Many community associations throughout Florida have experienced an owner who opposes the board and is vocally negative toward the efforts of the association representatives. With the development of social media and the internet, many have also experienced these disgruntled owners posting their opinions on the internet through blogs, website and the like. Quite often these owners are not expressing accurate information regarding the association and boards look for help from their attorneys to stop what they consider to be abusive and harassing conduct. The Florida Fifth District Court of Appeal has recently issued a ruling that identifies some limits that court action can take in dealing with such disputes and leaving questions regarding other actions that can be taken unanswered.

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In Fox. V. Hampton at Metro West Condominium Association, Inc., Case No. 5D16-1822 (July 21, 2017), the Appellate Court was presented the situation in which the Condominium Association had initially brought a legal action against the unit owner to obtain an injunction to stop the owner from what they claimed to be conduct that was harassing, intimidating and otherwise threatening to other owners, and for his on-going publishing of negative claims about the Association and/or the Board on the internet. No trial was held as the parties entered into a settlement agreement that was ultimately incorporated into a final judgment under which Fox agreed to stop certain actions. Soon thereafter, however, the conduct began again and the Association filed a motion for contempt and enforcement of the agreement, claiming that Fox had willfully and intentionally violated the terms of the agreement.

After holding a hearing, the trial court did find Fox in civil contempt for the violations of the agreement and, in addition to enforcing the provisions of the settlement agreement, also ordered Fox to stop posting, circulating, and publishing any pictures or personal information about current or future residents, board members, management, employees or personnel of the management company, vendors of the Association, or any other management company used by the Association, on any website, blog or social media. Fox was also ordered to take down what he had already posted on any of his websites or blogs. The trial court also prohibited Fox from starting any new blogs, website or social media website related to the Association. Fox was also told by the trial court that he could not respond to an inquiry about living at the Community online, but rather could only respond with a telephone call to the inquirer. Fox appealed the added requirements of the trial court that went beyond the original agreement and judgment, claiming that they violate his right to speak freely, and the appellate court agreed as to the added limitations.

In reaching it’s conclusion, the Appellate Court applied the Freedom of Speech provisions of the US and Florida Constitutions, noting that the “penalties” and additional limitations imposed by the trial court beyond the terms of the settlement agreement constituted what is termed “prior restraint” (or censorship) by the government, which is not allowed. This action by the trial court effectively was sufficient “State Action” to trigger the Constitutional protections for the unit owner.

While the Appellate Court notes that freedom of speech does not extend to obscenity, defamation, fraud, incitement, true threats and speech integral to criminal conduct, the conduct of Fox in this case did not reach any of these levels. The Court indicated that it is more legally appropriate to address the conduct of an owner posting or publishing allegedly false statements and/or other actionable statements after the fact rather than before it occurs. Consequently, the Appellate Court decided that the trial court made an error when it prohibited Fox from making any future statements whatsoever pertaining to the Community or the Association without conducting a proper constitutional inquiry first and reversed that part of the trial court decision. However, the Appellate Court did not reverse any aspect of the trial court’s enforcement of the original settlement agreement and final judgment. Only by it adding the “punishment” terms did the Appellate Court conclude that this particular trial court went too far.

This particular case is unusual in that Constitutional protections are being applied to a situation that traditionally has been considered one of private contract. Constitutional concerns apply to actions of the State or government and generally do not apply to private agreements or individuals. Time will tell whether this is a trend that may be starting among the courts or simply an anomaly decision limited to the facts of just this case. This is particularly so in light of the Appellate Court upholding the restraints on the speech of Fox that was set forth in the original settlement agreement and judgment, which also was enforced by the trial court, bringing State action into the situation as well. As with any case of this nature, much will depend upon the particular facts involved as to whether court action may be considered and/or worth pursuing.