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Florida Ct. Rules on Constitutionality of “Prior Restraints” That Prohibit Homeowner Postings about HOA on Internet

by | Aug 1, 2017 | Dispute Resolution

Florida Appellate Court decision (July 21, 2017).

This case involved efforts by a homeowners association (“Association”) to stop a homeowner (“Owner”) from utilizing the internet to voice his displeasure over the quality of life within the community governed by Association.  Initially, Association filed a lawsuit against Owner which sought injunctive relief to prevent the posting, circulating, and publishing pictures or personal information about current or future residents, board members, management, employees or personnel of the management company, vendors of Association, or any other management company of Association, on any website, blog, or social media.  Association contended that Owner’s conduct was intended to harass, intimidate, and threaten other residents of the community. After filing the action, Association obtained an ex parte preliminary injunction against Owner to prevent certain actions from continuing. Thereafter, the parties entered into a settlement agreement in which Owner agreed to cease certain actions. The court then entered a judgment against Owner enforcing the settlement agreement.

Subsequent to entering into the settlement agreement, Association sought a contempt citation against a homeowner for alleged violations of the settlement agreement / judgment. The trial court found Owner in contempt and ordered Owner to stop posting, circulating, and publishing any pictures or personal information about residents, directors, and management on any website, blog, or social media. The trial court order also ordered Owner to take down information that was currently on his websites or blogs, and from starting any new blogs, websites or social media websites relating to Association. The trial court orders became amendments to the settlement agreement between Association and Owner. Owner appealed the trial court’s orders contending that they violated his constitutionally protected right to free speech. Owner contended that a blanket prohibition of his online speech was unconstitutional under both state and federal law because it constituted an impermissible prior restraint on free speech.

On review, the appellate court stated that: (i) both the United States Constitution and the Florida Constitution prohibit laws that curtail either freedom of speech or freedom of the press; (ii) a prior restraint on publication is presumptively unconstitutional; (iii) court orders that forbid speech activities are classic examples of prior restraints; (iv) online speech is protected under the First Amendment; and (v) freedom of speech does not extend to obscenity, defamation, fraud, incitement, true threats, and speech that is integral to criminal conduct; (vi) the appropriate sanction for First Amendment misdeeds is a subsequent civil or criminal proceeding and not a prior restraint.

The appellate court concluded that the trial court erred in prohibiting Owner from making any statements pertaining to Association on his websites, blogs, and social media without conducting a proper constitution inquiry to determine if the restriction served a compelling state interest. Thus, the appellate court remanded the case back to the trial court to make such a determination. The decision noted that prior case decisions have held that prohibiting use of the internet and other interactive computer services for the purpose of inflicting emotional distress on others is an example of a restriction that serves an important governmental interest.

See case decision: Fox_v._Hamptons_at_MetroWest_Condo._Ass’n_Inc._(Fla._App._2017)1