What Are the Limits of Free Speech?

By Michael J. Gelfand, Esq. / Published December 2021

Speaking too much? Saying the wrong thing? These are circumstances frequently confronted by community association officers and managers. Thus, decisions reviewed this month address what are the limits of free speech.

Unit Owner’s Accusation of Crime Not Sufficient for Association President’s Stalking Claim! 

     Now that we are in the age of social media, it is not uncommon for disputes to find their way onto social media platforms, Facebook being the most ubiquitous. What happens when the dispute becomes “nasty”? 

     The question usually turns on how far an accuser can go, or where the line is drawn between just bad behavior and stalking, allowing the victim to sue. Or, in other words, what does it take for a Florida court to issue an injunction against stalking? 

     A Florida appellate court recently ruled that a unit owner’s Facebook post alleging the president of the association was arrested for gold smuggling was not enough evidence to support the issuance of a permanent injunction against stalking. The facts in Ozyesilpinar v. Jalali, 46 Fla. L. Weekly D 1872 (Fla. 3rd DCA, August 18, 2021), indicate that the dispute began when an association sued the unit owner to enjoin her from engaging in short-term rentals. Allegedly, this caused the unit owner to retaliate against the association’s president by sending emails and making a Facebook post claiming the president was arrested in Colombia for gold smuggling. 

     The president of the association sought an injunction against the unit owner for protection against stalking. The trial court entered a permanent injunction against the unit owner ordering her to have no contact with the president based on two incidents. The first incident was an email referencing the president’s alleged gold smuggling in Colombia and a short-term rental dispute between the owner and a prospective tenant from England. The second incident was a Facebook post which stated: “OWNER OCEAN FIVE HOTEL LLC ARRESTED IN COLOMBIA IRANIAN GOLD SMUGGLER HASSAN BIDGOLI JAMALI.” 

     The Florida appellate court found that the Facebook post did not amount to stalking and reversed the permanent injunction. The court explained that the stalking law, §784.0485, Fla. Stat. (2020), which creates a claim for an injunction for protection against stalking, requires evidence of at least two incidents of harassment to establish stalking. Here, the parties agreed that the first incident, the email, was “inflammatory” and not sent for a legitimate purpose. However, the court found that the second incident, the Facebook post, did not constitute a separate incident of stalking because it contained the same allegations of gold smuggling that were found in several other emails that were sent for a legitimate purpose. 

As Florida community association officers and directors know all too well, emails, phone calls, and Facebook posts can be used to harass. When the harassment gets out of hand, there are options available. If you seek an injunction for protection against stalking, remember that you must be able to show at least two separate incidents of harassment in order to obtain an injunction.

Defamation Created Out of State Justifies Lawsuit in Florida against the Poster

     If someone living in another state posts defamatory statements on the internet about you, can you sue that person here in Florida, or must you travel to their state? In a groundbreaking decision that may deter nasty interstate fights with property owners who are out of state, the individual living out of state may have to travel to Florida to defend themselves, especially if their statements were intended to be read by Florida residents.

     Similar to the Ozyesilpinar decision discussed above, the internet was being used to allegedly defame. In this case the target was in Florida. A Florida appellate court recently held that the nonresident posting defamatory material about a Florida resident on an internet website accessible in Florida commits a wrongful act within Florida, and therefore the nonresident can be sued in Florida. In Baronowsky v. Maiorano, 46 Fla. L. Weekly D 1860 (Fla. 4th DCA, August 18, 2021), Dr. Maiorano, a Florida anesthesiologist, sued a Nevada resident in Florida for defamation.

     The complaint alleged that the defendant bought the domain name www.drcarlomaiorano.com and used it to publish webpages containing allegedly defamatory statements that the plaintiff had been arrested and subject to disciplinary action by the medical board. Ultimately, the doctor lost his job, leading him to file the lawsuit for defamation. The defendant moved to dismiss the case, arguing he did not have enough contact with the state of Florida to allow the case to proceed against him. The trial court disagreed, refusing to dismiss the case.

     The Florida appellate court affirmed the decision of the trial court, concluding that once the material was accessed in Florida, the defendant submitted himself to the authority of Florida courts. The court explained that the defendant used information available through Florida police records and Florida medical board disciplinary records, purposefully directing statements to potential Florida clients of the plaintiff.

     “[T]he reputational injury to Dr. Maiorano would not have occurred but for the fact that Baronowsky targeted his statements to Florida residents and Florida residents read those statements,” the court stated. “Baronowsky’s intentional conduct expressly aimed at residents of this state and causing reputational harm in this state connect him to the state and constituted sufficient minimum contacts to support the exercise of personal jurisdiction consistent with due process.”

     In other words, just because a person is across state lines, if that person flings alleged defamatory statements into Florida, intending the material to be read in Florida, that person may have to answer for his (or her) deeds in Florida! Consider how that would apply to a parcel owner who is out of state. Being beyond the state’s boundary will not insulate a parcel owner from justice by Florida courts! 

Michael J. Gelfand, Esq.

Senior Partner, Gelfand & Arpe, P.A.

     Michael J. Gelfand, Esq., the Senior Partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a dual Florida Bar Board Certified lawyer in Condominium and Planned Development Law and in Real Estate Law, Certified Circuit and County Civil Court Mediator, Homeowners Association Mediator, an Arbitrator, and Parliamentarian. He is a past Chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at ga@gelfandarpe.com or (561) 655-6224.