Fox v. Hamptons at Metrowest Condominium Ass'n , 2017 Fla. App. LEXIS 10492 ( 2017 )


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  •           IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FIFTH DISTRICT
    NOT FINAL UNTIL TIME EXPIRES TO
    FILE MOTION FOR REHEARING AND
    DISPOSITION THEREOF IF FILED
    HOWARD ADAM FOX,
    Appellant,
    v.                                                     Case No. 5D16-1822
    HAMPTONS AT METROWEST
    CONDOMINIUM ASSOCIATION, INC.,
    Appellee.
    ________________________________/
    Opinion filed July 21, 2017
    Appeal from the Circuit Court,
    for Orange County,
    Margaret Schreiber, Judge.
    Howard Adam Fox, Orlando, Pro Se.
    James S. Byrd, Jr., of James S. Byrd, PA,
    Orlando, for Appellee.
    PER CURIAM.
    Howard Adam Fox appeals the trial court’s order finding him guilty of civil contempt
    of court for violating a settlement agreement he entered into with the Hamptons at
    Metrowest Condominium Association, Inc. (Association). Fox argues that portions of the
    contempt order constitute a prior restraint on protected speech under both the Florida
    Constitution and United States Constitution. We agree.
    Fox resides at the Hamptons at MetroWest (Hamptons), a condominium complex
    managed by the Association. The Association filed a verified complaint that was later
    amended, seeking injunctive relief against Fox. The complaint alleged, inter alia, that Fox
    violated section 718.303, Florida Statutes (2015), by failing to comply with the Hamptons'
    Declaration and rules and regulations thereby causing irreparable harm to homeowners,
    renters, and guests of the Hamptons, the Association, and its representatives. The
    complaint further alleged that Fox engaged in a continuous course of conduct designed
    and carried out for the purpose of harassing, intimidating, and threatening other residents,
    the Association, and its representatives. After the trial court granted the preliminary
    injunction ex parte, the parties reached a settlement agreement in which Fox agreed to
    cease certain actions. Consequently, the trial court entered a final judgment enforcing
    the settlement agreement and dismissing with prejudice all claims raised by either party.
    However, it retained jurisdiction to enforce the settlement agreement.
    Soon thereafter, the Association filed a motion for contempt, alleging that Fox had
    willfully and intentionally violated the terms of the settlement agreement and final
    judgment. After a hearing, the trial court found Fox in civil contempt. In addition to
    enforcing the provisions of the settlement agreement, the trial court further ordered Fox
    to stop posting, circulating, and publishing any pictures or personal information about
    current or future residents, board members, management, employees or personnel of the
    management company, vendors of the Hamptons, or any other management company of
    the Hamptons on any website, blog, or social media. He was further ordered to take down
    2
    all such information currently on any of his websites or blogs.1 The trial court also
    prohibited Fox from starting any new blogs, websites or social media websites related to
    the Hamptons or the Association. It informed Fox that, as his punishment, if someone
    asked him on his social media page if he enjoyed living at the Hamptons, he could not
    post a response online.      Instead, he would have to call the person to express his
    concerns.    Notably, these amendments to the settlement agreement appear to be
    permanent. Fox insists that the amendments, imposed as his punishment, violate his
    right to speak freely. We agree that a blanket prohibition of his online speech constitutes
    an unconstitutional prior restraint on free speech.
    Both the United States Constitution and the Florida Constitution prohibit laws that
    curtail the freedom of speech or the freedom of the press.2 Amend. I, U.S. Const.
    ("Congress shall make no law . . . abridging the freedom of speech, or of the press."); Art.
    I, § 4, Fla. Const. ("Every person may speak, write and publish sentiments on all subjects
    but shall be responsible for the abuse of that right."). "A prior restraint on publication, or
    censorship of information that has already been published, is presumptively
    unconstitutional under the First Amendment." Palm Beach Newspapers, LLC v. State,
    
