DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ASHLEY ANN KRAPACS,
Appellant,
v.
NISHA E. BACCHUS,
Appellee.
No. 4D19-641
[August 12, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Stefanie Moon, Judge; L.T. Case No. DVCE19-0341.
Devika L. Carr of D. Carr Law, Coral Springs and Ron Renzy of
Wallberg & Renzy, P.A., Coral Springs, for appellant.
Joseph A. DiRuzzo, III of DiRuzzo & Company, Fort Lauderdale, for
appellee.
KLINGENSMITH, J.
Appellant, Ashley Krapacs, appeals the trial court’s stalking
injunction entered against her and in favor of Nisha Bacchus. Because
the conduct complained of does not meet the legal requirements for an
injunction under Florida Statute Chapter 784, we reverse.
This case initially sprang from Krapacs’ own petition for an injunction
against her former boyfriend due to domestic violence concerns.
Attorney Russel J. Williams represented the former boyfriend before the
trial court while Krapacs, also an attorney, represented herself. After her
petition was denied, Krapacs wrote an article stating that Williams lied to
the judge on the record during these proceedings. As a result, Williams
hired attorney Bacchus to sue Krapacs for defamation. Krapacs
responded by hiring an attorney and writing several social media posts
disparaging Bacchus with personal insults for representing Williams in
the defamation suit against her.
Bacchus became particularly concerned after Krapacs posted a meme
on Instagram captioned “when opposing counsel tries to use the same
exact trick you saw in your last case.” The image showed an adult
sticking his head through a pet door, only to face a child pointing a toy
gun at him. Additionally, Krapacs created a blog post that included a
picture of Bacchus with a hyperlink directing readers to Bacchus’s
attorney profile on her firm’s website. The post claimed Bacchus filed a
frivolous lawsuit against Krapacs, accused Bacchus of being a bully, and
included a vulgar insult.
As the defamation suit progressed against her, Krapacs continued to
tag 1 Bacchus in her posts, hurled various insults at Bacchus and her
law firm, and identified the model of the car Bacchus drove. In one of
her final Facebook posts, Krapacs stated she was going to connect with
Bacchus’s former clients to sue her for malpractice in small claims court.
Krapacs also tagged Bacchus on several of these posts as well as through
other social media platforms. On one occasion, upon learning of the
posts, Bacchus stepped out of a meeting and spent the next four hours
un-tagging herself from them as Krapacs continued to re-tag her.
Bacchus sought to stop this behavior by filing a petition for an
injunction, alleging Krapacs was cyberstalking her as defined by section
784.048(1)(d), Florida Statutes (2018), through her social media posts.
The trial court granted a temporary injunction against Krapacs pending a
final hearing. At that final hearing, Bacchus described the posts as
increasingly aggressive and personal. Bacchus testified that she felt
violated, scared, and alarmed when Krapacs referenced the make of her
car because she did not know how Krapacs discovered that personal
detail. Bacchus also said she felt extremely anxious when she found out
Krapacs was attempting to reach her former clients to file bar complaints
and malpractice suits against her. Bacchus also stated that because of
Krapacs’ posts, she had difficulty sleeping, headaches, and severe
stomach aches.
After hearing the testimony, the trial court entered a final judgment of
injunction for protection against stalking. The judge directed the clerk to
narrowly tailor the injunction to balance Krapacs’ First Amendment
rights with Bacchus’s safety. To achieve this goal, the trial court limited
Krapacs’ use of her office space since both Krapacs and Bacchus had
offices in the same building. Under this limitation, Krapacs could only
go to her office once a week to retrieve mail and could no longer hold
1 “Tagging” occurs when person A uses person B’s username to link their post
to person B’s account. This makes the post visible to person B’s social media
contacts and creates a direct hyperlink between person A’s post and person B’s
account.
2
client meetings in her office. The trial court also prohibited Krapacs from
posting on social media about Bacchus regarding private matters that
cause both substantial emotional distress and serve no legitimate
purpose. Finally, the trial court required Krapacs to take down all the
offending posts about Bacchus. From that injunction this appeal
followed.
“The standard of review for an order imposing a permanent injunction
is abuse of discretion.” Weisberg v. Albert,
123 So. 3d 663, 664 (Fla. 4th
DCA 2013). “But the question of whether the evidence is legally
sufficient to justify imposing an injunction is a question of law that we
review de novo.” Pickett v. Copeland,
236 So. 3d 1142, 1144 (Fla. 1st
DCA 2018).
“[C]yberstalking is harassment via electronic communications.” Scott
v. Blum,
191 So. 3d 502, 504 (Fla. 2d DCA 2016). Section 784.0485(1),
Florida Statutes (2018), defines it as “engag[ing] 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.” §
784.048(1)(d), Fla. Stat. (2018) (emphasis added).
