BRITTANY BUDLOVE v. RAFAELA MCCOY ( 2023 )

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
BRITTANY BUDLOVE,
Appellant,
v.
WILLIAM JOHNSON,
Appellee.
BRITTANY BUDLOVE,
Appellant,
v.
JOENETTA JOHNSON,
Appellee.
BRITTANY BUDLOVE,
Appellant,
v.
SUSANNE CAMPBELL,
Appellee.
BRITTANY BUDLOVE,
Appellant,
v.
TANYA LEWIS,
Appellee.
BRITTANY BUDLOVE,
Appellant,
v.
RAFAELA McCOY,
Appellee.
Nos. 2D22-1549, 2D22-1550, 2D22-1551, 2D22-1552, 2D22-1553
CONSOLIDATED
December 29, 2023
Appeal from the Circuit Court for Pasco County; Lauralee Ganson
Westine, Judge.
Dayna Maeder of Maeder Infantolino, LLC, Jupiter, for Appellant.
N. Rivver Cox and Anthony M. Innacio of Bush Graziano Rice & Platter,
P.A., Tampa, for Appellee, Tanya Lewis.
No appearance for remaining Appellees.
ATKINSON, Judge.
Brittany Budlove appeals an April 8, 2022, order granting the
petitions of the five appellees—William Johnson, Joenetta Johnson,
Susanne Campbell, Tanya Lewis, and Rafaela McCoy—for protection
against stalking pursuant to sections 784.0485 and 784.048, Florida
Statutes (2021).1 We affirm the entry of all five injunctions for stalking
and reject without discussion Budlove's argument that there was
1 The five cases are consolidated for the purposes of the opinion.
2
insufficient evidence for the trial court to impose the injunctions against
her pursuant to sections 784.0485 and 784.048. However, the scope of
all five injunctions exceeds that which is allowed by the First Amendment
to the United States Constitution by imposing a prior restraint on
protected speech. To the extent that they do so, the injunctions must be
reversed in part.
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.
During the period between the filing of the petition for termination
of parental rights and the order terminating Budlove's parental rights,
Budlove was twice ordered to refrain from either contacting some of the
appellees or posting certain information on online platforms. On
December 21, 2020, Ms. Johnson requested, and the trial court issued, a
"no contact order" against Budlove and her now ex-husband, John
Budlove. The order stated that Brittany and John Budlove were not to
have any "direct, indirect, or third person contact with the caregiver,
Joenetta Johnson," were to "remain at least 500 feet from Joenetta
Johnson's residence, place of employment, and/or any other place Ms.
Johnson is," and were not "permitted to have any written, telephonic,
electronic, or social media contact with Ms. Johnson."
Then, on 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
3
judges, attorneys, CPIs, detectives, and the caregiver.2
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." While
Budlove does not argue on appeal that the entry of the injunctions
violated the First Amendment, Budlove argues that the prohibitions of
the injunctions against her are unconstitutional prior restraints on
2 M.B. is Budlove's ex-husband's niece and was previously in the
care of Budlove and her ex-husband.
4
speech. See Alexander v. United States, 509 U.S. 544, 550 (1993) (noting
the "distinction, solidly grounded in our cases, between prior restraints
and subsequent punishments").
Constitutional issues are "question[s] of law subject to de novo
review." See State v. Adkins, 96 So. 3d 412, 416 (Fla. 2012) (quoting
Crist v. Ervin, 56 So. 3d 745, 747 (Fla. 2011)). States are prohibited from
"abridging the freedom of speech." See amend. I, U.S. Const.; see also
Virginia v. Black, 538 U.S. 343, 358 (2003) (noting that the First
Amendment is applicable to the states). The First Amendment requires
courts to scrutinize restrictions on "expression because of its message,
its ideas, its subject matter, or its content." Ashcroft v. ACLU, 535 U.S.
