In Tomlinson v. Florida, Justice John Couriel wrote for a unanimous Florida Supreme Court exploring the original public meaning of the state’s extortion law.[1] The case turned on the meaning of the word “maliciously.” In Florida, to commit extortion, you must “maliciously” threaten to expose someone with the intent to compel him to do (or not do) something.[2] One lower state court held that “maliciously” had its common meaning: “with ill will, hatred, spite, or an evil intent.”[3] But another held that “maliciously” had a technical, legal definition different from the common one: “intentionally and without lawful justification.”[4]

The question of which definition was right made all the difference in Kevin Tomlinson’s case. He filed a complaint against two Miami real-estate brokers and then told them that he would drop his complaint if they paid him $800,000.[5] These conversations were recorded, and Tomlinson was arrested for extortion.[6] When it came time for the trial judge to instruct the jury, Tomlinson argued that the jury had to find that he acted with ill will, hatred, spite, or an evil intent.[7] The prosecution, on the other hand, argued that it need only prove that he acted intentionally and without lawful justification. The trial court sided with the prosecution, and Tomlinson was convicted after the prosecution cleared this lower bar.[8]

The question on appeal to the Florida Supreme Court was which of the two definitions of “maliciously” is right. To begin answering that question, the court recognized that it must “look for the original meaning of the statutory text to keep us from overriding the bargain struck in the Legislature and signed by the Governor, that is, the law that governs us.”[9] Because the statute does not define “maliciously,” Justice Couriel wrote, the court must look “to the context in which it appears, and what history tells us about how it got there.”[10]

The context is the statute’s “adjacent language,” which reveals what, at bottom, the state must prove to secure an extortion conviction: “intent . . . to extort money or any pecuniary advantage.”[11] Although this doesn’t resolve the whole question, Couriel wrote, it does provide a “clue” about the meaning of “maliciously”: The statute aims at intentional and unlawful action, not hateful action.[12]

History, Couriel concluded, proves that this contextual clue points to the right answer. And it is Couriel’s historical analysis that proves the sophistication of his textual analysis. Florida’s extortion statute goes back to 1868 and borrowed its conception of “maliciously” from English common law.[13] So Couriel gathered English common law decisions going back to 1707 showing that “maliciously” had “a settled legal meaning at English common law.” That legal meaning referred to intentional and unlawful action, not hateful action.

Not content to build his analysis on that cornerstone alone, Couriel proceeded to examine dictionaries from the era.[14] Those tended to draw a distinction between the common and legal definitions of “maliciously.” So too did other courts and legal scholars in the mid- and late 1800s.[15] Couriel noted that in some historical prosecutions for criminal mischief, “maliciously” was given its common definition, but he also noted that in the context of extortion, the legal one was used. Thus, in different contexts, different definitions.[16]

Finally, Couriel looked to past versions of the statute, observing that although the legislature has “fiddled” with the wording, none of its revisions “suggest that it altered which meaning of ‘maliciously’ applied in the context of extortion.”[17] In sum, after a meticulous inquiry into historical sources of meaning, Couriel concluded that “both context and history convince us that the Legislature, in striking the bargain that it did in 1868, used ‘maliciously’ to mean “intentionally and without any lawful justification.”[18]

After distinguishing a prior Florida Supreme Court decision that recited the common definition of “maliciously” while passing on a different question of law, the court upheld Tomlinson’s conviction.

Justice Jorge Labarga concurred in the result only but did not write a separate opinion explaining what, if any, disagreements he had with his colleagues.

[1] Tomlinson v. State, No. SC2021-1204, 2023 WL 5439151 (Fla. Aug. 24, 2023). Justice Meredith Sasso did not participate.

[2] Fla. Stat. Ann. § 836.05 (West).

[3] Calamia v. State, 125 So. 3d 1007, 1010 (Fla. 5th DCA 2013).

[4] Tomlinson v. State, 322 So. 3d 212, 216 (Fla. 3d DCA 2021).

[5] Tomlinson v. State, 2023 WL 5439151 at *1.

[6] Id. at *1–2.

[7] Id. at *2.

[8] Id.

[9] Id. at *3.

[10] Id.

[11] Id. (quoting Fla. Stat. Ann §836.05).

[12] Id. at *4.

[13] Id. at *4–5.

[14] Id. at *5.

[15] Id. at *5–6.

[16] Id. *6.

[17] Id. at *7.

[18] Id. at *8

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