'We once again caution trial courts to be hesitant with respect to granting injunctions that restrict protected First Amendment speech'

|The Volokh Conspiracy |

So said the Florida District Court of Appeal, in O'Neill v. Goodwin (decided late last month):

In this case, the trial court placed a premade stamp on the final order stating that Appellant "shall not 'post' on the internet regarding" Appellee. As seen in David v. Textor, 41 Fla. L. Weekly D131 (Fla. 4th DCA Jan. 6, 2016), and Neptune v. Lanoue, 178 So. 3d 520 (Fla. 4th DCA 2015), such a restriction "prevents not only communications to [the petitioner], but also communications about [the petitioner]." David, 41 Fla. L. Weekly at D132. "Such prohibition by prior restraint violates the Constitution." Id.

There is insufficient support for the trial court's finding that Appellant had no legitimate purpose for contacting Appellee; the injunction in this case is therefore reversed. We also encourage trial courts to more carefully craft injunctions so as to balance the need for protection for petitioners with the constitutional rights of defendants. See Neptune, 178 So. 3d at 522-23 (holding that an injunction that "paints with unduly broad strokes on a very large canvas and goes far beyond [the purpose of the injunction] … must be reformulated and narrowly tailored in order to more properly balance the desire to protect the [victim] from harassment and stalking with the need to safeguard Appellant's First Amendment rights.").

Sounds right to me, for reasons I discussed in this article, though it's unfortunate that courts need so much reminding. The facts of the case are pretty interesting: Joseph O'Neill is a Columbia University film student, who is working on a documentary—called "The Instagram Suicide(s)" that mentions someone (Sara Skye Goodwin) he knew a few years ago:

[O'Neill] met [Goodwin] three years prior to the allegations at issue. [Goodwin] briefly worked with [O'Neill] until she began to believe he was romantically interested in her. At that point, [Goodwin] informed [O'Neill] she wanted no further contact with him. [O'Neill] complied and two years passed without contact between the parties.

During this two-year period, [O'Neill] attended film school and began to make a documentary exploring subcultures on social media. This documentary prominently featured [Goodwin] and made use of photographs she had posted on her Instagram page. Although [Goodwin] had previously blocked [O'Neill] from viewing her Instagram profile, she admitted that she had accepted anonymous friend requests that allowed these unnamed persons access to her photos.

[O'Neill] testified that he was worried about the possible negative effects this documentary might have for [Goodwin], and that he was particularly concerned about violent reactions by [Goodwin]'s boyfriend, who was also portrayed in a negative light in the film. Accordingly, [O'Neill] visited [Goodwin]'s home to inform her of the pending film. [Goodwin] did not challenge [O'Neill]'s contention that this was the purpose of his visit and acknowledged that [O'Neill] had never been violent towards her or threatened her. Nevertheless, [Goodwin] informed [O'Neill] that she would call the police if [O'Neill] did not leave her home. [O'Neill] left without fully explaining the purpose of his visit.

A "few days to a few weeks later," [Goodwin] received a text message from [O'Neill] again seeking to inform her about the upcoming documentary. [Goodwin] found the documentary online and became upset about the contents thereof, which she felt unfairly portrayed her and her friends. [Goodwin] also learned that [O'Neill] had visited her friends in Jacksonville to discuss the film with them. After the one exchange of text messages between the parties, there was no further communication between them.

[Goodwin] subsequently filed a petition for an injunction for protection against stalking, alleging that [O'Neill] had "threatened to harm" her or her family members, and "cyber stalked" her Instagram account and "stole pictures" she had posted. [Goodwin] claimed she was "very afraid about what he might do next."

After an evidentiary hearing, the trial court granted the motion for permanent injunction. A Final Judgment of Injunction for Protection Against Stalking was entered against [O'Neill], permanently barring him from contacting [Goodwin], posting on the internet regarding her, possessing a firearm, or defacing/destroying [Goodwin]'s personal property.

Note that Goodwin didn't just get an order telling O'Neill to stop talking to her—she got the court to order O'Neill to stop talking about her: The order said that O'Neill "shall not 'post' on the internet regarding" Goodwin, which presumably means that he couldn't post clips from the documentary that discussed her, couldn't discuss her in any discussions of his documentary online and so on.

I corresponded with O'Neill, and he said that the documentary has not yet been released and that the court erred in saying that Goodwin found the documentary online; all she could have seen, O'Neill said, is "a four-minute promotional trailer that [O'Neill] was using to acquire funding and distribution for the film." O'Neill also said that (1) a photograph of Goodwin is being used in the promotional poster for the film, though Goodwin is not recognizable from the poster alone ("[t]he poster's focus is centered around the arm/wrists"); (2) the photograph was taken with Goodwin's and her mother's written consent, when Goodwin was 16 (she was 19 at the time of the injunction hearing), and they consented to its use in the poster; and (3) the plan is for some of Goodwin's photos to appear within the film, but only in a relatively small part of it. (I tried to reach Goodwin, but couldn't track her down.)

The Florida Court of Appeal reversed the finding of "harassment" and thus the order based on that finding. The Florida statute defines "harass[ing]" as limited to behavior that "serves no legitimate purpose," and, the Court of Appeal concluded, O'Neill's behavior did have a legitimate purpose:

Whether the purpose for contact is "legitimate" is evaluated on a case-by-case basis and the term "legitimate" seems to be lacking a precise definition. However, courts have generally held that contact is legitimate when there is a reason for the contact other than to harass the victim. [Examples omitted.-EV] …

In this case, both [O'Neill] and [Goodwin] agree the purpose of [O'Neill]'s communication with [Goodwin] was to inform her of the pending documentary. While the creation of this documentary certainly appears to be unwelcome, alerting [Goodwin] to its existence was a legitimate reason for contact. There was no competent substantial evidence to support the trial court's finding that it was not. Therefore, we are compelled to reverse the entry of the injunction.

And then the Court of Appeal cautioned lower courts about the First Amendment issue—not strictly necessary, given that the injunction wasn't even statutorily authorized, but probably a wise admonition nonetheless: when lower courts err often, they may need some explicit warnings.

A dissenting judge agreed that "some of the injunction prohibitions are overly broad and violate the [O'Neill]'s First Amendment right," but would have remanded for the imposition of a narrower injunction:

There are additional facts not mentioned in the majority opinion, which the majority does not feel are pertinent to the issue of whether the [O'Neill]'s conduct was sufficient to constitute stalking behavior justifying an injunction as provided by the statutes. I contend those facts are material, and the evidence proves, if not directly, then at least circumstantially, that the [O'Neill]'s behavior justifies an injunction…. I would affirm the entry of an injunction, but reverse and remand for the trial court to impose an injunction that does not unduly infringe on the [O'Neill]'s First Amendment rights.

The dissenting judge, though, didn't offer any further details.