564, 573 (2002) (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60,
65 (1983)). Content-based "[p]rior restraints on speech and publication
are the most serious and the least tolerable infringement on First
Amendment rights." Concerned Citizens for Jud. Fairness, Inc. v. Yacucci,
162 So. 3d 68, 73 (Fla. 4th DCA 2014) (quoting Neb. Press Ass'n v.
Stuart, 427 U.S. 539, 559 (1976)). "Temporary restraining orders and
permanent injunctions—i.e., court orders that actually forbid speech
activities—are classic examples of prior restraints." Alexander, 509 U.S.
at 550. And "[a]ny form of prior restraint of expression comes to a
reviewing court bearing a heavy presumption against its constitutional
validity; therefore, the party who seeks to have such a restraint upheld
carries a heavy burden of showing justification for the imposition of such
a restraint." State ex rel. Miami Herald Publ'g Co. v. McIntosh, 340 So. 2d
904, 908 (Fla. 1976) (first citing N.Y. Times Co. v. United States, 403 U.S.
713 (1971); and then citing Bantam Books v. Sullivan, 372 U.S. 58(1963)).
5
Neither the government nor courts may restrain speech "based on
hostility—or favoritism—towards the underlying message expressed."
R.A.V. v. City of Saint Paul, 505 U.S. 377, 386 (1992). "[C]ontent-based
restrictions on speech have been permitted, as a general matter, only
when confined to the few 'historic and traditional categories [of
expression] long familiar to the bar.' " United States v. Alvarez, 567 U.S.
709, 717 (2012) (alteration in original) (quoting United States v. Stevens,
559 U.S. 460, 470 (2010)). Otherwise, content-based speech restrictions
"may be justified only if . . . they are narrowly tailored to serve compelling
state interests." Nat'l Inst. of Fam. & Life Advocs. v. Becerra, 138 S. Ct.
2361, 2371 (2018) (quoting Reed v. Town of Gilbert, 576 U.S. 155, 163
(2015)). A speech restriction is not narrowly tailored when the restriction
regulates "in such a manner that a substantial portion of the burden on
speech does not serve to advance its goals." See Ward v. Rock Against
Racism, 491 U.S. 781, 799 (1989).
"There is no categorical 'harassment exception' to the First
Amendment’s free speech clause." Saxe v. State Coll. Area Sch. Dist., 240
F.3d 200, 204 (3d Cir. 2001); see also NAACP v. Claiborne Hardware Co.,
458 U.S. 886, 909–10 (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, 402 U.S. 415, 420 (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, see, e.g.,
6
§§ 784.0485(1) ("For the purposes of injunctions for protection against
stalking under this section, the offense of stalking shall include the
offense of cyberstalking."); 784.048(1)(d)1 (" 'Cyberstalk' means . . . [t]o
engage in a course of conduct to communicate, or to cause to be
communicated, directly or indirectly, words, images, or language by or
through the use of electronic mail or electronic communication, directed
at or pertaining to a specific person . . . ."), courts are not permitted to
enjoin a course of conduct to the extent that it encompasses
constitutionally protected activity, see § 784.048(1)(b) (specifying that the
"[c]ourse of conduct" constituting cyberstalking "does not include
constitutionally protected activity such as picketing or other organized
protests"). Here, the scope of the injunction exceeds that which is
permitted under the First Amendment by enjoining a course of conduct
that includes activity that is constitutionally protected. See Neptune v.
Lanoue, 178 So. 3d 520, 522 (Fla. 4th DCA 2015) ("The injunction issued
by the trial court [against cyberstalking] is impermissibly broad and,
insofar as it states 'the Respondent shall not "post" on the Internet
regarding the Petitioner,' in violation of Appellant's First Amendment
right to free speech.").
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, 189 So. 3d 871, 876 (Fla. 4th DCA 2016)
(emphasis in original); accord DiTanna v. Edwards, 323 So. 3d 194, 203–
04 (Fla. 4th DCA 2021); Krapacs v. Bacchus, 301 So. 3d 976, 980 (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' "
7
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, 402 U.S. at 420 (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, 397 U.S. 728, 738 (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"); see also Reed v. Town of Gilbert, 576 U.S. 155, 163
(2015) ("Government regulation of speech is content based if a law
applies to particular speech because of the topic discussed or the idea or
message expressed.").
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.
8
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.
Our concurring colleague also points out that some case law relied
upon in the majority opinion predates the most recent amendment to
section 784.048, which added the phrases "directly or indirectly" and
"pertaining to" to the definition of cyberstalking. In those cases decided
before the statute was amended, the relevant analysis is that of the
provisions of the injunction or restraint under review and whether those
proscriptions pass muster under the Constitution, not whether they
satisfy the criteria of the applicable injunction statute. Without
conceding that the only way to read those opinions is to infer a holding
that enjoining communications about an individual constitutes a per se
unconstitutional restraint on speech, we do 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.
