Alkiviades A. David v. John Textor
189 So. 3d 871
Fla. Dist. Ct. App.2016Background
- Plaintiff (Textor) obtained an ex parte cyberstalking injunction under Fla. Stat. §§ 784.046 and 784.0485 against nonresident defendant David based on communications and online posts during an ongoing business/patent dispute between their companies.
- Alleged acts: two direct communications (texts/emails) demanding settlement; emails threatening to expose damaging information; public online posts/retweets about Textor; an interview quote that David “would have killed [Textor] if he could”; and tagging Textor’s Instagram with a Hitler photo.
- Trial court granted a broad injunction prohibiting David from communicating with Textor or posting about him and ordering removal of existing material; David made a limited appearance and moved to dissolve.
- On appeal, David argued the alleged conduct did not meet the statutory cyberstalking standard and the injunction unlawfully restrained speech in violation of the First Amendment.
- The Fourth District reversed, holding the communications did not constitute cyberstalking (no substantial emotional distress; communications served legitimate purposes) and the injunction was an impermissible prior restraint on speech.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the alleged communications constitute "cyberstalking" under Fla. law (course of conduct causing substantial emotional distress and serving no legitimate purpose) | Textor: David’s texts, emails, online threats/posts caused fear and substantial emotional distress and thus satisfy statutory cyberstalking elements | David: Communications arose from legitimate business litigation/settlement efforts or public commentary; did not cause substantial emotional distress to a reasonable person | Held: Not cyberstalking — communications either served legitimate purposes or would not cause substantial emotional distress to a reasonable person |
| Whether public online posts were "directed at a specific person" for cyberstalking purposes | Textor: Retweets, posts, and tagging were targeted and actionable cyberstalking communications | David: Many posts were public commentary/retweets not directed solely at Textor and thus are constitutionally protected | Held: Many online postings were not directed at a specific person and resembled protected public commentary |
| Whether the ex parte injunction impermissibly restrained speech (First Amendment) | Textor: Injunction necessary to prevent continuing harassment and threat | David: Injunction constitutes a prior restraint on speech, prohibiting communications about Textor and suppressing protected expression | Held: Injunction was an unconstitutional prior restraint; if defamatory, Textor’s remedy is a damages suit rather than prior restraint |
| Whether a joking/ambiguous death comment amounted to a credible threat | Textor: Quote that David “would have killed [Textor] if he could” supports fear of violence | David: Statement was a joke to a journalist and not a credible, particularized threat | Held: Statement, in context, did not amount to a credible threat causing substantial emotional distress |
Key Cases Cited
- Wyandt v. Voccio, 148 So. 3d 543 (Fla. 2d DCA 2014) (two incidents required for injunction under § 784.046)
- Bouters v. State, 659 So. 2d 235 (Fla. 1995) (reasonable-person standard for substantial emotional distress)
- Goudy v. Duquette, 112 So. 3d 716 (Fla. 2d DCA 2013) (communications serving legitimate purpose not actionable)
- Chevaldina v. R.K./FL Mgmt., Inc., 133 So. 3d 1086 (Fla. 3d DCA 2014) (public blog posts not directed at a specific person)
- Vrasic v. Leibel, 106 So. 3d 485 (Fla. 4th DCA 2013) (temporary injunction restraining speech is prior restraint)
- Concerned Citizens for Judicial Fairness, Inc. v. Yacucci, 162 So. 3d 68 (Fla. 4th DCA 2014) (prior restraints are serious First Amendment intrusions)
- Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (U.S. 1976) (prior restraints are least tolerable infringement on First Amendment)
- Watts v. United States, 394 U.S. 705 (U.S. 1969) (context matters in assessing whether a statement is a true threat)