"[Mother] Shall Not Post on Social Media About [Her Parental Rights Termination] Case"

A Florida appellate court just overturned the injunction on First Amendment grounds.

From Budlove v. Johnson, decided Friday by the Florida Court of Appeal (Judge J. Andrew Atkinson, joined by Judge Craig C. Villanti):

On January 15, 2021, the trial court issued a final judgment terminating Budlove's parental rights with regard to T.B., Budlove's biological child. Each of the appellees was involved in the dependency case that led to the termination….

[O]n August 17, 2021, the trial court found that Budlove had been posting

multiple videos and information on social media, including, but not limited to the following: unredacted police reports from the investigation; confidential information about the child [T.B.] and the child, M.B.; photos of the child, T.B.; details from mediation; and names of all parties, including judges, attorneys, CPIs, detectives, and the caregiver.

{M.B. is Budlove's ex-husband's niece and was previously in the care of Budlove and her ex-husband.} The trial court ordered Budlove to "remove all confidential information relating to [T.B.'s dependency case] from online or from any posting sites within twenty-four (24) hours of service of [the] order."

After learning that Budlove continued to post some things online related to the dependency case even after the August 17 order—although Budlove maintains that none of those posts violated the orders—the five appellees all filed petitions for injunctions against Budlove for stalking. At hearings on the petitions, the appellees claimed that Budlove was harassing and cyberstalking them and causing Budlove's followers on social media platforms to do the same. On April 8, 2022, the trial court announced that it was granting all five petitions for injunctions against Budlove for stalking.

The written order broadly prohibits Budlove from having any contact with the appellees. And "adding to the traditional language in the injunctions," the trial court ordered Budlove in open court to "not post online anything relating to [T.B.'s] dependency case." The trial court explained that "[t]his includes, but is not limited to, the names of parties related to the case, such as case managers, Assistant State Attorneys, caregivers, or other children in this case." The written order then stated the following: "[Budlove] shall not post on social media about case [redacted], includ[ing] but not limited to case managers, parties, and other minor children to [the] case. Anything already posted on social media about case #[redacted] shall be removed." …

"There is no categorical 'harassment exception' to the First Amendment's free speech clause." Saxe v. State Coll. Area Sch. Dist. (3d Cir. 2001); see also NAACP v. Claiborne Hardware Co. (1982) (holding that "[s]peech does not lose its protected character" even when the speech involved publicly listing the names of individuals who did not participate in a boycott); Org. for a Better Austin v. Keefe (1971) (holding that First Amendment protection applied to the distribution of leaflets when those leaflets accused an individual of racism and provided personal information about the person, including his telephone number). While the Florida Legislature has found that individuals should under some circumstances be entitled to an injunction against harassment even when that harassment unquestionably limits a person's speech, courts are not permitted to enjoin a course of conduct to the extent that it encompasses constitutionally protected activity.

Here, the scope of the injunction exceeds that which is permitted under the First Amendment  …. Injunctions which prevent "communications to" an individual can be permissible under the First Amendment, but those enjoining "communications about" an individual are generally unlawful prior restraints. David v. Textor (Fla. 4th DCA 2016) (emphasis in original); accord DiTanna v. Edwards (Fla. 4th DCA 2021); Krapacs v. Bacchus (Fla. 4th DCA 2020) ("[W]e find that the portion of the trial court's order prohibiting Krapacs 'from posting Nisha Bacchus, Nisha Elizabeth Bacchus or any part thereof, on any social media or internet websites'" and ordering him to "'take down all social media and internet posts that reference Nisha Bacchus, Nisha Elizabeth Bacchus, or any part thereof immediately' is overbroad."). This distinction is consistent with several United States Supreme Court decisions, in which the Court distinguished in principle between communications directed at a single person and communications directed to the public. See, e.g., Org. for a Better Austin (holding that a party could not enjoin individuals from distributing leaflets that criticized the party's business practices anywhere in a city because, in part, he was "not attempting to stop the flow of information into his own household, but to the public"); Rowan v. U.S. Post Off. Dep't (1970) (upholding a ban on mailings sent to people who demanded that the mailer stop sending them mail because the restriction was on speech written to an unwilling reader because "no one has a right to press even 'good' ideas on an unwilling recipient").