In this case, the 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." (Emphasis added.).
In other words, the injunctions prevent Budlove from engaging in public
9
speech about a court proceeding and the individuals involved. 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," see
Cohen v. California, 403 U.S. 15, 20 (1971) (citing Chaplinsky v. New
Hampshire, 315 U.S. 568 (1942)); "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," see Black, 538 U.S. at 359; or "incitement,"
communications " 'directed [at] producing imminent lawless action,' and
likely to do so," see Counterman v. Colorado, 600 U.S. 66, 73 (2023)
(alteration in original) (quoting Brandenburg v. Ohio, 395 U.S. 444, 447
(1969)).
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. See §
784.084(1)(b); Krapacs, 301 So. 3d at 980 ("A regulation of speech that
'references' Bacchus is necessarily a regulation of the subject matter of
that speech."). The entry of the injunctions granted to William Johnson,
Joenetta Johnson, Susanne Campbell, Tanya Lewis, and Rafaela McCoy
are affirmed in part, but the injunctions are reversed to extent that they
enjoin Budlove from engaging in constitutionally protected speech by
making public statements not sent directly to the appellees.
Affirmed in part, reversed in part, and remanded.
10
VILLANTI, J., Concurs.
SLEET, C.J., Concurs in result with opinion.
SLEET, C.J., Concurring.
I concur with the result reached by the majority in that I agree that
the trial court did not err in finding the existence of prior stalking
warranting entry of the injunctions at issue in this case. I also agree
with the majority that, as written, the injunctions restrain Budlove from
future conduct that is constitutionally protected activity. However, I
disagree with the majority's conclusion as to what communications the
trial court's injunctions can and cannot enjoin Budlove from making.
Section 784.085(1), Florida Statutes (2021), "create[s] a cause of
action for an injunction for protection against stalking" and states that
"[f]or the purposes of injunctions for protection against stalking under
this section, the offense of stalking shall include the offense of
cyberstalking." To be entitled to the issuance of such an injunction,
"[t]he sworn petition shall allege the existence of such stalking and shall
include the specific facts and circumstances for which relief is sought." §
784.085(3)(a). "Upon notice and hearing, when it appears to the court
that the petitioner is the victim of stalking, the court may grant such
relief as the court deems proper, including an injunction . . . [r]estraining
the respondent from committing any act of stalking." § 784.0485(6)(a)1.3
However, in fashioning such a remedy, the court is necessarily restrained
by the statutory definition of stalking, and because the statute
3 The statute also allows for injunctions "[o]rdering the respondent
to participate in treatment, intervention, or counseling services,"
"[r]eferring a petitioner to appropriate services," and "[o]rdering such
other relief as the court deems necessary for the protection of a victim of
stalking, including . . . directives to law enforcement agencies."
§ 784.0485(6)(a)2-4.
11
specifically states that stalking includes cyberstalking, the court also
must fashion a remedy within the statutory definition of cyberstalking.
Section 784.048(1)(d)1 defines cyberstalking as
[t]o engage in a course of conduct to communicate, or to cause
to be communicated, directly or indirectly, words, images, or
language by or through the use of electronic mail or electronic
communication, directed at or pertaining to a specific person
. . . causing substantial emotional distress to that person and
serving no legitimate purpose.[4]
(Emphasis added.)
A course of conduct is defined in the statute as "a pattern of
conduct composed of a series of acts over a period of time, however
short, which evidences a continuity of purpose." § 784.048(1)(b).
Importantly, the statute specifically states that "[t]he term does not
include constitutionally protected activity." Id.
Accordingly, in order to be entitled to entry of an injunction based
on an allegation of cyberstalking, a petitioner needs to allege and prove
that the respondent has already electronically communicated to the
respondent words, images, or language that are directed at the
respondent or that pertain to the respondent OR that the respondent has
directly or indirectly caused such words, images, or language to have
been communicated to the respondent AND that the communication of
the particular words, images, or language caused the respondent
substantial emotion distress AND that there was no legitimate purpose
behind the communication of the particular words, images, or language.
