Free Speech

Speech Doesn't Become "Cyberstalking" Just Because It's "Creepy"

|The Volokh Conspiracy |

From Santiago v. Leon, decided earlier this year (correctly, I think) by the Florida Third District Court of Appeal, in an opinion by Judge Edwin A. Scales III, joined by Judges Thomas Logue and Monica Gordo:

Santiago and M.L.'s father, Carlos Leon ("the father"), had a long-distance relationship during which M.L. was born through a surrogate. The relationship ended when M.L. was approximately one and a half years old. {Though Santiago is not listed on M.L.'s birth certificate, Santiago maintains that he executed an agreement to adopt M.L. that was never formally ratified by a court.} …

[T]he father, on behalf of M.L., filed a verified petition against Santiago in the lower court seeking a permanent injunction against Santiago based on Santiago's alleged stalking of M.L. The verified petition alleged that, beginning in February 2017, Santiago had stalked M.L. by: (i) getting a tattoo of M.L.'s name on his body; (ii) posting images of M.L. on his social media accounts (including Facebook and Instagram) and representing thereon that M.L. is Santiago's son; (iii) mailing packages to M.L.; (iv) twice emailing the father to express his love for M.L.; (v) contacting the father's surrogate in search of information about M.L.; (vi) appearing once outside the father and M.L.'s home; and (vii) driving by a restaurant the father and M.L. were patronizing and making eye contact with the father and M.L. The father further represented that Santiago regularly frequented the same restaurants at the same time as the father, oftentimes when M.L. was also present…. [T]he trial court entered a final judgment precluding Santiago both from having any contact with M.L. and from posting any images or comments about M.L. on all social media….

Section 784.048 defines "stalking" as when "[a] person … willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person." Hence, to warrant issuance of a stalking injunction, the record must establish that the respondent either "followed," "harassed," or "cyberstalked" another. Here, the transcripts for the two evidentiary hearings reflect that, aside from determining that Santiago had engaged in "stalking-like" and "creepy" behavior, the lower court neither referred to section 784.048, nor made any express findings with respect to any of the statutory elements for stalking set forth therein. As outlined in more detail below, we conclude that there is not competent substantial evidence in the record to support the trial court's legal determination that Santiago "stalked" M.L.—i.e., that Santiago either followed, harassed, or cyberstalked M.L. so as to warrant the injunction….

We conclude that, in the context of seeking a stalking injunction, the plain and ordinary meaning for "follows" is to tail, shadow, or pursue someone.

In this case, the father established, at most, that Santiago had appeared outside the father and M.L.'s home on one occasion, and that Santiago, who travels in the same social circle as the father, patronizes the same restaurants as the father and M.L. Indeed, at no point during Santiago's testimony was Santiago even asked to explain any of these occurrences. Santiago's conduct, without more, is not an example of "following" for purposes of section 784.048. Moreover, even if Santiago showing up at restaurants frequented by the father and M.L. constitutes "following," the record does not contain any evidence to support a finding that Santiago's conduct was willful and malicious, as required by section 784.048(2)….

Section 784.048 defines "harass" as "engag[ing] in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose." In this case, the father filed a petition on behalf of M.L., not on behalf of M.L. and himself. Consequently, M.L. is the only relevant "person" in this analysis.

To this end, much of Santiago's conduct (sending two emails to the father, contacting the father's surrogate, and regularly patronizing the same restaurants where the father, but not M.L., was present) was not directed at M.L. In fact, as discussed below, it is undisputed that M.L. was unaware of any of Santiago's conduct. Santiago's conduct, therefore, was insufficient to constitute "harassment" of M.L. so as to obtain a stalking injunction on behalf of M.L.

Moreover, because the father testified unequivocally at the hearing below that M.L. was "totally unaware" of Santiago's conduct, there was no evidence that Santiago's conduct had caused "substantial emotional distress" to M.L. so as to constitute "harassment," as required by section 784.048(1)(a).

In addition, even if M.L. had been aware of Santiago's conduct, none of this conduct (getting a tattoo, twice emailing the father, mailing several packages to M.L., contacting the father's surrogate, appearing once outside M.L.'s home, frequenting the same restaurants as M.L., making eye contact with M.L. from his car, and social media posts), without more, amounted to "harassing" under section 784.048(1)(a)…. "[T]he enactor's choice of the term 'substantial emotional distress' establishes a more demanding burden than the dictionary definitions of the word 'harass' might suggest, which include the verbs 'worry,' 'tire out,' 'vex, trouble, or annoy continually or chronically,' 'plague,' 'bedevil,' or 'badger.'" The more demanding burden was not met in this case.

Even if Santiago's conduct could satisfy the statutory definition of "harass" and was willful, the record does not contain any evidence to support a finding that Santiago's conduct was malicious, as required by section 784.048(2), in order to obtain an injunction….

Section 784.048 defines "cyberstalk" 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." …

While Santiago's numerous postings of comments and pictures to his online social media accounts may have referenced M.L. either overtly or covertly, such conduct is insufficient to constitute "cyberstalking." Rather, "Florida case law has mandated that threats via social media be directed to the individual—not by content, but by delivery—to fall within the purview of section 784.0485." Because social media posts are generally delivered to the world at large, the Florida appellate courts have "interpreted 'a course of conduct directed at a specific person' [in section 784.048(1)(d)] to exempt social media messages from qualifying as the type of conduct covered by section 784.0485, Florida Statutes." …

There was no evidence introduced at the two evidentiary hearings conducted below that Santiago had, in any manner, delivered his social media posts to M.L. On the contrary, the father testified that he went to Santiago's social media sites to read the posts….

In addition, even if Santiago had sufficiently directed his social media posts at M.L., there was no evidence presented below that the posts caused any distress to M.L., as required by section 784.048(1)(d). As stated previously, the father testified unequivocally at the hearing below that M.L. was "totally unaware" of all of Santiago's conduct. And again, the record does not contain any evidence to support a finding that Santiago's conduct was malicious, as required by section 784.048(2)….

We recognize that Santiago's conduct might have been, as characterized by the trial court, "creepy." But, for us to affirm the challenged injunction order, the complained-of conduct must meet the express statutory elements. Pursuant to the relevant statutory provisions, in order for the trial court to impose a permanent stalking injunction against Santiago, there must be competent, substantial evidence in the record to support a finding that Santiago "willfully, maliciously, and repeatedly follow[ed], harasse[d], or cyberstalk[ed]" M.L. Because the record is devoid of any such evidence, we are compelled to reverse the final judgment imposing the stalking injunction against him.

 

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  1. In Maskachusetts, if ML were the biological mother of the child and Santiago the biological father, the decision would be the opposite. Right, I don’t know, but the opposite.

    Laws be damned, the concern would be that Santiago might kidnap the child, and the order would be issued.

    Here you have, at best, what? Not even a gay marriage because they weren’t married. What’s on paper — anything???

    And speaking as an educator, not lawyer — an educator who has dealt with parental kidnapping attempts, I’d be worried about Santiago…

    1. an educator who has dealt with parental kidnapping attempts,

      Uh huh.

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