The Volokh Conspiracy
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From Strober v. Harris, decided today by the Florida Court of Appeal (Judges Darryl Casanueva, Nelly Khouzam, and Suzanne Labrit):
Rashida Marie Strober appeals an order dismissing her petition for injunction for protection against stalking filed against Thomas Jerome Harris….
Ms. Strober and Mr. Harris each derive a portion of their incomes from their respective YouTube channels. Ms. Strober, a Florida resident, focuses on the issue of colorism, which she defines as skin tone discrimination within the Black community. Mr. Harris, a Georgia resident, testified that he is "considered the largest Black YouTuber" in his sector and is "mostly focused on Black people and the Black family." Although Mr. Harris testified that he does not consider himself a "shock jock," he admitted that "people do consider me that."
Ms. Strober appeared on Mr. Harris's channel for an interview, which ended up being contentious. Afterward, Ms. Strober asked Mr. Harris to remove the video of her appearance from his channel. Mr. Harris replied that he would remove the video only if Ms. Strober paid him to do so, which she declined to do.
Thereafter, Ms. Strober and Mr. Harris published competing video content on various platforms in which they criticized one another. For Mr. Harris's part, his videos specifically named and focused on Ms. Strober, including one titled "Dear Rashida Strober."
After Mr. Harris began posting these videos about Ms. Strober, she received a variety of threatening and disturbing emails, text messages, and phone calls. In addition to outright death threats, these messages also included (1) pictures of mutilated and dismembered human bodies, (2) a picture of a young Black woman in a casket, (3) photographs edited to show Ms. Strober hanging from a tree, (4) the home addresses of Ms. Strober and other members of her family, and (5) a picture of a location near Ms. Strober's home with the message "see you soon."
Although most of the threatening messages did not identify the sender, some asserted they were from Mr. Harris, others came from addresses associated with his name, and still others stated they were sent on his behalf. However, none came from the email address through which Mr. Harris had previously communicated with Ms. Strober.
Ms. Strober asked for an "injunction for protection against stalking":
She alleged that through videos published to his YouTube channel, Mr. Harris had directly threatened her and had also incited threats against her from his viewers. Among other things, Ms. Strober alleged that Mr. Harris had falsely accused her of child abuse, announced her home address online to his viewers, and published a photograph of her minor daughter. The petition asserted that Ms. Strober had received hundreds of threats and other harassing messages as a result, attaching copies of some of them as exhibits….
Among other statements in the excerpts of his videos played at the hearing, Mr. Harris (1) directed viewers to approach Ms. Strober in public, giving them an "edict" to confront her and "let her know nobody likes you"; (2) dared Ms. Strober to sue him over their dispute, saying "Let's go to war, Bitch. I love to be—I want one of you Black hoes to go to court with me. I want to go to court with one of you Black bitches"; and (3) solicited monetary donations from viewers in order to "make this bitch mad," praising those who donated because "Y'all gon' make her kill herself." …
The trial court concluded that it lacked jurisdiction over Harris, but the Court of Appeal disagreed, and moved on to the merits:
The trial court also ruled that "… the petition for injunction would be denied" … [because] neither the videos nor the threats were sent to Ms. Strober directly by Mr. Harris himself. But … the trial court's analysis reflects a misapprehension of the governing statutory standard.
[In relevant part, Florida Statutes section 784.048(1)(d) define "cyberstalk" to mean] …
To engage 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.
Thus, the statutory definition of cyberstalk includes not only messages "communicate[d]" by a respondent, but also messages "cause[d] to be communicated" as well.
Under the analysis applied by the trial court, however, the mere failure to establish that Mr. Harris himself sent the videos or threats directly to Ms. Strober ended the inquiry. Specifically, the court ruled that "[a]ll of the alleged threatening and harassing communications by the Petitioner [sic] were videos posted for thousands of others to see, and the communications directly received by the petitioner do not have a direct link to the Respondent other than his publicly-posted video." But that begs the question whether the "publicly-posted video[s]" "cause[d the threats] to be communicated"—a crucial part of the statutory definition that the court conspicuously failed to address.
As a result of this narrow interpretation of the statutory standard, the court disregarded Ms. Strober's express allegations and evidence that Mr. Harris had "cause[d the threats] to be communicated" with his videos, even though the court affirmatively found that she began receiving them only after appearing on Mr. Harris's channel.
The court also never addressed Mr. Harris's statement—in a video entered into evidence without objection, admitted to be authentic, and played at the hearing—giving his viewers an "edict" to harass Ms. Strober. And, the court declined to determine whether the threatening messages purporting to be from Mr. Harris were "cause[d] to be communicated" by him. Contrary to the trial court's interpretation of the statute, none of these issues were resolved by the discrete finding that Ms. Strober failed to prove that Mr. Harris sent the threats himself….
The court remanded to the trial court to apply the law. It will be interesting to see how things play out here; the statute expressly excludes "constitutionally protected activity" from "course of conduct," so one question will be whether calling on audience members to remonstrate with someone is constitutionally unprotected.
Another question might be what sort of order the court can issue without being unconstitutionally vague or overbroad (see David v. Textor (Fla. Ct. App. 2016)). An order that, for instance, bars Harris from "communicat[ing], or to caus[ing] to be communicated … language … directed at a [Strober] … causing substantial emotional distress to [her] and serving no legitimate purpose" might well be both vague (what's a legitimate purpose) and overbroad (given that a good deal of criticism could indeed "cause" some listeners to send offensive messages or even threats to the subject of the criticism).
But the Court of Appeal was right, I think, in concluding that the statute goes beyond direct messages from the defendant to the plaintiff.