Divided South Florida Court Rules on Free-Speech Issues in Social Media Row Between Senator and Sex Offender
"Merely wishing someone ill health in a public forum, without more, cannot serve as the legal basis for an injunction," the panel ruled.
June 25, 2020 at 02:26 PM
5 minute read
A stalking injunction blocking a man from contacting, writing about or going within 1,000 feet of Florida Sen. Lauren Book came before the Fourth District Court of Appeal for the second time Wednesday, when the court issued a lengthy and divided en banc opinion.
It was a case in which social media, public officials and the U.S. Constitution collided, giving the court "the opportunity to address whether First Amendment freedoms have limits when applied to 21st century communications."
While the majority found public social media posts not sent directly to someone can rise to the level of stalking under Florida law if the intent is for word to get out to the victim, it ruled that this case didn't meet the mark.
Book obtained an injunction against Derek Logue. She alleged he had harassed her during a Tallahassee protest in 2015 and a New York film festival in 2016, and cyberstalked her by posting vulgar and insulting content about her on his website, blog and social media accounts.
The pair clashed because Book advocates for child-abuse victims and laws supporting sex offender registries, while Logue is a vocal critic of them. Logue is also a convicted child molester, according to Wednesday's opinion.
Analyzing the incidents, the appellate panel found the injunction impeded on Logue's constitutional right to free speech.
The protest saw Book march in favor of sex offender laws, while counterprotester Logue allegedly displayed a diorama of a homeless camp and commode chair with the words, "King Ron's Throne," referring to Book's father. And after a documentary about sex offenders, Logue allegedly shouted allegations about the senator's father.
Logue also posted a photo of Book's home and her address, an obscene song and a cartoon headstone with a vulgar insult, with "Died of Natural Causes" written on the depiction, according to Wednesday's ruling.
"Merely wishing someone ill health in a public forum, without more, cannot serve as the legal basis for an injunction," the panel ruled.
Because Book is a public figure and used her address for a political action committee, the majority panel found Logue was within his rights to share it.
|'Tempting'
Fourth DCA Judge Mark Klingensmith wrote the majority ruling, which drew concurrences from Chief Judge Spencer Levine and Judges Robert Gross, Dorian Damoorgian, Jonathan Gerber, Burton Conner, Alan Forst and Jeffrey Kuntz.
They saw the case as a classic example of why the First Amendment was created, noting that for public officials, "intemperate attacks from some of the citizens they represent when advocating for issues others may strenuously oppose" are a fact of political life.
"Respondent's offensive vulgar and insulting posts are part of that friction and grist of public discourse intended by our Founders when forming this nation," the majority wrote. "As tempting as it might be to force some civility into the matter by stanching respondent's speech against petitioner with a court order, to do so would ignore the protections of the First Amendment and the wording of the stalking statute."
Gross concurred specially, writing to stress the importance of rehearing the case en banc because "While the drafters of the First Amendment did not conceive of the Internet, they know the paramount importance of freedom of speech." Gerber also concurred specially, expanding upon the majority's view that public officials can still be stalking victims.
"Judges must be cognizant about such a possibility existing, so that we may provide the official facing such a threat with the protections which the law permits," Gerber wrote.
|'Haven't we witnessed enough?'
Fourth DCA Melanie May wrote a four-page dissent, backed by Judges Cory Ciklin and Martha Warner. She reasoned Logue's posts did amount to stalking, serving only to harass Book. May stressed that U.S. elections have been manipulated and terrorists have been radicalized through social media, and pointed to Cesar Sayoc, who mailed pipe bombs to public figures, inspired by social media posts.
"Must we wait until someone commits some violent act before our system can protect its citizens? Haven't we witnessed enough tragedies to know that our failure to address precursors of violence often leads to a more egregious tragedy?" May wrote. "Social media posts, which direct attention and can motivate others to act, are threatening and dangerous. In fact, perhaps more so as the subject of the postings has no way of knowing who reads or may act upon them."
May also found the law doesn't differentiate between public officials and ordinary citizens, and "nor should we."
Gary Edinger and James Benjamin of Benjamin, Aaronson, Edinger & Patanzo in Gainesville represent Logue pro bono, and found May's dissent "unpersuasive."
"I would consider it emotional rather than legal argument," Edinger said. "Emotional because the appellant, Mr. Logue, is not a very sympathetic character, and the particular messages that he posted on his website were not polite."
Meanwhile, Book's attorney J. David Bogenschutz of J. David Bogenschutz & Associates in Fort Lauderdale feels the majority "missed the point," noting that the trial judge's order sought to keep Logue away from Book, not "to muzzle him."
"This is the kind of thing, exactly as Judge May said, that we have to watch very closely," Bogenschutz said. "Because you wind up with a horrific tragedy if you don't do something that curtails this right away."
Bogenschutz said he's considering avenues for appeal.
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