Despite use of the qualifier "generally," our concurring colleague misreads the preceding paragraph as describing a categorical proscription on injunctions that enjoin speech about an individual. To the contrary, we would agree with our concurring colleague that whether the communication is directed at an individual or merely pertains to an individual is not necessarily "the determining factor." The distinction is, however, a factor, as First Amendment jurisprudence makes clear. And injunctions that enjoin the latter are likely to offend the Constitution because they constitute a content-based restriction on speech.

Similarly, our concurring colleague erroneously suggests that the majority opinion requires that the trial court upon remand must be limited to enjoining only activity "directed at" the appellees. Nothing in this opinion does, or should be construed to, so narrowly confine the trial court's discretion upon remand…. [We] agree with our concurring colleague insofar as he cautions against such a bright-line rule—which would not take into account communications about individuals that constitute unprotected speech such as incitement.

[T]he injunctions granted against Budlove do not merely prohibit Budlove from having any contact with the appellees, sending communications to the appellees, or causing others to send communications to the appellees or inflict some manner of harm against them. In addition to preventing any contact with or communications to the appellees, the trial court ordered that Budlove cease communicating publicly about the appellees, ordering that she refrain from "post[ing] online anything relating to [T.B.]'s dependency case." …

This content-based prior restraint on speech is not tailored at all, much less narrowly tailored. The prospective proscriptions on Budlove's social media communications are, for example, not confined to constitutionally unprotected speech such as "fighting words," "those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction"; "true threats," "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals"; or "incitement," communications "'directed [at] producing imminent lawless action,' and likely to do so."

To the extent that the injunctions broadly prohibit Budlove from merely making public statements about the appellees, T.B., or her dependency case, the injunctions are overbroad and impermissibly enjoin a constitutionally protected course of conduct.

Chief Judge Daniel H. Sleet concurred in the judgment but wrote a separate opinion, which sharply criticized the speech-about vs. speech-to line, but which ultimately seemed to rely simply on the fact that some speech about a person may be unprotected because it falls within a First Amendment exception (e.g., for incitement or threats):

Surely, communications about an individual but not directed to that individual that incite others to violence are not constitutionally protected activity. Accordingly, I conclude that the trial court could enjoin Budlove from making future statements about the petitioners that incite others to violence against petitioners—regardless of whether those communications are directed at petitioners—without violating her First Amendment rights. However, the injunctions' broad ban on Budlove's posting anything at all about the dependency case is not particularly drawn and encompasses "activities [that] may be permissible and proper." Accordingly, I agree that portion of the final order must be reversed….

In conclusion, because many of Budlove's communications pertaining to petitioners amounted to incitements to unlawful actions, I agree that the portion of the trial court's orders finding the existence of previous stalking and thus imposing the injunctions should be affirmed. {[The concurrence apparently refers to this discussion earlier in the opinion:] Petitioners presented evidence that in her electronic posts, Budlove included their contact information, signaled that she condoned slapping by stating that "someone needs to slap her …. I aint saying kill nobody but you … could slap the s___ out of somebody every once and a while," and intimated threats by stating that no one involved in the dependency case would ever be able to live in happiness or bliss, that no one involved in the case would go unpunished, and that if she could not parent her child, no one involved would be able to parent theirs.} … I would reverse the injunctions only to the extent that they prohibit constitutionally protected activity and remand for the trial court to more narrowly craft the injunctions to ensure that no constitutionally protected activity is enjoined, but I would not limit the trial court to prohibiting only communications directed at petitioners. Finally, I would certify conflict with the Fourth District's David line of cases that suggest a bright-line rule that a prohibition by prior restraint on any communications about a petitioner violates the Constitution.

I think the majority got this right, and I think the speech-about / speech-to distinction is critical in such cases: Speech about a person generally can't be punished unless it fits within one of the narrow First Amendment exceptions, while unwanted speech to a person (e.g., unwanted phone calls, letters, e-mails, etc.) can in some situations be properly restricted even if it's outside one of those exceptions. For more on that, see this 2013 article, which focuses on criminal harassment / cyberstalking prosecutions, and this 2021 article, which focuses on overbroad injunctions.