Becker & Poliakoff

Freedom of Speech and Disruptive Owners

Freedom of Speech and Disruptive Owners

Social media, blogs, and websites are the new normal of daily living in 2018. People post their thoughts, pictures and videos with the swipe of their phone sometimes without regard to accuracy or repercussions. This is a problem in communities where residents, managers, employees and others living and working in close proximity (no matter how large the community) tend to rub each other the wrong way sometimes. So what happens when an irate Owner starts posting personal information about the other residents, managers, employees and vendors online?

In a recent Florida case, a condominium association filed suit against a disruptive unit owner for his threatening, harassing, and intimidating conduct against the Association, management, and other unit owners, in violation of the condominium documents. The behavior included entering others’ private property; peering into windows; photographing others’ automobile tags and personal property; photographing and videoing other residents and their children; sending thousands of emails containing the private information of management and residents including social security numbers; and engaging in a “relentless barrage of criticism, rhetoric, and threats.”

After a preliminary injunction was entered in favor of the association, a settlement was reached in which the owner agreed to stop some of his actions. Shortly afterward, the Association had to ask the Court for help in enforcing the settlement. The Court ordered the owner to stop posting and publishing pictures or personal information basically about everyone in or involved with the Association (residents, managers, employees, vendors, etc.); and to remove the previously posted/published information from his websites, blogs, and social media, and ordered the owner to shut down (and not start any new) blogs and websites he created regarding the Association. The Court’s order essentially modified the settlement agreement restricting all postings (past, present and future) by the owner as to the Association, its employees and other residents.

The owner appealed arguing the amendments to the settlement agreement violated his right to freedom of speech. The Appellate Court found in favor of the owner holding that “a blanket prohibition of his online speech constitutes an unconstitutional prior restraint on free speech.” Quoting Palm Beach Newspapers, LLC, v. State, 183 So.3d 480, 482-83 (Fla. 4th DCA 2016), the Appellate Court reasoned that “[a] prior restraint on publication, or censorship of information that has already been published, is presumptively unconstitutional under the First Amendment.” The Appellate Court emphasized that privacy interests give way to the First Amendment right to publish lawfully obtained, truthful information where matters of public concern are involved.

Despite how it seems, the Appellate Court did not say the Owner could post any statements he wishes on websites, social media, blogs, etc. without any restraints whatsoever. Rather the Appellate Court required that before such action was prohibited the Trial Court had to conduct a proper constitutional inquiry. The Appellate Court did find that that the original settlement agreement (before the Trial Court expanded the restrictions) was enforceable.

Free speech is not without its limitations. As the Appellate Court mentioned, it does not protect “obscenity, defamation, fraud, incitement, true threats, and speech integral to criminal conduct.” What does this mean to your community? Associations need to make sure they stop existing statements which fall into these categories rather than pursue possible future statements which will be harder to restrict. Enforcing the statements which have been made should serve as a deterrent for future statements.