Tag Archives: injunction

A small victory for freedom of speech

Imagine speaking out against a candidate or other public figure, and getting an injunction slapped on you! Not only do you no longer get to express your political views, but the injunctions also states you also must surrender your firearms, and appear at court to determine if the injunction should be permanent.  That scenario played itself out for Cape Coral resident, and outspoken political commentator, Paul Barnes yesterday. 

Mr. Barnes had been an outspoken critic on blogs and on the radio about Greg Eagle, and his son Dane Eagle, who was just elected to the Florida legislature.  Barnes supported the younger Eagle’s primary opponent, and has been critical of him since he supported Charlie Crist when Crist left the Republican ticket to run as an independent.  Greg Eagle has recently been front page news on his own, for allegations of mishandling and/or fraudulently handling a land trust, costing dozens of people their life savings.   Mr. Barnes was a frequent commenter on the related stories online, in addition to posts on Facebook and in other media. 

The issue came to a head a couple of weeks ago, as both Mr. Barnes and Greg Eagle were attending Octoberfest in Cape Coral, when they ran into each other.  Mr. Barnes approached Mr. Eagle, criticized him for his alleged wrongdoings in the real estate issue, and called him an expletive.  He followed up the next day with a similar email.  Mr. Eagle then filed for a stalking injunction under the Florida’s new stalking statute, and was granted a temporary injunction, pending hearing.

This stuck me as an improper attempt to chill politically motivated speech.  There are very few instances where speech can be restricted due to the protections of the First Amendment.  The most famous examples are “fighting words” or shouting “fire” in a crowded theater.  Conversely, criticism of a public figure or similarly politically motivated speech is exactly the sort of expression the First Amendment is designed to protect.  Consider my hypothetical at the beginning of this article: it’s offensive to our system of discourse and harmful to the democratic process.  Fortunately, Mr. Barnes had a right to have a hearing on the matter before the injunction was finalized.

Mr. Barnes was represented at the hearing by an excellent Fort Myers defense attorney, and friend of my firm, Aaron O’Brien.  Mr. O’Brien was able to convey the politically motivated background to the story that made it clear that an injunction was not appropriate.  Judge Carlin astutely recognized that this situation did not present a course of conduct that constituted illegal harassment so as to qualify as stalking, or to warrant an injunction, and the injunction was dismissed

I have previously criticized the stalking injunction statute for vagueness, and fortunately the judge did not allow the petitioner to use the statute for such a broad scope.  The provisions for injunction serve an important purpose for people who are being legitimately wronged by real harassment, but there is a risk that such a broadly worded law could potentially encompass lawful behavior, and especially politically motivated expression.  I may not agree with the way Mr. Barnes expressed his message, but it is paramount under our Constitution to protect his right to free speech.

Changes to Florida’s Stalking laws / statutes

Florida recently made some changes to its law regarding stalking, which went into effect just over a week ago, October 1, 2012.  Some changes were also made to the laws regarding injunctions related to stalking: specifically, a specific statute for stalking injunctions was created.  I’ll address this briefly… as the new cause of action is a waste of legislative effort and ink.  Stalking was already specifically listed as a crime that could trigger an injunction.  This new law probably makes some lawmaker feel good for having passed it, and earned some good publicity, but it doesn’t create a cause of action that wasn’t already available.   Mostly, it’s repetitive and adds to the already voluminous Florida Statutes, which already fill six books.

Regarding the criminal stalking statute, Section 784.048 of the Florida Statutes, one of the main changes was to alter some of the definitional language.  The most dramatic changes are to the language of the “credible threat” definition.  The definition was changed to specifically incorporate verbal and nonverbal threats, including those by electronic communication and by pattern of conduct.  This is rather silly, as the old definition more broadly covered any “threat”, I don’t know why the legislature felt it necessary to delineate or pare down the broader language.  Again, good publicity for the bill sponsor, I’m sure.

The changes go on to eliminate the intent requirement from the definition of “credible threat”, essentially making the crime a strict liability offense.  I doubt that this change is constitutional.  Traditionally, criminal statutes require some ‘mens rea’, criminal intent, before we subject people to incarceration for the activity.  The amended statute means that an inadvertent comment, which was not intended to place fear in anyone, could result in prosecution if that comment gets to the person, and they become afraid, even if the speaker never meant to scare them.  You can read the full text here.  This could punish some innocent speech.  The statue includes langauge excepting “constitutionally protected activity” from being included in the prohibition: and last I checked, most speech is constitutionally protected.  Interestingly, simply using the word threat in the amended definition may preclude the effort to remove intent from the offense, as threat is traditionally defined as a statement of an intent to cause harm.  Formerly, the language read: “…a threat made with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety.”

The statute still includes a requirement that the fear be reasonable.  Language was added to say that incarceration is not a bar to prosecution for violations, not that it ever was.  Also, there’s no need to prove the ability to carry out the threat, not that ability was required by the old language, either. 

To be guilty of the offense of aggravated stalking, the defendant must be guilty of stalking the individual and have an aggravating factor, such as making a “credible threat” (or having an injunction, etc).  The language does expand “credible threat” to include not only the person, but their family as well, which is a pretty sensible clarification of the definition (there was previously some inclusory language in the felony subsection.)

Additionally, the statute now authorizes the court to issue an injunction for up to 10 years which may be the most sensible addition.  It’s a civil remedy, not an unlawful punishment.  It spares the victim the necessity of going to court separately for an injunction that could exceed the incarceration or supervision on the criminal case, but does not affect the ability to seek other relief in civil court, such as a permanent injunction.  This provision adds a good option for the judge, without being unnecessarily repetitive or burdensome. #newlaws