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Cyberstalking Injunctions and the First Amendment

Posted on June 18, 2018 at 3:20 PM

      In the age of email, electronic communications, and social media, the Florida Legislature now allows an individual to petition for protection against cyberstalking. Florida Statutes § 784.048(1)(d) defines cyberstalking as “engaging 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.”


      “Whether a communication caused substantial emotional distress should be narrowly construed and is governed by the reasonable person standard.” David v. Textor, 189 So. 3d 871, 875 (Fla. 4th DCA 2016). “In determining whether substantial emotional distress occurred, the courts look to the standard of a reasonable person in the petitioner's shoes.” Florida Statutes § 784.048(1)(b) defines "course of conduct" as “a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose.” The terms do not include constitutionally protected activity such as picketing or other organized protests.  In reviewing the validity of a cyberstalking injunction, the appellate courts have been especially sensitive to two issues: constitutionally protected activity implicating the First Amendment and conduct directed at a particular person.


       As the Third District Court of Appeal noted in Chevaldina v. R.K., 133 So. 3d 1086 (Fla. 3d DCA 2014):


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.


Precluding such conduct could constitute a prior restraint on a person’s First Amendment right to free speech which is impermissible. Id.  “Where comments are made on an electronic medium to be read by others, they cannot be said to be directed to a particular person.” David v. Textor, 189 So. 3d 871 (Fla. 4th DCA 2016).  Similarly, a "report to an arm of government, concerning a matter within the purview of the agency's responsibilities," such as a complaints, serves a legitimate purpose and was a constitutionally protected activity. Curry v. State, 811 So.2d 736, 741 (Fla. 4th DCA 2002)

When reviewing cyberstalking injunctions, courts and attorneys should pay particular attention to whether the conduct in question is protected by the First Amendment and whether such conduct is actually “directed” at a particular person.

Categories: Domestic Violence Injunctions