See § 784.048(1)(b), (d)1. Furthermore, once a petitioner has met this
burden, the remedy fashioned by the trial court may include enjoining
the respondent from further acts of stalking (including cyberstalking) but
4 Section 784.048(1)(d)2 provides an alternate definition of
cyberstalking that is not applicable to the instant case.
12
may not include enjoining the respondent from engaging in
"constitutionally protected activity." See id.
Here, the allegations of the petitioners all stem from a dependency
case in which Budlove's parental rights were terminated. The final order
of injunction includes the following language: "Respondent shall not post
on social media about [the dependency case] includ[ing] but not limited
to case managers, parties, and other minor children to case. Anything
already posted on social media about [the dependency case] shall be
removed."
On appeal, Budlove first argues that the trial court erred in
entering the injunction because petitioners failed to establish the
previous existence of cyberstalking as defined in the statute.5 She
maintains that petitioners failed to show that her communications served
no legitimate purpose, that they resulted in substantial emotional
5 In the summary of the argument section of her initial brief before
this court, Budlove argues: "The order granting the cyberstalking
injunction must be reversed because the necessary legal elements were
not proven. In order for an injunction to be entered, Appellee[s were]
required to prove the posts had no legitimate purpose, that they were
directed to Appellee, and that Appellee experienced substantial emotional
distress." (Emphasis added.) She further argues that "[b]ecause
Appellee[s] failed to prove even one of these elements by competent,
substantial evidence, let alone all three required elements, this court
should reverse and remand with instructions to dissolve the injunction."
(Emphasis added.) In the argument section of her brief, she challenges
the basis upon which the injunction was entered by making specific
arguments as to how her previous posts did not amount to cyberstalking.
Finally, in her conclusion section, Budlove states, "The lower court erred
in its legal analysis of the statutory requirements for entering an
injunction, and the evidence does not support its findings." (Emphasis
added.)
13
distress suffered by petitioners, or that they were directed at petitioners.6
I find no merit to these arguments.
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,"7 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. These
communications served no legitimate purpose and certainly do not
qualify as fundraising, protest, or activism as Budlove argues on appeal.
6 I also note that much of Budlove's argument on appeal is
boilerplate argument that cites case law but then only makes bold
conclusory statements without pointing to support in the instant
records. She argues that her social media postings were made for
"fundraising," "protest," or "activism" but fails to discuss any specific
statements or explain how they fall into one of these categories. When
arguing that petitioners had failed to establish substantial emotional
distress, she does not make any arguments regarding any specific
petitioner or their testimony regarding their emotional distress. Nor does
she explain how her specific statements would not cause substantial
emotional distress in a reasonable person. Based on these deficiencies
alone, this court could conclude that Budlove has failed to meet her
burden of establishing trial court error with regard to entry of the
injunction. See generally Coolen v. State, 696 So. 2d 738, 742 n.2 (Fla.
1997) ("[F]ailure to fully brief and argue [points on appeal] constitutes a
waiver. . . ." (emphasis added)); Thurman v. Davis, 321 So. 3d 341, 344
(Fla. 1st DCA 2021) ("The burden is on the appellant to demonstrate
reversible error . . . ." (quoting JP Morgan Chase Bank v. Combee, 883 So.
2d 330, 331 (Fla. 1st DCA 2004))).
7 It is unclear in context who the "her" is to whom Budlove was
referring, but as the trial court pointed out, it was said in a video post
about this case, wherein four of the five petitioners are women.
14
See Craft v. Fuller, 298 So. 3d 99, 104-05 (Fla. 2d DCA 2020) ("Whether
the purpose for [a particular] [communication] is 'legitimate' is evaluated
on a case-by-case basis. . . . However, courts have generally held that
[communication] is legitimate when there is a reason for the
[communication] other than to harass the victim.' " (first alteration in
original) (quoting Venn v. Fowlkes, 257 So. 3d 622, 624 (Fla. 1st DCA
2018))). And I find no error in the trial court's conclusion that a
reasonable person would be caused substantial emotional distress by
Budlove's posts. See generally id. at 104 ("In the context of a petition for
protection against cyberstalking, the question of '[w]hether a
communication causes substantial emotional distress should be
narrowly drawn and is governed by the reasonable person standard.' "
(alteration in original) (quoting Scott v. Blum, 191 So. 3d 502, 504 (Fla.
2d DCA 2016))).
