The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[UPDATE: I didn't know this at first, but apparently Jason Miller is the Jason Miller who was an adviser to the 2016 and 2020 Trump campaigns; Arlene Delgado was a political commentator; Miller was to be President Trump's White House Communication Director but withdrew when his affair with Delgado came to light. This wasn't mentioned in the opinion—I saw the opinion just because it came up on my daily Westlaw search for new First Amendment cases—and doesn't affect the legal questions; but I thought I'd note it, because it helps show how such restraining orders affect speech about political players as well as about purely private citizens.]
From today's Florida Court of Appeal decision in Delgado v. Miller, written by Chief Judge Kevin Emas and joined by Judges Ivan Fernandez and Eric Hendon:
Petitioner Arlene Delgado (the Mother) and Respondent Jason Miller (the Father) are the parents of W.L.D., born in July of 2017. What began as a paternity action and progressed to remaining issues of timesharing and child support, has devolved into escalating rounds of pugilistic litigation. Given the antagonism displayed over the course of the proceedings below, we can only be sympathetic to the sincere efforts of the trial court and general magistrate to reduce the level of discord. There are, however, limits to the exercise of the trial court's broad discretion….
The order at issue arose in the context of the Mother's motion to compel production of certain documentation from the Father in advance of a scheduled final hearing. Although the recommended order (and the trial court's order adopting same) essentially granted the Mother the relief she requested, the general magistrate included three paragraphs at the end of the recommended order which are the subject of this petition:
- Neither party shall disclose or reveal to any 3rd party, directly or indirectly, through any social media or otherwise, the details of any financial information, including but not limited to income or employment information, of any nature, of the other party.
- Neither party shall contact, directly or indirectly, the other party's existing clients and/or employers and/or contractors or potential clients and/or employers and/or contractors, other than through the legitimate discovery process provided by the Rules of Civil and Family Procedure.
- Neither party shall engage in any social media of any nature which comments, directly or indirectly, on the other party's emotional or mental health or personal behavior….
Paragraph fifteen, in particular, commonly referred to as a gag order, represents a classic example of a prior restraint on speech: one that prohibits free speech before it is spoken…. Where a trial court imposes such restrictions on a party's free speech rights, it must make findings that support the need for these limitations, and the order must be "narrowly tailored to preclude only extra-judicial statements which are substantially likely to materially prejudice the trial."
Neither the trial court nor the general magistrate made findings of necessity, nor did they engage in any tailoring to narrow or limit the scope to those extrajudicial statements substantially likely to materially prejudice the trial. Indeed, paragraph fifteen of the order, which purports to prohibit either party from "engag[ing] in any social media of any nature which comments, directly or indirectly, on the other party's emotional or mental health or personal behavior," is so overbroad as to render its boundaries indiscernible.
Paragraphs thirteen and fourteen, though less sweeping in degree than paragraph fifteen, and arguably less onerous in their resulting burden on free-speech rights, nevertheless suffer infirmities similar in kind to paragraph fifteen. These paragraphs also contain terms that are vague and undefined, creating confusion in their meaning and the potential for inconsistent or arbitrary enforcement.
Further, the restrictions contained in all three paragraphs were imposed sua sponte by the general magistrate in its recommended order, and adopted thereafter by the trial court without a hearing. Neither party moved for the imposition of such restrictions, and while the general magistrate informally raised the topic and inquired whether the parties might consent to such restrictions, no such consent was given, nor were the parties placed on notice before the hearing that the imposition of such restrictions would be considered in addressing the merits of the Mother's motion to compel production of documents….
Very much the right result; Florida appellate courts have had several decisions in the last several years that have rightly struck down such overbroad injunctions (e.g., Logue v. Book and David v. Textor).