    183 So. 3d 480
    , 482-83 (Fla. 4th DCA 2016) (citing Neb. Press Ass'n v. Stuart, 
    427 U.S. 1
    Fox utilized the internet to voice his displeasure over the quality of life at the
    Hamptons.
    2 Although Fox is not working for a newspaper or magazine, "press includes not
    only newspapers, books, and magazines, but also humble leaflets and circulars. . . . [One
    does] not have to be a card carrying member of the Associated Press or the New York
    Times to be entitled to the protection of the First Amendment." Town of Lantana v.
    Pelczynski, 
    290 So. 2d 566
    , 569 (Fla. 4th DCA 1974), aff'd, 
    303 So. 2d 326
     (Fla. 1974)
    (citing Lovell v. City of Griffin, 
    303 U.S. 444
     (1938)).
    3
    539, 559 (1976)). It has been established that "[p]rior restraints on speech and publication
    are the most serious and the least tolerable infringement on First Amendment rights."
    Vrasic v. Leibel, 
    106 So. 3d 485
    , 486-87 (Fla. 4th DCA 2013) (quoting Stuart, 
    427 U.S. at 559
    ). "Temporary restraining orders and permanent injunctions—i.e., court orders that
    actually forbid speech activities—are classic examples of prior restraints." Alexander v.
    United States, 
    509 U.S. 544
    , 550 (1993); see also Vrasic, 
    106 So. 3d at 486-87
    .
    In fact, "[w]here matters of public concern are involved, privacy interests give way
    to the First Amendment right to publish lawfully obtained, truthful information about such
    matters." Palm Beach Newspapers, 
    183 So. 3d at
    483 (citing Bartnicki v. Vopper, 
    532 U.S. 514
    , 534 (2001) ("[P]rivacy concerns give way when balanced against the interest
    in publishing matters of public importance."); The Fla. Star v. B.J.F., 
    491 U.S. 524
    , 536-
    37 (1989) (stating that a news report about a criminal prosecution is "a matter of public
    significance"); Gawker Media, LLC v. Bollea, 
    129 So. 3d 1196
    , 1200-02 (Fla. 2d DCA
    2014)).   The United States Supreme Court has "consistently classified emotionally
    distressing or outrageous speech as protected, especially where that speech touches on
    matters of political, religious or public concern." United States v. Cassidy, 
    814 F. Supp. 2d 574
    , 582 (D. Md. 2011). "This is because 'in public debate our own citizens must
    tolerate insulting, and even outrageous, speech in order to provide "adequate 'breathing
    space' to the freedoms protected by the First Amendment.'" 
    Id.
     (quoting Boos v. Barry,
    
    485 U.S. 312
    , 322 (1988)).       "[O]nline speech is equally protected under the First
    Amendment as there is ‘no basis for qualifying the level of First Amendment scrutiny that
    should be applied’ to online speech." 
    Id.
     (quoting Reno v. Am. Civil Liberties Union, 
    521 U.S. 844
    , 870 (1997)); see also Obsidian Fin. Grp., LLC v. Cox, 
    812 F. Supp. 2d 1220
    ,
    4
    1222 (D. Or. 2011), aff'd, 
    740 F.3d 1284
     (9th Cir. 2014) (finding statements on blog
    constituted opinion speech protected by First Amendment).
    Yet, the right to free speech and the freedom of the press are not without their
    limits. Indeed, "[t]here is not in existence any right, constitutional or otherwise which does
    not carry with [it] an equal and balancing amount of responsibility." Firstamerica Dev.
    Corp. v. Daytona Beach News-Journal Corp., 
    196 So. 2d 97
    , 101 (Fla. 1966). Freedom
    of speech does not extend to obscenity, defamation, fraud, incitement, true threats, and
    speech integral to criminal conduct. Cassidy, 
    814 F. Supp. 2d at 582-83
    . "Speech that
    does not fall into these exceptions remains protected." 
    Id.
     at 583 (citing United States v.
    Stevens, 
    559 U.S. 460
     (2010)).
    Importantly, "[n]o prior decisions support the claim that the interest of an individual
    in being free from public criticism of his business practices in pamphlets or leaflets
    warrants use of the injunctive power of a court." Org. for a Better Austin v. Keefe, 
    402 U.S. 415
    , 419 (1971); Procter & Gamble Co. v. Bankers Tr. Co., 
    78 F.3d 219
    , 225 (6th
    Cir. 1996) ("The private litigants' interest in protecting their vanity or their commercial self-
    interest simply does not qualify as grounds for imposing a prior restraint."). Instead,
    "[s]ubsequent civil or criminal proceedings, rather than prior restraints, ordinarily are the
    appropriate sanction for calculated defamation or other misdeeds in the First Amendment
    context." CBS, Inc. v. Davis, 
    510 U.S. 1315
    , 1318 (1994). This is because "[a] free
    society prefers to punish the few who abuse rights of speech after they break the law than
    to throttle them and all others beforehand." Vrasic, 
    106 So. 3d at 487
     (quoting Se.
    Promotions, Ltd. v. Conrad, 
    420 U.S. 546
    , 559 (1975)); See also Matter of Providence
    Journal Co., 
    820 F.2d 1342
    , 1345 (1st Cir. 1986) ("If a publisher is to print a libelous,
    5
    defamatory, or injurious story, an appropriate remedy, though not always totally effective,
    lies not in an injunction against that publication but in a damages or criminal action after
    publication.").
    In this case, the trial court erred when it prohibited Fox from making any statements
    whatsoever pertaining to the Hamptons or to the Association on his websites, blogs, and
    social media websites without conducting a proper constitutional inquiry. 3 Accordingly,
    we reverse the portions of the contempt order prohibiting Fox from posting on any
    website, blog, or social media, and remand for further proceedings.          However, we
    conclude that the trial court did not err when it enforced the agreed upon terms of the
    settlement agreement and affirm the contempt order in that respect.
    AFFIRMED in part; REVERSED in part; and REMANDED.
    PALMER, TORPY and BERGER, JJ., concur.
    3 On remand, the trial court should keep in mind that "[a] content-based restriction
    on protected speech must survive strict scrutiny." Cassidy, 
    814 F. Supp. 2d at
    583 (citing
    United States v. Playboy Entm't Grp., Inc., 
    529 U.S. 803
    , 813 (2000)). In most cases,
    where "the provision focuse[s] only on the content of the speech and the direct impact
    that speech ha[s] on viewers, the provision [is] a content-based restriction." Id. at 584.
    "To survive strict scrutiny, the Government has the burden of showing that a content-
    based restriction 'is necessary to serve a compelling state interest.'" Id. (citing PSINet
    Inc. v. Chapman, 
    362 F.3d 227
    , 234 (4th Cir. 2004)). Notably, it has been held that
    "preventing the use of the Internet and other interactive computer services to inflict
    emotional distress on others serves an important governmental interest." Id. at 585.
    However, "Twitter and Blogs are today’s equivalent of a bulletin board that one is free to
    disregard, in contrast, for example to e-mails or phone calls directed to a victim." Id.
    (citing United States v. Bowker, 
    372 F.3d 365
    , 378 (6th Cir. 2004) (contrasting why a
    federal telephone harassment statute serves a compelling governmental interest and a
    statute that made it a criminal offense for three or more persons to assemble on a
    sidewalk and to be "annoying" to a passerby did not serve a compelling governmental
    interest)).
    6
    