With regard to Budlove's argument that her posts do not amount to
cyberstalking because they were not directed at petitioners, section
784.048 was amended in 2021 to add the bolded words in the following
definition of "cyberstalking": " 'Cyberstalk' means . . . [t]o engage in a
course of conduct to communicate, or to cause to be communicated,
directly or indirectly, words, images, or language by or through the use
of electronic mail or electronic communication, directed at or pertaining
to a specific person . . . ." See ch. 2021-220, § 1, Laws of Fla.; see also §
784.048(1)(d)1.
Although Budlove cites and quotes the 2021 version of the statute
in her briefs before this court, she ignores the language added by the
2021 amendment and cites only preamendment case law for the
proposition that because she did not direct her social media posts at
petitioners, her posts do not meet the statutory definition of
15
cyberstalking. But this court does not have the luxury of ignoring words
and phrases contained in a statute; "[i]n interpreting the statute, we
follow the 'supremacy-of-text principle—namely, the principle that '[t]he
words of a governing text are of paramount concern, and what they
convey in their context, is what the text means.' " Ham v. Portfolio
Recovery Assocs., 308 So. 3d 942, 946 (Fla. 2020) (second alteration in
original) (quoting Antonin Scalia & Bryan Garner, Reading Law: The
Interpretation of Legal Texts 56 (2012)). Furthermore, the cases that
Budlove cites to support her contention all involve preamendment
versions of section 784.048, none of which included communications
pertaining to an individual in the definition of "cyberstalking."
But Budlove also argues that she had a First Amendment right to
publish the posts that she previously made on her social media outlets
and that the injunction is a continuing infringement on her right to
freedom of speech.8 Because Budlove is incorrect in her assertion that
all of her prior postings were constitutionally protected, see, e.g.,
Counterman, 600 U.S. at 76 (recognizing that the First Amendment
allows for "punishment [for incitement], whether civil or criminal [where]
the speaker's words were 'intended' (not just likely) to produce imminent
8 In her initial brief, Budlove designated her First Amendment
argument as point d under heading 1, which is titled,''There was no
evidence provided, and no findings made, that made the three-prong test
to prove cyberstalking.'' That heading has five points lettered a through
e: (a) Substantial emotional distress, (b) Directed at Appellee, (c) No
legitimate purpose, (d) First Amendment rights, and (e) Cyberstalking
overall. Under point d, Budlove quotes David, 189 So. 3d at 875, for the
proposition that ''[s]ection 784.048 itself recognizes the First Amendment
rights of individuals by concluding that a 'course of conduct' for
purposes of the statute does not include protected speech.'' I interpret
this as clearly arguing that the entry of the injunction violated her First
Amendment rights.
16
disorder"), this argument does not establish error with regard to the
granting of the injunctions. I therefore conclude that the trial court did
not abuse its discretion in imposing the injunctions. See Washington v.
Brown, 300 So. 3d 338, 340 (Fla. 2d DCA 2020).
However, as to the remedy fashioned by the trial court in crafting
the language of these injunctions, I agree with Budlove—and with the
majority opinion—that the plain language of the injunctions improperly
encompasses some "constitutionally protected activity." See §
784.048(1)(b) ("The term [course of conduct used in the definition of
cyberstalking] does not include constitutionally protected activity."); see
also Smith v. Short, 332 So. 3d 1064, 1067 (Fla. 2d DCA 2021) (stating
that an injunction should not be "broader than necessary to protect the
injured party under the particular circumstances" and "should be
adequately particularized, especially where some activities may be
permissible and proper" (quoting Smith v. Wiker, 192 So. 3d 603, 604
(Fla. 2d DCA 2016))).
However, I disagree with the majority's assertion that in
determining what is or is not "constitutionally protected activity" the
court should focus on whether the communication is directed at the
individual seeking the injunction or whether it merely pertains to the
individual. Although the majority attempts to assert that what it really is
saying is that this distinction is only but one factor that should be
considered in determining constitutional protections, its final conclusion
betrays that assertion by stating that the injunctions "enjoin Budlove
from engaging in constitutionally protected speech by making public
statements not sent directly to appellees." Thus, whether it intends to or
not, the majority is saying that making public statements not sent
17
directly to the individual who is the subject of the statements is
necessarily constitutionally protected speech. I cannot agree with that.
