Injunction Against Online Communication Violates First Amendment

Last week, the Florida Court of Appeal struck down an injunction from the trial court which ordered a billionaire businessman to stop posting online about another billionaire businessman. The Court found that the injunction constituted a prior restraint on free speech, and thus could not stand under the First Amendment.

Alki David and John Textor both own companies which produce holograms used by the music industry. In May 2014, it was announced that Textor’s company would show a Michael Jackson hologram performance at the upcoming Billboard Music Awards show. David’s company then filed a patent infringement lawsuit against Textor’s company. Textor answered by filing a business tort suit against David’s company. The business tort suit has since been dismissed while the patent suit is still ongoing.

In July 2014, Textor filed for injunctive protection under Florida cyberstalking law. Textor alleged that David’s cyberstalking acts included the following: (1) a May 2014 text from David to Textor, demanding that Textor give credit to David’s company at the Billboard Awards show for the hologram, for which David would drop his patent infringement suit; otherwise, he threatened to increase damages in that suit and stated, “You will be ruined I promise you”; (2) an e-mail 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 article from July 2014 on Entrepreneur.com, in which David was quoted as saying that he “would have killed [Textor] if he could”; and (4) articles about Textor that David posted and reposted in various online outlets. Other acts were also included in the complaint.

The trial court granted Textor’s request and ordered David to stop communicating with Textor or posting any information about him online. The court also ordered that he remove any materials he already had posted from the websites.

On appeal, the Court of Appeal first concluded that David’s actions did not amount to cyberstalking under Florida law since a sophisticated businessman like Textor would not have suffered “substantial emotional distress” as a result. Perhaps more importantly, the Court of Appeal also found that the injunction violated the First Amendment. Speaking of the injunction, the Court stated the following:

“[A] temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns.” An injunction may not be directed to prevent defamatory speech. “‘[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.’”

The Court further noted that the injunction prevented not only comments to Textor, but also comments about him. Such speech is not the proper subject of a prior restraint. The Court went on to say that even offensive and vituperative speech is protected by the First Amendment, and if Textor felt he had a case for defamation, he was welcome to sue David for damages.

This case is part of a growing trend of disputes involving online communication. As the freedom to post opinions and information continues to grow, disputes have grown along with it. While relatively basic First Amendment free speech law clearly protects the majority of online communication, it seems that some courts are more willing to restrain speech which is simply offensive, rather than illegal. While the Florida Court of Appeal corrected the trial court’s apparent error in this case, it should serve as yet another warning to attorneys and parties. The First Amendment protects offensive speech, even if that speech is online for all to see. Unwise and ungracious is not always illegal. You can read the entire opinion here.

The attorneys at Dalton & Tomich, PLC have extensive experience with First Amendment issues. We have litigated First Amendment cases around the country in both state and federal courts. If you feel that you have a free speech or other First Amendment issue, please do not hesitate to contact us. We would be happy to speak with you.