New Decision: Freedom of Speech (Fox v. Hamptons at Metrowest)
July 26, 2017

Friday the Fifth District Court of Appeal addressed in a condominium association harassment and nuisance context pre-publication restraints as penalty for contempt in Fox v. Hamptons at Metrowest Cd’m. Ass’n., Inc., Case No. 16-1822 (Fla 5th DCA, July 21, 2017).

In sum, the decision does not extend “Constitutional free speech” rights to condominium unit owners to injure associations or association volunteers. The decision does not address an association’s authority, if included in a covenant, to restrict speech.

The Association’s injunction claim alleged that Mr. Fox, a resident of the Hamptons at MetroWest:

…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 parties settled resulting in a Final Judgment ordering the parties to comply with the settlement agreement and retaining jurisdiction to enforce. The terms of the agreement were not recited in the opinion.

Thereafter, the trial court granted the Association’s Motion for Contempt. Instead of simply enforcing the settlement agreement, the trial court’s civil contempt order entered penalties apparently beyond what was agreed and beyond what was incorporated in the final judgment.

The trial court’s expansive order required 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 Hamptons, or any other management company of the Hamptons on any website, blog, or social media.

· Take down such information currently on any of his websites or blogs.

· As punishment, not start any new blogs, websites or social media websites related to the Hamptons or the Association.

Fox appealed.

Despite first impressions by many readers, the decision was not a loss for the Association as the decision affirmed without comment enforcement of the settlement agreement’s terms. Only penalties not included in the settlement agreement were reversed. The appellate court seemingly could stopped there, the reversal on the excessive portion of the Judgment merely on procedural grounds.

But the appellate court continued, detouring to State and Federal constitutional “Freedom of Speech,” Amend. I, U.S. Const.; Art. I, § 4, Fla. Const., and further citing to decisions that court crafted injunctions are subject to freedom of speech constraints, Alexander v. United States, 509 U.S. 544, 550 (1993). Near v. Minnesota ex rel. Olson, 283 U. S. 697, 712 (1931) (“…suppression is accomplished by enjoining publication….”). The court explained there are boundaries demarcating constitutional protection, including “obscenity, defamation, fraud, incitement, true threats, and speech integral to criminal conduct”, but a speaker’s “public criticism of his business practices” is protected from prior restraint, including judicial injunctions. The court remarked that businesses and associations are not powerless to respond, and do not just have to take it. Instead, if there is damage the civil or criminal proceedings are the remedy.

[a] free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.

Citations omitted.

The opinion is less than a direct First Amendment decision. The determination that the trial court’s penalties went beyond the settlement agreement, and no less affirming the penalties for violating the agreement, would lead one to conclude that the remainder of the opinion was pure dicta. This is especially as courts are usually directed to avoid constitutional issues unless necessary.

Perhaps reinforcing the nature of the dicta, Quail Creek P.O.A., Inc. v. Hunter, 538 So.2d 1288 (Fla. 2nd DCA 1989), was not cited. Note that the Quail Creek decision reversing a summary judgment invalidating a “For Sale” sign restriction was also limited:

…very simply hold that neither the recording of the protective covenant in the public records, nor the possible enforcement of the covenant in the courts of the state, constitutes sufficient "state action" to render the parties' purely private contracts relating to the ownership of real property unconstitutional.

The Quail Creek court expressly sidestepped whether there was state action.

There have been at least two so-called “flag case” decisions from Florida’s Federal District Courts. Many readers have focused on one, Gerber v. Longboat Harbour North Condominium, 724 F. Supp. 884 (MD Florida, 1989), in which one could conclude that the District Court was annoyed (the writer’s wording) that the case was pursued after the Florida Legislature granted flag display rights, albeit after the initial alleged violation. In turn this may have provoked the Court:

This Court cannot agree with its conclusion that judicial enforcement of racially restrictive covenants is state action and judicial enforcement of covenants which restrict one's right to patriotic speech is not state action. Enforcement of private agreements by the judicial branch of government is state action for purposes of the Fourteenth Amendment, as the Highest Court in the land declared it to be in Shelley; it cannot be said that the terms of the agreement either increase or decrease the extent to which government is involved. It is an exercise in sophistry to posit that courts act as the state when enforcing racially restrictive covenants but not when giving effect to other provisions of the same covenant.

Id. at 886-887. The District Court doubled down on re-consideration, vacating the summary judgment referenced above, except reaffirming the state action holding. Gerber v. Longboat Harbour North Condominium, Inc., 757 F. Supp. 1339 (M.D. Fla. 1991).

Another Federal District Court took the opposite stance, Murphree v. Tides Cd’m. at Sweetwater, Case No. 3:13-cv-713-J-34MCR (M.D. Fla. 2014), and rejected that enforcement of a flag covenant amounted to state action in the condominium context. Murphree cited to Loren v. Sasser, 309 F. 3d 1296, 1303 (11th Cir. 2002) which included a “For Sale” sign covenant dispute and held that private enforcement of a private covenant was not state action sufficient to invoke the remedies of The Civil Rights Act, 42 U.S.C. § 1983, and commented that Shelley v. Kraemer, 334 U.S. 1, 19-20, 68 S.Ct. 836, 845, 92 L.Ed. 1161 (1948), has not been extended beyond race discrimination contexts. Id. at 1303. Interestingly, Loren did not cite to Gerber.

Noting that this issue has not been addressed by the United Stated Eleventh Circuit, nor the United States Supreme Court, there have been significant questions whether the Gerber decision on the politically charged flag waiving issue would survive further review. This is perhaps a more interesting question in the post-Citizens United era in which the First Amendment is seen as more protective.

Florida appellate courts have not cited Gerber with enthusiasm. Gerber was been distinguished in Latera v. Isle Mission Bay Homeowners, 655 So. 2d 144 (Fla. 4th DCA, 1995), (No constitutional right to satellite dish.).

Pre-dating many of these decisions is White Egret Condominium, Inc. v. Franklin, 379 So. 2d 346 (Fla. 1979), which held that when found in a condominium

age limitations and restrictions may be enforced if reasonably related to a lawful objective and not applied in an arbitrary or discriminatory manner.

Interestingly, the decision reinforced basic covenant law citing Hidden Harbor Estates, Inc. v. Norman, 309 So.2d 180, 181-82 (Fla. 4th DCA 1975) and did not address the state action component as part of an equal protection analysis which would appear to be different from a freedom of speech analysis. The one citation that did not involve a state actor was a California decision that did not address the U.S. Constitution.

Michael J. Gelfand

Past Chair
Real Property, Probate and Trust Law Section of The Florida Bar
Florida Bar Board Certified Real Estate Attorney
Florida Supreme Court Certified Mediator:
Civil Circuit Court & Civil County Court
Fellow, American College of Real Estate Attorneys


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