The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From today's opinion of the Florida Court of Appeal in Fox v. Hamptons at Metrowest Condominium Association Inc., which strikes me as generally quite right:
Howard Adam Fox … resides at the Hamptons at MetroWest …, a condominium complex managed by the [Metrowest Condominium] Association. The Association [sued Fox alleging that he had violated the condominium rules by] a continuous course of conduct designed and carried out for the purpose of harassing, intimidating, and threatening other residents, the Association, and its representatives…. [T]he parties reached a settlement agreement in which Fox agreed to cease certain actions. Consequently, the trial court entered a final judgment enforcing the settlement agreement …. Soon thereafter, the Association filed a motion for contempt, alleging that Fox had willfully and intentionally violated the terms of the settlement agreement and final judgment. After a hearing, the trial court found Fox in civil contempt.
In addition to enforcing the provisions of the settlement agreement, the trial court further ordered Fox to stop posting, circulating, and publishing any pictures or personal information about current or future residents, board members, management, employees or personnel of the management company, vendors of the Hamptons, or any other management company of the Hamptons on any website, blog, or social media. He was further ordered to take down all such information currently on any of his websites or blogs. [Footnote: Fox utilized the internet to voice his displeasure over the quality of life at the Hamptons.]
The trial court also prohibited Fox from starting any new blogs, websites or social media websites related to the Hamptons or the Association. It informed Fox that, as his punishment, if someone asked him on his social media page if he enjoyed living at the Hamptons, he could not post a response online. Instead, he would have to call the person to express his concerns.
Notably, these amendments to the settlement agreement appear to be permanent. …
[A] blanket prohibition of [Fox's] online speech constitutes an unconstitutional prior restraint on free speech. … Freedom of speech does not extend to obscenity, defamation, fraud, incitement, true threats, and speech integral to criminal conduct. [But "s]peech that does not fall into these exceptions remains protected."
Importantly, "[n]o prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court." … "The private litigants' interest in protecting their vanity or their commercial self-interest simply does not qualify as grounds for imposing a prior restraint." ….
In this case, the trial court erred when it prohibited Fox from making any statements whatsoever pertaining to the Hamptons or to the Association on his websites, blogs, and social media websites without conducting a proper constitutional inquiry. [Footnote: On remand, the trial court should keep in mind that "[a] content-based restriction on protected speech must survive strict scrutiny." In most cases, where "the provision focuse[s] only on the content of the speech and the direct impact that speech ha[s] on viewers, the provision [is] a content-based restriction."
"To survive strict scrutiny, the Government has the burden of showing that a content-based restriction 'is necessary to serve a compelling state interest.'" Notably, it has been held that "preventing the use of the Internet and other interactive computer services to inflict emotional distress on others serves an important governmental interest." However, "Twitter and Blogs are today's equivalent of a bulletin board that one is free to disregard, in contrast, for example to e-mails or phone calls directed to a victim." [See] United States v. Bowker, 372 F.3d 365, 378 (6th Cir. 2004) (contrasting why a federal telephone harassment statute serves a compelling governmental interest and a statute that made it a criminal offense for three or more persons to assemble on a sidewalk and to be "annoying" to a passerby did not serve a compelling governmental interest) ….]
Accordingly, we reverse the portions of the contempt order prohibiting Fox from posting on any website, blog, or social media, and remand for further proceedings. However, we conclude that the trial court did not err when it enforced the agreed upon terms of the settlement agreement and affirm the contempt order in that respect.
[Footnote moved: Although Fox is not working for a newspaper or magazine, "press includes not only newspapers, books, and magazines, but also humble leaflets and circulars. … [One does] not have to be a card carrying member of the Associated Press or the New York Times to be entitled to the protection of the First Amendment."]
Florida appellate courts have recently been quite firm in striking down speech-restrictive bans on unwanted speech about people, see, e.g., here, here, and here—though unfortunately this reflects some Florida trial courts' willingness to issue such bans.