 392 F.3d 1306 (11th Cir. 2004).

But what if the target was not a minor at all – and instead, was someone believed to be a minor or the parent of a minor by the defendant (e.g. an undercover law enforcement officer)? Given that no actual minor was victimized, can someone’s solicitation of an adult (typically First Amendment-protected) be criminalized because they believed they were speaking to a minor?

This is an intriguing legal question not often answered by Florida courts. In rare cases, however, it has been directly addressed. That’s because Florida’s law making a felony to solicit minors online (Fla. Stat. 847.0135(3)), also makes it a felony to solicit someone believed to be a minor for sexual activity (usually law enforcement running a sting operation).

Important: Solicitation of a minor (or person believed to be a parent or guardian of a minor) is a third-degree felony, punishable by up to five years in prison and a $5,000 fine. Traveling to meet a minor after solicitation is a second-degree felony, punishable by up to 15 years in prison and a $10,000 fine. 

Though the constitutionality of Florida’s law against solicitation of a minor is rarely challenged, one defendant argued in 2016 that the statute allowing the prosecution of solicitation of someone believed to be a minor (but actually an adult) was unconstitutional. Senger v. State, 200 So. 3d 137 (Fla. 5th DCA 2016)

However, Florida’s 5th District Court of Appeal did not agree. Let’s break down this case and why the court upheld Florida’s laws against solicitation of a minor as currently written.

KEY CASE: Senger v. State, 200 So. 3d 137 (Fla. 5th DCA 2016)

In Senger, the defendant (Senger) was arrested and charged with solicitation of a person believed to be the parent of a minor for sex with a minor (Fla. Stat. 847.0135(3)(b)) and traveling for the purpose of unlawful sexual activity after solicitation (Fla. Stat 847.0135(4)(b)). These have the same criminal penalties as soliciting a minor directly. Senger was convicted on both counts.

Senger responded to an advertisement in July 2011, in which an undercover officer posted as a 34-year-old woman “looking for a good man.” Senger emailed the address included on the ad, and the officer immediately noted that she was looking for “family fun” involving a 14-year-old (fictional) minor. 

Senger readily acquiesced and the email chain quickly descended into sexual communications. Eventually, Senger traveled to an agreed upon location to meet up with the fictional parent of the fictional minor for sexual activity involving both the parent and the minor. He was arrested upon arrival, charged, and convicted at trial.

On appeal, Senger raised various issues. First, he argued that he was entrapped both objectively and subjectively by law enforcement. Senger filed multiple motions to dismiss the charges on these grounds before trial, but they were denied by the trial judge. The 5th DCA held that the motions were properly denied, as Senger was predisposed to act criminally (given the emails).

For more on objective and subjective entrapment claims and their effectiveness (or lack thereof) in traveling to meet a minor and solicitation of a minor cases, click here.

Senger also challenged the legality of his sentence, arguing that he should not have been placed on sex offender probation and forced to register as a sex offender. But the 5th DCA disagreed and upheld the conditions of his sentence. For more on the sex offender registry, click here.

But Senger’s most intriguing argument on appeal, not often made, was that Florida’s law against solicitation of a minor as currently written is unconstitutional. The 5th DCA characterized his argument as follows:

“Senger next argues that the trial court erred in denying his motion to dismiss based upon the unconstitutionality of section 847.0135(4)(b). He argues that the statute is overbroad, void for vagueness, and that because his conversation was with an adult, and not a child, this statute is criminalizing ‘adult communications between adults,’ which violates his right to freedom of speech under the First Amendment of the United States Constitution.”

In essence, Senger argued that criminalizing sexual conversations between himself and an adult who was not actually a minor or the parent of a trafficked minor (undercover officer) violated the First Amendment.

However, the 5th DCA summarily rejected this argument. After citing Florida Supreme Court and U.S. Circuit Court precedent on the issue, the court wrote:

“In our analysis, we are reminded that there is a strong presumption that statutes are constitutionally valid, In re Estate of Caldwell, 247 So.2d 1, 3 (Fla.1971), and that we are obligated to interpret statutes in such a manner as to uphold their constitutionality if it is reasonably possible to do so…”

“Senger’s arguments are meritless. First, a person of ordinary intelligence would readily understand that using a computer to communicate with a person who appears to be the parent of a minor child to obtain consent to having anal and oral sex with the child is a criminal act. Second, this statute cannot be construed to be applicable to protected conduct. Third, Senger is not entitled to protection under the First Amendment. The State clearly has a compelling interest in protecting minors from being lured to engage in illegal sexual acts … and speech that is used to further the sexual exploitation of children most certainly does not enjoy constitutional protection.”

Because Senger’s conduct was designed to arrange the commission of a sex crime, the 5th DCA reasoned that finding the statute unconstitutional would allow defendants to convince a child (or guardian of a child) to engage in unlawful sexual activity, since this would be protected speech. But courts have ruled this is not covered by the First Amendment (Williams, Hornaday, etc.).

The Senger court concluded by addressing Senger’s final argument – that his convictions for both solicitation and traveling violated his constitutional protection against double jeopardy (Fifth Amendment). Pursuant to the Florida Supreme Court’s Shelley ruling, the 5th DCA vacated Senger’s solicitation conviction while affirming his traveling conviction – writing:

“In State v. Shelley, 176 So.3d 914, 919 (Fla. 2015), the court held, based on the plain language of section 847.0135, that the Legislature had not explicitly stated its intent to authorize separate convictions and punishments for conduct that constituted both solicitation under section 847.0135(3)(b) and traveling after solicitation under section 847.0135(4)(b). The court also determined that the statutory elements of solicitation are entirely subsumed by the statutory elements of traveling after solicitation, thus, double jeopardy principles prohibited separate convictions based upon the same conduct. Shelley, 176 So.3d at 919.”

“Under these circumstances, the court concluded that the proper remedy is to vacate the solicitation conviction because it is the lesser offense. Id. Because Shelley is directly applicable to the present case, we reverse Senger’s conviction for the solicitation charge and vacate his sentence.”

In sum, Senger v. State, 200 So. 3d 137 (Fla. 5th DCA 2016) is an intriguing case about a rare challenge to the constitutionality of Florida’s law prohibiting solicitation of minors online (or persons believed to be minors), as well as traveling to meet a minor. 

Senger argued that because he was not communicating with a real child (or the parent of a child), that his speech was constitutionally protected. But the 5th DCA rejected this argument, holding that the State has a strong, legitimate interest in preventing child sexual exploitation, including through the use of police sting operations (like the one that ensnared Senger). 

If someone is arrested and formally charged in Florida with traveling to meet a minor and seeks to raise an entrapment defense, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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