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Did He Really Write That about Our Association on Facebook?
An interesting question that arises from time to time is whether the protections of the United States Constitution (and the Florida Constitution) apply within the gates of a community association. In most circumstances, in order to begin a constitutional analysis the very first step is whether there is any governmental action taking place. Clearly, in the context of a homeowners’ association resident publishing their own opinions on a blog, there is no governmental action. Even so, insofar as freedom of the press is concerned, the First Amendment to the United States Constitution reigns supreme, though not without certain limitations. In a recent Fifth District Court of Appeal case, Fox v. Hamptons at Metrowest Condominium Association, Inc., the Court had the opportunity to examine this issue.
In this case, association member, Fox, appealed the trial court’s order finding him guilty of civil contempt of court for violating a settlement agreement that he entered into with the association. He argued that portions of the trial court’s contempt order constituted a prior restraint on his protected speech rights under both the Florida Constitution and the United States Constitution. In short, the Court agreed.
The background of this case is a typical scenario where Fox failed to comply with the association’s declaration and its rules and regulations which caused irreparable harm to other owners and residents within the association. The association’s complaint also alleged that Fox was engaged in a continuous course of conduct “designed and carried out for the purpose of harassing, intimidating, and threatening other residents, the Association and its representatives.” The trial court had entered a preliminary injunction and then the parties reached a settlement agreement in which Fox agreed to cease certain activities.
It did not take long for Fox to violate the terms of the settlement agreement. As a result, the association filed a motion for contempt and argued that Fox willfully and intentionally violated the terms of the settlement agreement, and thus the final judgment, too. The trial court found Fox in civil contempt and, in so doing, also ordered that Fox 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, and any other management company of the association on any website, blog, or social media. He was further ordered to take down all such information currently on any of his websites or blogs. The trial court’s order also prohibited Fox from starting any new blogs, websites, or social media websites related to the association. If anyone reached out to Fox with inquiries regarding the association, pursuant to the court’s order, he was not allowed to post a response online. Instead, he would have to call the person to express his concerns verbally.
On appeal, Fox argued to the Court that the trial court’s punishment violated his right to speak freely. In the end, the Court agreed that the trial court’s blanket prohibition of Fox’s online speech constituted an unconstitutional prior restraint on his free speech rights. In so doing, the Court noted that “[i]t has been established that ‘[p]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.’” The Court also noted that the United States Supreme Court has “consistently classified emotionally distressing or outrageous speech as protected, especially where that speech touches on matters of political, religious or public concern.” The Court then cited other cases finding that statements on an individual’s blog constituted opinion speech protected by the First Amendment.
However, the Court wisely noted that “the right to free speech and the freedom of the press are not without their limits” and, in so doing, cited to prior United States Supreme Court opinions which reminds readers of that “[f]reedom of speech does not extend to obscenity, defamation, fraud, incitement, true threats, and speech integral to criminal conduct. Speech that does not fall into these exceptions remains protected.” If the writer/publisher prints libelous, defamatory, or an injury story, the remedy does not lie with an injunction, but rather with a claim for damages or criminal action after publication.
With the aforementioned in mind, the Court determined that the trial court erred when it prohibited Fox from making any statements at all pertaining to the association on his websites, blogs, and social media. Therefore, the trial court order was reversed in part, but only in regard to the complete prohibition imposed on Fox on posting on any website, blog, or social media. However, the Court also opined trial court did not err in determining that the previously agreed-upon settlement agreement could be enforced and it affirmed the contempt order. The case was then remanded back to the trial court for determination of an order consistent with the opinions of the Court.
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Rembaum’s Association Roundup
The community association legal news that you can use!
The free e-magazine for Community Association Managers, Board Members, Owners & Developers
Have an association related question? Find your answer at
RembaumsAssociationRoundup.com
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horized representatives) have the right to access their community association’s official records for inspection and copying. However, this right is not absolute as there are several official records which are exempt from member access.