The majority relies on three cases out of the Fourth District in
reaching this conclusion: David, 189 So. 3d 871; DiTanna, 323 So. 3d
194; Krapacs, 301 So. 3d 976.
David involved a business dispute between David and Textor,
owners of competing video production companies that had filed lawsuits
against each other. Textor sought an ex parte injunction for protection
against stalking against David, alleging cyberstalking. The alleged acts
of cyberstalking consisted of (1) a text from David to Textor stating that
David would drop his lawsuit against Textor if Textor would give David
credit for previous work; (2) "an email from David to business associates
(other than Textor) that he had more information about Textor that
would be released soon, but not specifying what that information was";
(3) an online magazine article in which David was quoted saying that he
"would have killed Textor if he could"; (4) "articles about Textor that
David posted and reposted in various online outlets"; and (5) an email
sent from David to Textor threatening to release embarrassing
information about Textor if Textor did not settle their pending lawsuits.
189 So. 3d at 873-74.
The trial court in David entered an injunction "prohibiting David
from communicating with Textor or posting any information about him
online, and ordering that he remove any materials he already had posted
from the websites." Id. at 874. On appeal, David argued that "the
conduct alleged in Textor's ex parte petition for the injunction does not
constitute cyberstalking, and the injunction violates the First
Amendment." 189 So. 3d at 873.
18
The Fourth District, analyzing the 2014 preamendment version of
section 784.048, concluded that the trial court erred in finding the
existence of cyberstalking. The court concluded that "none of the
allegations in Textor's petition show acts constituting cyberstalking, in
that a reasonable person would not suffer substantial emotional distress
over them" and that "[t]hose communications made directly to Textor
served a legitimate purpose." Id. at 876.
But instead of stopping at reversal based on this sound reasoning,
as it should have, see Liner v. Workers Temporary Staffing, Inc., 990 So.
2d 473, 482 (Fla. 2008) ("In Florida, it is well established that this Court
should refrain from deciding the constitutional questions when the case
may be resolved on other grounds."), the Fourth District proceeded to the
First Amendment issue and tied the statutory phrase "words, images, or
language . . . directed at a specific person" in the definition of
cyberstalking found in the 2014 version of section 784.048(1)(d)1 to its
constitutional analysis. The David opinion continued:
An injunction in this case would also violate First
Amendment principles. "[A] temporary injunction directed to
speech is a classic example of prior restraint on speech
triggering First Amendment concerns." Vrasic v. Leibel, 106
So. 3d 485, 486 (Fla. 4th DCA 2013). An injunction may not
be directed to prevent defamatory speech. Id. at
487; Chevaldina, 133 So. 3d at 1090. " '[P]rior restraints on
speech and publication are the most serious and the least
tolerable infringement on First Amendment
rights.' " Concerned Citizens for Judicial Fairness, Inc. v.
Yacucci, 162 So. 3d 68, 73 (Fla. 4th DCA 2014) (quoting Neb.
Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976)). Section
784.048 itself recognizes the First Amendment rights of
individuals by concluding that a "course of conduct" for
purposes of the statute does not include protected speech. §
784.048(1)(b), Fla. Stat. (2014). This includes speech that
may be offensive or vituperative. See Watts v. U.S., 394 U.S.
705, 708 (1969).
19
Here, the online postings simply provide information,
gleaned from other sources, regarding Textor and the many
lawsuits against him. The injunction prevents not only
communications to Textor, but also communications about
Textor. Such prohibition by prior restraint violates the
Constitution. If David's communications about Textor are
defamatory, then Textor can sue David for damages.
David, 189 So. 3d at 876 (underlined emphasis added).
Nothing in the first paragraph of this quotation states that
communications that are about a person but not directed to that person
are constitutionally protected based on that specific classification alone.
Nevertheless, the Fourth District went on to conclude in the second
paragraph, without any further citation to authority, that "[t]he
injunction prevents not only communications to Textor, but also
communications about Textor. Such prohibition by prior restraint
violates the Constitution." Id. By doing so, the Fourth District created a
bright-line rule where none had previously existed.
In three subsequent cases, the Fourth District quoted David for the
unsupported proposition that where an "injunction prevents not only
communication to [petitioner], but also communications about
[petitioner,] [s]uch prohibition by prior restraint violates the
Constitution." DiTanna, 323 So. 3d at 203 (quoting David, 189 So. 3d at
876); see also Krapacs, 301 So. 3d at 980-81; O'Neill v. Goodwin, 195 So.
