Court reverses restriction on man’s blogging about his condo association, management company and neighbors
The Wshington Post
By Eugene Volokh
21 July 2017
From today’s opinion of the Florida Court of Appeal in Fox v. Hamptons at Metrowest Condominium Association Inc., which strikes me as generally quite right:
Howard Adam Fox … resides at the Hamptons at MetroWest …, a condominium
complex managed by the [Metrowest Condominium] Association. The
Association [sued Fox alleging that he had violated the condominium
rules by] a continuous course of conduct designed and carried out for
the purpose of harassing, intimidating, and threatening other
residents, the Association, and its representatives…. [T]he 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 …. 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 all such information currently on any of
his websites or blogs.
[Footnote: Fox utilized the internet to voice his displeasure over the quality of life at the Hamptons.]
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. …
[A] blanket prohibition of [Fox’s] online speech constitutes an
unconstitutional prior restraint on free speech. … Freedom of speech
does not extend to obscenity, defamation, fraud, incitement, true
threats, and speech integral to criminal conduct. [But “s]peech that
does not fall into these exceptions remains protected.”
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.” … “The private litigants’ interest in protecting their
vanity or their commercial self-interest simply does not qualify as
grounds for imposing a prior restraint.” ….
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. [Footnote: On remand, the
trial court should keep in mind that “[a] content-based restriction on
protected speech must survive strict scrutiny.” 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.”
“To survive strict scrutiny, the Government has the burden of showing
that a content-based restriction ‘is necessary to serve a compelling
state interest.’” 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.” 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.” [See] 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) ….]
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.
[Footnote moved: 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.”]
Florida appellate courts have recently been quite firm in striking down
speech-restrictive bans on unwanted speech about people, see, e.g.,
here, here, and here — though unfortunately this reflects some Florida
trial courts’ willingness to issue such bans.
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