Under section 784.048(1)(b), a “course of conduct” is defined as “a
pattern of conduct composed of a series of acts over a period of time,
however short, which evidences a continuity of purpose.” However, “[t]he
term does not include constitutionally protected activity such as
picketing or other organized protests.” See
id. In David v. Schack,
192
So. 3d 625, 627-28 (Fla. 4th DCA 2016), this court articulated the
requirements for an injunction to protect against stalking:
[T]he petitioner must allege and prove two separate instances
of stalking. “Each incident of stalking must be proven by
competent, substantial evidence to support an injunction
against stalking.” When considering the sufficiency of the
evidence, “[c]ourts apply a reasonable person standard, not a
subjective standard, to determine whether an incident
causes substantial emotional distress.”
(citations omitted).
Krapacs’ actions do not qualify as cyberstalking because they did not
constitute a pattern of conduct composed of a series of acts over time
evidencing a continuity of purpose. See § 784.048(1)(d), Fla. Stat. (2018);
3
Packal v. Johnson,
226 So. 3d 337, 338 (Fla. 5th DCA 2017) (finding that
multiple acts can “amount to one continuous course of conduct,
establishing only one instance of harassment”). Krapacs’ act of retagging
Bacchus in her social media posts for four hours constitutes one
instance of qualifying conduct under the statute. See Thoma v. O’Neal,
180 So. 3d 1157, 1160 (Fla. 4th DCA 2015). This conduct, by itself, is
akin to an attempt to force unwanted speech upon Bacchus and
therefore “‘crosses the line’ in terms of First Amendment protection.” See
id. However, the other acts Bacchus described are constitutionally
protected activities and do not qualify as additional instances of repeated
stalking. See id.; Chevaldina v. R.K./FL Mgmt., Inc.,
133 So. 3d 1086,
1092 (Fla. 3d DCA 2014). Because Krapacs’ actions do not qualify as
cyberstalking under the statute, we need not address whether Bacchus
suffered substantial emotional distress or whether Krapacs’ posts served
a legitimate purpose and were directed at Bacchus.
Krapacs also argues that the blanket injunction issued by the trial
court imposes a “prior restraint” on her First Amendment right to free
speech. Like statutes that regulate speech, court-ordered injunctions
that regulate speech are also subject to First Amendment scrutiny. See
Madsen v. Women’s Health Ctr., Inc.,
512 U.S. 753, 757 (1994). “The term
prior restraint is used ‘to describe administrative and judicial orders
forbidding certain communications when issued in advance of the time
that such communications are to occur.’” Alexander v. United States,
509 U.S. 544, 550 (1993) (citation omitted). “Temporary restraining
orders and permanent injunctions—i.e., court orders that actually forbid
speech activities—are classic examples of prior restraints.” See
id.
The fact that speech may now occur in “cyberspace—the ‘vast
democratic forums of the Internet’ in general, and social media in
particular,” does not mean that governmental regulation of that speech is
beyond the reach of First Amendment analysis and scrutiny. See
Packingham v. North Carolina,
137 S. Ct. 1730, 1735 (2017) (internal
citations omitted) (invalidating a North Carolina statute that prohibited
registered sex offenders from accessing commercial social-networking
websites); see also Citizens United v. Fed. Elections Comm’n,
558 U.S.
310, 326 (2010) (stating that “[c]ourts, too, are bound by the First
Amendment [and] [w]e must decline to draw, and then redraw,
constitutional lines based on the particular media or technology used”).
A case from the Third District, Chevaldina, is
instructive. 133 So. 3d
at 1086. In Chevaldina, the Third District considered whether certain
internet blog postings constituted “cyberstalking” and were “‘incidents of
violence,’ i.e., stalking, as to justify an injunction pursuant to section
4
784.046.”
Id. at 1091.
The respondent had blogged extensively about
the petitioner, and many of the blog posts were “arguably defamatory.”
Id. at 1089. The trial court entered an injunction prohibiting the
respondent from making more defamatory blog posts.
Id. In reversing
the lower court’s order, the Third District held that the petitioner failed to
introduce evidence that the blog posts at issue were being used “to
communicate, or to cause to be communicated, words, images, or
language . . . directed at a specific person, causing substantial emotional
distress to that person and serving no legitimate purpose.”
Id. at 1091-
92
(quoting § 784.048(1)(d), Fla. Stat.).
The Third District noted that an injunction should “never be broader
than is necessary to secure to the injured party relief warranted by the
circumstances involved in the particular case.”