3d 411 (Fla. 4th DCA 2016). I can find no other district court opinion in
Florida that has adopted a bright-line rule that enjoining
communications about an individual is per se a constitutional violation
and not simply a violation of the plain language of the preamendment
20
statute.9 I believe that David and the three Fourth District cases that
quote it amount to an outlier in this regard.
Furthermore, the United States Supreme Court cases that the
majority cites do not turn on a "communications directed at" versus
"communications pertaining to" analysis. See Org. for a Better Austin v.
Keefe, 402 U.S. 415, 419-20 (1971) (reversing an injunction that
prevented the distribution of pamphlets containing statements about an
individual and his business practices on the basis that "the interest of an
individual in being free from public criticism of his business practices in
pamphlets or leaflets [did not] warrant[] use of the injunctive power of a
court" and concluding that Rowan v. U.S. Post Office Dep't, 397 U.S. 728(1970), relied on by respondent, was factually distinguishable as it
involved homeowners who sought to prevent junk mail from being
delivered to their homes under a federal statute); Rowan, 397 U.S. at
729, 738 (affirming district court ruling that Title III of the Postal
Revenue and Federal Salary Act of 1967, "under which a person may
require that a mailer remove his name from its mailing lists and stop all
future mailings to the householder," was constitutional and "reject[ing]
the argument that a vendor has a right under the Constitution or
otherwise to send unwanted material into the home of another" and that
"[t]he asserted right of a mailer . . . stops at the outer boundary of every
person's domain"); Reed, 576 U.S. at 163 (addressing whether a town
ordinance was a content-based restriction on free-speech and concluding
9 In fact, in Scott v. Blum, 191 So. 2d 502, 503-04 (Fla. 2d DCA
2016), this court cited David as support for its conclusion that the
injunction entered in that case did not meet the preamendment statutory
requirements because the communication was not directed at the
petitioner, but this court stopped short of the constitutional questions,
stating, "We agree that Mr. Blum failed to meet his evidentiary burden
and reverse. As a result, we do not reach the First Amendment issue."
21
that the town had failed to meet its "burden to demonstrate that the
Code's differentiation between temporary directional signs and other
types of signs, such as political signs and ideological signs, furthers a
compelling governmental interest and is narrowly tailored to that end").
Surely, communications about an individual but not directed to
that individual that incite others to violence are not constitutionally
protected activity. See Counterman, 600 U.S. at 73 (recognizing that
First Amendment recognizes communications "directed [at] producing
imminent lawless action" (alteration in original) (quoting Brandenburg v.
Ohio, 395 U.S. 444, 447 (1969))). 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." See Smith, 332 So. 3d at 1067. Accordingly, I
agree that portion of the final order must be reversed.
Finally, I would point out that the majority's reasoning creates a
conflict between its conclusion that the entry of the injunctions should
be affirmed and its conclusion that the scope of the injunctions should
be reversed because they "enjoin Budlove from engaging in
constitutionally protected speech by making public statements not sent
directly to appellees." (Emphasis added.) In order to be entitled to entry
of an injunction under section 784.085(3)(a), the sworn petition must
allege the prior existence of stalking, and in order for the court to grant
injunctive relief under section 784.085(6)(a), it must find "that the
petitioner is the victim of stalking." In the instant case, all of the
22
allegations of cyberstalking alleged in the petitions seeking these
injunctions describe solely communications pertaining to the petitioners,
and the trial court's oral findings indicate that the communications it
found to be prior instances of stalking consist solely of communications
pertaining to the petitioners that were not sent directly to them. If the
majority is convinced that communications pertaining to but not directed
at the petitioner are excluded from the definition of "course of conduct"
in section 784.048(1)(b) because they are "constitutionally protected
activity"—and then necessarily excluded from the definitions of
cyberstalking in section 784.048(1)(d) and stalking in section
784.085(1)—then how can the majority find no error in the trial court's
determination that petitioners were the victims of previous acts of
stalking based on communications that only pertained to petitioners? I
do not think the majority can logically have it both ways.
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.
However, 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.
23
Opinion subject to revision prior to official publication.
24