Posted by Nydia Streets of Streets Law in Florida Domestic Violence
While a stalking injunction in Florida can prohibit a person from contacting or going near another person. it has its limits as far as the First Amendment is concerned. When a stalking injunction limits what a person can post about another person, this may infringe on the poster’s right to free speech. This was an issue in the case Budlove v. Johnson, et. al., 2D22-1549 (Fla, 2d DCA December 29, 2023).
This case stems from an underlying dependency case in which the mother’s parental rights were terminated. The mother began posting information about the case and case participants online leading to five of the case participants filing a stalking injunction against the mother. The injunctions were granted, and in its order, the court ordered the mother "not post online anything relating to [the child’s] dependency case, [including], 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 order also stated: "[The mother] 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." The mother appealed and argued this was an unlawful prior restraint on her speech.
The appellate court cited the standard for restraining speech: “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).”
The appellate opinion further cites “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).” The opinion concludes “In this case, the injunctions granted against [the mother] do not merely prohibit [the mother] 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 [the mother] cease communicating publicly about the appellees, ordering that she refrain from ‘post[ing] online anything relating to [the minor child]'s dependency case.’ In other words, the injunctions prevent [the mother] from engaging in public 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. [. . .] To the extent that the injunctions broadly prohibit [the mother] from merely making public statements about the appellees, [the minor child], or her dependency case, the injunctions are overbroad and impermissibly enjoin a constitutionally protected course of conduct.”
Schedule your meeting with a Miami family law attorney to understand how the law may apply to the facts of your case.