Id. at 1091 (citing DeRitis
v. AHZ Corp.,
444 So. 2d 93, 94 (Fla. 4th DCA 1984)). Further, the court
stated that the “[e]ntry of an overly broad injunction can constitute a
violation of the First Amendment.”
Id. The Chevaldina court concluded
by stating that:
Angry social media postings are now common. Jilted lovers,
jilted tenants, and attention-seeking bloggers spew their
anger into fiber-optic cables and cyberspace. But
analytically, and legally, these rants are essentially the
electronic successors of the pre-blog, solo complainant
holding a poster on a public sidewalk in front of an auto
dealer that proclaimed, “DON’T BUY HERE! ONLY LEMONS
FROM THESE CROOKS!” Existing and prospective
customers of the auto dealership considering such a poster
made up their minds based on their own experience and
research. If and when a hypothetical complainant with the
poster walked into the showroom and harangued individual
customers, or threatened violence, however, the previously-
protected opinion crossed the border into the land of
trespass, business interference, and amenability to tailored
injunctive relief. The same well-developed body of law allows
the complaining blogger to complain, with liability for money
damages for defamation if the complaints are untruthful and
satisfy the elements of that cause of action. Injunctive relief
to prohibit such complaints is another matter altogether.
Id. at 1092. Thus, it remains clear that injunctions are not available to
stop someone from uttering insults or falsehoods. See Vrasic v. Leibel,
106 So. 3d 485, 486 (Fla. 4th DCA 2013) (“[I]njunctive relief is not
available to prohibit the making of defamatory or libelous statements.”);
5
see also Concerned Citizens for Judicial Fairness, Inc. v. Yacucci,
162 So.
3d 68, 72 (Fla. 4th DCA 2014) (same).
Applying these standards, we consider whether the trial court’s order
enjoining Krapacs from future posting of messages about Bacchus was
an unconstitutional prior restraint on expression covered by the First
Amendment. A regulation of speech that “references” Bacchus is
necessarily a regulation of the subject matter of that speech. The
injunction in this case fully regulates and puts limits on any expression
that relates to a particular subject, i.e., Bacchus. As such, we 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 Krapacs] shall take down all social
media and internet posts that reference Nisha Bacchus, Nisha Elizabeth
Bacchus, or any part thereof immediately” is overbroad. In line with
First Amendment principles, this court emphasized that an injunction
banning such posts about a person instead of directed at a person is a
prior restraint:
Additionally, we once again caution trial courts to be
hesitant with respect to granting injunctions that restrict
First Amendment Speech. In this case, the trial court placed
a premade stamp on the final order stating that Appellant
“shall not ‘post’ on the internet regarding” Appellee . . .
“Such prohibition by prior restraint violated the
Constitution.”
O’Neil v. Goodwin,
195 So. 3d 411, 414 (Fla. 4th DCA 2016) (citations
omitted).
This court reversed a similar injunction in David v. Textor,
189 So. 3d
871, 874 (Fla. 4th DCA 2016), that banned an appellant not only from
communicating with the alleged victim, Textor, but also from posting
Textor’s information online or communicating with Textor through third
parties. There, this court held that banning someone from posting about
someone else on social media was a prior restraint.
Id. at 876. “The
injunction prevents not only communications to Textor, but also
communications about Textor . . . If [appellant’s] communications about
Textor are defamatory, then Textor can sue [appellant] for damages.”
Id.
Other than the one episode where Krapacs retagged Bacchus for four
hours, Krapacs did not cross over any hypothetical lines as described in
Chevaldina.
See 133 So. 3d at 1092. For instance, she did not go into
Bacchus’s office uninvited (a trespass), harangue her existing clients
6
(business interference), or threaten violence (incitement). See
id. As the
Third District noted, those actions would clearly not be protected and if
they occurred could be addressed through injunctive relief. See
id.
Therefore, we reverse the injunction entered against Krapacs. Even
though injunctive relief is not available to Bacchus at this point, Krapacs
is not necessarily immune from liability for her actions. 2 If Krapacs’
statements and complaints are found to be untruthful and satisfy the
necessary elements for defamation, or if her actions constitute an
intentional infliction of emotional distress, tortious interference with
business relationships, or satisfy the requirements of some other cause
of action, Bacchus has an adequate remedy at law: a civil action against
Krapacs for money damages. See
Textor, 189 So. 3d at 874; Yacucci,
162
So. 3d at 72;
Vrasic, 106 So. 3d at 486.
Reversed.
GROSS and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2Indeed, Krapacs has already faced some consequences for her actions. She
has been disbarred from the Florida Bar and ordered to pay $4,777.40 in costs.
See Florida Bar v. Krapacs, SC19-277,
2020 WL 3869584 at *1 (Fla. July 8,
2020).
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