The Volokh Conspiracy
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I've blogged often about how criminal harassment bans, "cyberstalking" bans and restraining order laws have been morphing: They began by restricting unwanted speech to a person, but they've often been used to restrict speech about a person.
Many recent appellate court decisions, fortunately, have been rejecting this process. Here's the latest example from the Florida Court of Appeal (Scott v. Blum) reversing a "stop talking about plaintiff" order. (Incidentally, like many such orders, this came with a ban on gun possession by the defendant.)
First, the facts (some paragraph breaks added throughout):
Mr. Blum is a process server and a member of the National Association of Professional Process Servers (NAPPS). [Randy] Scott is a former process server and former member of NAPPS…. Mr. Blum testified that Mr. Scott sent emails about Mr. Blum and Mr. Blum's family, partners, and former employees to 2200 NAPPS members.
The emails consisted of links to articles, blog posts, or videos. In some instances, the articles or blog posts were written by Mr. Scott. The tenor of the emails, articles, blog posts, and videos was derogatory, and the allegations within them were potentially damaging to Mr. Blum's business and reputation. Copies of the emails supported Mr. Blum's testimony.
Mr. Blum testified that none of the emails were sent directly to him but that he knows about them because they were forwarded by the recipients to him or he received phone calls about them. The emails, articles, blog posts, and videos did not contain threats against Mr. Blum. However, Mr. Blum claimed that the content of the emails, articles, blog posts, and videos caused him emotional distress; he had trouble sleeping and eating, the emails were constantly on his mind, and he constantly had to defend himself to people.
Mr. Scott testified that his emails discussed many people within NAPPS or connected to NAPPS and were not directed at Mr. Blum.
Note that this wasn't a defamation lawsuit: The court opinion mentions no finding that Scott's statements were false. (Indeed, the trial court specifically said, "I don't give injunctions for libel.") Nonetheless, the trial court found that Scott's speech had been cyberstalking, defined by Florida law as
engag[ing] in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.
And the trial court then enjoined Scott from cyberstalking, which in context meant saying things about Blum, if those statements "caus[ed] emotional distress" and were seen as "serving no legitimate purpose."
The trial court was vague on what the injunction covered:
[Trial judge]: I grant the petition. Y'all wait and sign for a copy of it.
[Blum's lawyer]: Your Honor, thank you for that. Will the petition deal with the removal of any of the old posts?
[Trial judge]: I'm done. I granted the petition. That's all I can say. That's all I can do.
[Scott]: Your Honor?
[Trial judge]: I'm done, D-O-N-E, done.
[Scott]: What can I and can't I do?
[Trial judge]: I don't give legal advice. I just grant or deny petitions. I granted it.
But given that the trial court found that Scott's past speech was found to be cyberstalking, and the injunction barred cyberstalking, then it follows that the injunction would prohibit speech like the past speech.
Scott appealed—without a lawyer, just as at trial (giving his victory extra points for high degree of difficulty)—arguing that his speech wasn't "cyberstalking" under Florida law and that the injunction violated the First Amendment. The court didn't decide the First Amendment question, because it found that Scott was right as a matter of Florida law. The requirement that the speech be "directed at" a target, the court concluded, only included speech to a person and not speech to the public about a person:
"[W]here comments are made on an electronic medium to be read by others, they cannot be said to be directed to a particular person." In Horowitz v. Horowitz, this court stated:
Mr. Horowitz's Facebook posts do not meet the statutory definition of cyberstalking for two reasons. First, the posts were not "directed at a specific person." The testimony showed that Mr. Horowitz posted the information to his own Facebook page. Screenshots of the posts admitted into evidence confirm that they were posted to Mr. Horowitz's page and that Mrs. Horowitz was not "tagged" or mentioned, nor were the posts directed to her in any obvious way.
Likewise, the emails here do not meet the statutory definition of cyberstalking. The emails were not "addressed" to Mr. Blum, and nothing indicates that Mr. Blum was an intended recipient.
Mr. Scott did not communicate words, images or language via email or electronic communication directly to Mr. Blum. The videos do not constitute evidence of the communication of "words, images, or language … directed at a specific person, causing substantial emotional distress to that person." The emails sent to 2,200 NAPPS members do not constitute words "directed at a specific person" for purposes of the cyberstalking statute simply because they are about Mr. Blum. Nor did Mr. Scott "cause to be communicated" words, images or language via email or electronic communication to Mr. Blum.
Further, "[t]hat [the articles and videos] may be embarrassing to [Mr. Blum] is not at all the same as causing him substantial emotional distress sufficient to obtain an injunction." The same is true for the emails sent to the NAPPS members. Mr. Scott did not make any threats to Mr. Blum's safety. Mr. Blum's distress relates to his business reputation and personal reputation among his colleagues. A reasonable person would not suffer substantial emotional distress over the emails, articles, blog posts and videos at issue. That the articles written by Mr. Scott contain false allegations or embarrassing information is not a basis for a cyberstalking injunction.
Angry social media postings are now common. Jilted lovers, jilted tenants, and attention-seeking bloggers spew their anger into fiber-optic cables and cyberspace. But analytically, and legally, these rants are essentially the electronic successors of the pre-blog, solo complainant holding a poster on a public sidewalk in front of an auto dealer that proclaimed, "DON'T BUY HERE! ONLY LEMONS FROM THESE CROOKS!" Existing and prospective customers of the auto dealership considering such a poster made up their minds based on their own experience and research. If and when a hypothetical complainant with the poster walked into the showroom and harangued individual customers, or threatened violence, however, the previously-protected opinion crossed the border into the land of trespass, business interference, and amenability to tailored injunctive relief. The same well-developed body of law allows the complaining blogger to complain, with liability for money damages for defamation if the complaints are untruthful and satisfy the elements of that cause of action. Injunctive relief to prohibit such complaints is another matter altogether.
Chevaldina v. R.K./FL Mgmt., Inc. (Fla. Ct. App. 2014) (addressing an order enjoining tortious interference, stalking, trespass and defamatory blogs).