Document Info

Docket Number: Case 5D16-1822

Citation Numbers: 223 So. 3d 453, 2017 WL 3091217, 2017 Fla. App. LEXIS 10492

Judges: Palmer, Torpy, Berger

Filed Date: 7/21/2017

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (20)

United States v. Cassidy , 814 F. Supp. 2d 574 ( 2011 )

Lovell v. City of Griffin , 58 S. Ct. 666 ( 1938 )

Cbs Inc. v. Davis, Circuit Judge, Seventh Judicial Circuit, ... , 510 U.S. 1315 ( 1994 )

Organization for a Better Austin v. Keefe , 91 S. Ct. 1575 ( 1971 )

Reno v. American Civil Liberties Union , 117 S. Ct. 2329 ( 1997 )

Vrasic v. Leibel , 106 So. 3d 485 ( 2013 )

Gawker Media, LLC v. Bollea , 2014 Fla. App. LEXIS 452 ( 2014 )

Palm Beach Newspapers, LLC v. State , 2016 Fla. App. LEXIS 803 ( 2016 )

Firstamerica Dev. Corp. v. Daytona Beach N.-J. Corp. , 196 So. 2d 97 ( 1966 )

Town of Lantana v. Pelczynski , 1974 Fla. LEXIS 4566 ( 1974 )

psinet-incorporated-charlottesville-sexual-health-wellness-clinic , 362 F.3d 227 ( 2004 )

Southeastern Promotions, Ltd. v. Conrad , 95 S. Ct. 1239 ( 1975 )

Boos v. Barry , 108 S. Ct. 1157 ( 1988 )

Alexander v. United States , 113 S. Ct. 2766 ( 1993 )

United States v. Erik Bowker , 372 F.3d 365 ( 2004 )

The Procter & Gamble Company v. Bankers Trust Company, Bt ... , 78 F.3d 219 ( 1996 )

Town of Lantana v. Pelczynski , 1974 Fla. App. LEXIS 8044 ( 1974 )

Aldinger v. Howard , 96 S. Ct. 2413 ( 1976 )

United States v. Playboy Entertainment Group, Inc. , 120 S. Ct. 1878 ( 2000 )

United States v. Stevens , 130 S. Ct. 1577 ( 2010 )

View All Authorities »