The Volokh Conspiracy
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Another Attempt to Vanish My Posts About Kelly Hyman v. Alex Daoud—Seemingly Backed by Court Order
[UPDATE 10/28/2024 3:57 pm: The business day after the motion below was filed, the court vacated the Mar. 13 order in relevant part.]
Kelly Hyman is a lawyer, frequent FoxNews.com contributor, and a media and Twitter commentator in this year's presidential campaign. She had also (in Hyman v. Daoud) sued her father, a disgraced former Miami Beach mayor, over a real estate transaction. And, for several years, there have been attempts to vanish from the Internet various materials related to that dispute—including attempts to vanish news stories about it, including my own articles.
On Oct. 17, I got an e-mail related to the latest such attempt:
[Subject] Request for Link Removal as per Court Order
Hello,
I am reaching out to request the removal of the following link from your website, as per a court order:
- https://reason.com/volokh/2020/11/24/an-odd-response-from-one-of-the-lawyers-in-the-kelly-hyman-v-alex-daoud-case/
- https://reason.com/volokh/2023/12/14/attempt-to-vanish-my-article-about-attempt-to-vanish-my-article-about-attempt-to-vanish-other-articles/
I've attached a copy of the court order for you to look over. Please proceed with removing the links at your earliest convenience.
Thank you for taking the time to look into this matter.
Sincerely,
Angelina
The court order, issued in the initial Hyman v. Daoud case in March of this year, specifically states, "This order requires the taking down or deletion or deindexing the following links on the internet:," followed by several links, including those on sites run by (among others) CBS News, Miami Herald, the Daily Mail, and me.
It orders "any internet-related services, internet service provider, host provider and/or search engine" to remove or deindex those items, and "remove and cause to be removed from any Site … all … [materials] related to directly or indirectly to this lawsuit, and/or Kelly Hyman [or certain relatives] and/or any website or posting defamatory, slander, or any statements against" those people.
And it states, "This order along with any court documents related directly or indirectly to this matter is prohibited from being posted including, but not limited to any website, and/or social media and/or internet."
I think this order is unjustified, and certainly shouldn't be a basis for the removal of any my posts. Fortunately, Marc Randazza and Kylie Werk of the Randazza Legal Group, PLLC agreed to represent me pro bono in challenging the order. In particular, we argue, among other things (see Hyman v. Daoud, No. 2012-044972-CA-01, Doc. No. 48 (Fla. Cir. Ct. Miami-Dade County Oct. 25, 2024):
[1.] Under Florida law, the order cannot bind me (even though it mentions some of my posts). Florida Rule of Civil Procedure 1.610(c) provides that injunctions are "binding on the parties to the action, their officers, agents, servants, employees, and attorneys and on those persons in active concert or participation with them." But I'm entirely unconnected to Hyman or Daoud, except to the extent that I've written about their litigation. See, e.g., Spagnuolo v. Ins. Office of Am., Inc. (Fla. 5th DCA 2023) ("to the extent that" the injunction "purports to enjoin anybody other than" the parties, it must be "quashed because the trial court has no jurisdiction over non-parties"); Two Islands Dev. Corp. v. Clarke (Fla. 3d DCA 2015) ("'A court is without jurisdiction to issue an injunction which would interfere with the rights of those who are not parties to the action. An injunction can lie only when its scope is limited in effect to the rights of parties before the court.'").
[2.] Applying the order to me would in any event violate the Due Process Clause. Nonparties to a lawsuit, who received "neither notice of, nor sufficient representation in" the proceedings, cannot be bound by the court's decision "as a matter of federal due process." Richards v. Jefferson County, Ala. (1996). "Due process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." United Student Aid Funds, Inc. v. Espinosa (2010). Florida courts naturally agree: Even when "consistent with Florida Rule of Civil Procedure 1.610(c), an injunction may bind a non-party," "even a non-party with notice of the injunction cannot be bound without having an opportunity to be heard." Midnight Express Power Boats, Inc. v. Aguilar (Fla. 3d DCA 2024).
[3.] The Order, if applied to my posts, would violate the First Amendment. Those posts consist entirely of statements from public records, other accurate factual statements, and opinion. They don't fit within any First Amendment exception, such as for true threats of violence, or for libel, and they haven't been found to so fit. A court thus may not order that I remove them. (I expect the same is true about many of the other items listed in the order, including those from mainstream media sources; but I suspect I only have standing to challenge the inclusion of my own posts.)
[4.] The Order is also unconstitutional to the extent it prohibits "[t]his order along with any court documents related directly or indirectly to this matter" from being published on "any website, and/or social media and/or internet." The republication of judicial documents is itself protected under the First Amendment. See, e.g., Florida Star v. B.J.F. (1989); Cox Broad. Corp. v. Cohn (1975).
There's more going on in the motion as well, but these are some of the core points. I hope the court will turn to this promptly. Many thanks to Marc Randazza and Kylie Werk for representing me on this.
I should note that I'm not intending to remove the posts mentioned in the order, because I believe the order doesn't bind me under Florida law (as well as being transparently invalid under the First Amendment and the Due Process Clause in the event it is read as purporting to bind me).
