The Volokh Conspiracy

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Volokh Conspiracy

Court ordered a billionaire businessman not to speak online about a rival businessman, and to remove posts about him


Alki David arrives at the L.A. premiere of "Lord of the Freaks" in June in Los Angeles. (Richard Shotwell/Invision/Associated Press)

In late 2014, a Florida trial court issued an injunction ordering billionaire businessman Alki David not to post about businessman John Textor and to remove posts about Textor. Yesterday, the Florida Court of Appeal quite rightly held that the injunction violated the First Amendment—but such injunctions have regrettably become common and often stay in place when the speaker lacks David's financial resources and thus can't hire a lawyer for an appeal.

Here are the facts, from David v. Textor (Fla. Ct. App. Jan. 6, 2016) (some paragraph breaks added throughout the quotes):

David and Textor both have companies which produce holograms used in the music industry. In May 2014, shortly before the Billboard Music Awards show, it was announced that Textor's company, Pulse Entertainment, would show a Michael Jackson hologram performance. Immediately thereafter, David's company, Hologram USA, Inc., and others filed suit for patent infringement against Pulse in the U.S. District Court in Nevada, a suit which continues. Pulse countered by filing a business tort suit against David in California in June 2014, which eventually was dismissed.

In July 2014, Textor filed an ex parte petition for protection pursuant to [Florida cyberstalking law]…. Textor alleged that there were no pending suits between the parties, not mentioning the substantial litigation between their companies.

The alleged acts of cyberstalking were (1) a May 2014 text from David to Textor, demanding that Textor give credit to David's company at the Billboard Awards show for the hologram, for which David would drop his patent infringement suit; otherwise, he threatened to increase damages in that suit and stated, "You will be ruined I promise you"; (2) an e-mail from David to business associates (other than Textor) that he had more information about Textor that would be released soon, but not specifying what that information was; (3) an online article from July 2014 on, in which David was quoted as saying that he "would have killed [Textor] if he could"; and (4) articles about Textor that David posted and reposted in various online outlets.

… [Textor also alleged] that David had written another email regarding settlement of the lawsuit in which he threatened to expose photographs, lawsuits by disgruntled employees of Textor, and illicit money transfers if Textor did not end the lawsuit by his company. At the end of the e-mail, David wrote, "I hope for you and your family's sake you are man enough to put an end to this now."

David also "tagged" Textor's Instagram account with a photo of Hitler and a caption, "Sorry if I have offended any #neonazis." This tagging allowed any followers of Textor to see the Hitler photo and the caption. Attached to the petition were the e-mails, the Hitler photo, and tweets sent by David referring to various suits involving Textor, including the State of Florida's attempt to recoup the cash it had provided Textor's Florida company, Digital Domain.

The trial court granted the amended petition, prohibiting David from communicating with Textor or posting any information about him online, and ordering that he remove any materials he already had posted from the websites.

The Court of Appeal concluded that David's messages weren't "cyberstalking" under Florida law, because a reasonable person in Textor's shoes wouldn't find that they caused "substantial emotional distress" (which is required for cyberstalking law to apply) and because some of them served a "legitimate purpose" (which prevents cyberstalking law from applying):

Textor alleged that two communications came directly from David to him, both of which were demands that Textor drop his lawsuit. In neither of them did David make any threat to Textor's safety. From the full e-mail, David's threats that Textor would be "sorry" if he didn't settle must be taken in the context of the lawsuit and its potential cost to Textor.

Because of the existence of the various lawsuits and the heated controversy over the hologram patents, these e-mails had a legitimate purpose in trying to get Textor to drop what David considered a spurious lawsuit. Moreover, nothing in the e-mails should have caused substantial emotional distress to Textor, himself a sophisticated businessman. Indeed, that they did not is reflected in Textor's refusal to settle or adhere to their terms.

The postings online are also not communications which would cause substantial emotional distress. Most of them are simply retweets of articles or headlines involving Textor. That they may be embarrassing to Textor is not at all the same as causing him substantial emotional distress sufficient to obtain an injunction. Moreover, the postings are more like the blog posts in Chevaldina, which [another Florida appellate court] found were not directed at a specific person, as they were simply generally criticizing the business involved to the blogging public.

Even the alleged physical threat made by David in an online interview, that David would have killed Textor if he could have, would not cause a reasonable person substantial emotional distress. In the online article the author stated that "David joked" when stating that he would have killed Textor. Spoken to a journalist for publication, it hardly amounts to an actual and credible threat of violence to Textor.

In sum, none of the allegations in Textor's petition show acts constituting cyberstalking, in that a reasonable person would not suffer substantial emotional distress over them. Those communications made directly to Textor served a legitimate purpose.

Moreover, the court held, the injunction violated the First Amendment:

"[A] temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns." An injunction may not be directed to prevent defamatory speech. "'[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.'" Section 784.048 itself recognizes the First Amendment rights of individuals by concluding that a "course of conduct" for purposes of the statute does not include protected speech. This includes speech that may be offensive or vituperative. .

Here, the online postings simply provide information, gleaned from other sources, regarding Textor and the many lawsuits against him. The injunction prevents not only communications to Textor, but also communications about Textor. Such prohibition by prior restraint violates the Constitution. If David's communications about Textor are defamatory, then Textor can sue David for damages.

For more on why I think this is right—and on the distinction between speech to individual people who don't want to receive it (which can often be restricted) and speech about people who don't want to be talked about—see this article.