[T]he statute could not constitutionally be applied to prohibit the conduct to which Plaintiff purportedly objected. See Street v. New York (1969) (overturning conviction under statute making “it a misdemeanor ‘publicly (to) mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act (any flag of the United States)’ ” and holding that the statute “was unconstitutionally applied in appellant’s case because it permitted him to be punished merely for speaking defiant or contemptuous words about the American flag”); see also United States v. Eichman (1990) (holding “prosecution for burning a United States flag in violation of the Flag Protection Act of 1989” unconstitutional under First Amendment); Texas v. Johnson (1989) (holding Texas statute criminalizing the desecration of venerated objects was unconstitutional as applied to individual who “publicly burn[ed] an American flag as a means of political protest”).

[Footnote moved:] Florida Statutes section 256.10 is qualified by the restrictive phrase “for crass or commercial purposes[.]” The parties dispute whether the media statement satisfies this requirement. The Court need not address the precise argument because, as previously discussed, irrespective of the reach of the statute, it may not be constitutionally applied to prohibit the conduct at issue. … Assuming [for the sake of argument] that, for constitutional purposes the media statement was “commercial” speech, it does not change the outcome as applied to the facts here alleged. “Commercial speech … is undeniably entitled to substantial protection under the First and Fourteenth Amendments of the United States Constitution. … [T]he government may ban commercial speech that is more likely to deceive the public than to inform it, or commercial speech that is related to illegal activity,” but “[i]n most other contexts, the First Amendment prohibits regulation based on the content of the speech.”