Budlove v. Johnson

• Docket Number: s. 2D22-1549,2D22-1550,2D22-1551,2D22-1552,2D22-1553
• Decision Date: 29 December 2023
• Citation: Budlove v. Johnson, 377 So.3d 206 (Fla. App. 2023)
• Parties: Brittany BUDLOVE, Appellant, v. William JOHNSON, Appellee. Brittany Budlove, Appellant, v. Joenetta Johnson, Appellee. Brittany Budlove, Appellant, v. Susanne Campbell, Appellee. Brittany Budlove, Appellant, v. Tanya Lewis, Appellee. Brittany Budlove, Appellant, v. Rafaela McCoy, Appellee.
• Court: Florida District Court of Appeals

377 So.3d 206

Brittany BUDLOVE, Appellant,

v.William JOHNSON, Appellee.

Brittany Budlove, Appellant,

v.Joenetta Johnson, Appellee.

Brittany Budlove, Appellant,

v.Susanne Campbell, Appellee.

Brittany Budlove, Appellant,

v.Tanya Lewis, Appellee.

Brittany Budlove, Appellant,

v.Rafaela McCoy, Appellee.

Nos. 2D22-1549, 2D22-1550, 2D22-1551, 2D22-1552, 2D22-1553

District Court of Appeal of Florida, Second District.

December 29, 2023

Appeal from the Circuit Court for Pasco County; Lauralee Ganson Westine, Judge.

Dayna Maeder of Maeder Infantolino, LLC, Jupiter, for Appellant.

N. Rivver Cox and Anthony M. Innacio of Bush Graziano Rice & Platter, P.A., Tampa, for Appellee, Tanya Lewis.

No appearance for remaining Appellees.

ATKINSON, Judge.

Brittany Budlove appeals an April 8, 2022, order granting the petitions of the five appellees—William Johnson, Joenetta Johnson, Susanne Campbell, Tanya Lewis, and Rafaela McCoy—for protection against stalking pursuant to sections 784.0485and784.048, Florida Statutes (2021).¹We affirm the entry of all five injunctions for stalking and reject without discussion Budlove’s argument that there was insufficient evidence for the trial court to impose the injunctions against her pursuant to sections 784.0485and784.048.However, the scope of all five injunctions exceeds that which is allowed by the First Amendment to the United States Constitution by imposing a prior restraint on protected speech.To the extent that they do so, the injunctions must be reversed in part.

On January 15, 2021, the trial court issued a final judgment terminating Budlove’s parental rights with regard to T.B., Budlove’s biological child.Each of the appellees was involved in the dependency case that led to the termination.

During the period between the filing of the petition for termination of parental rights and the order terminating Budlove’s parental rights, Budlove was twice ordered to refrain from either contacting some of the appellees or posting certain informa- tion on online platforms.On December 21, 2020, Ms. Johnson requested, and the trial court issued, a "no contact order" against Budlove and her now ex-husband, John Budlove.The order stated that Brittany and John Budlove were not to have any "direct, indirect, or third person contact with the caregiver, Joenetta Johnson," were to "remain at least 500 feet from Joenetta Johnson’s residence, place of employment, and/or any other place Ms. Johnson is," and were not "permitted to have any written, telephonic, electronic, or social media contact with Ms. Johnson."

Then, on August 17, 2021, the trial court found that Budlove had been posting

multiple videos and information on social media, including, but not limited to the following: unredacted police reports from the investigation; confidential information about the child [T.B.] and the child, M.B.; photos of the child, T.B.; details from mediation; and names of all parties, including judges, attorneys, CPIs, detectives, and the caregiver.²

The trial court ordered Budlove to "remove all confidential information relating to [T.B.’s dependency case] from online or from any posting sites within twenty-four (24) hours of service of [the] order."

After learning that Budlove continued to post some things online related to the dependency case even after the August 17 order—although Budlove maintains that none of those posts violated the orders—the five appellees all filed petitions for injunctions against Budlove for stalking.At hearings on the petitions, the appellees claimed that Budlove was harassing and cyberstalking them and causing Budlove’s followers on social media platforms to do the same.On April 8, 2022, the trial court announced that it was granting all five petitions for injunctions against Budlove for stalking.The written order broadly prohibits Budlove from having any contact with the appellees.And "adding to the traditional language in the injunctions,"the trial court ordered Budlove in open court to "not post online anything relating to [T.B.’s] dependency case."The trial court explained that "[t]his includes, but is not limited to, the names of parties related to the case, such as case managers, Assistant State Attorneys, caregivers, or other children in this case."The written order then stated the following: "[Budlove] shall not post on social media about case [redacted], includ[ing] but not limited to case managers, parties, and other minor children to [the] case.Anything already posted on social media about case #[redacted] shall be removed."While Budlove does not argue on appeal that the entry of the injunctions violated the First Amendment, Budlove argues that the prohibitions of the injunctions against her are unconstitutional prior restraints on speech.SeeAlexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441(1993)(noting the "distinction, solidly grounded in our cases, between prior restraints and subsequent punishments").

[1–5] Constitutional issues are "question[s] of law subject to de novo review."SeeState v. Adkins, 96 So. 3d 412, 416(Fla.2012)(quotingCrist v. Ervin, 56 So. 3d 745, 747(Fla.2011)).States are prohibited from "abridging the freedom of speech."Seeamend. I, U.S. Const.;see alsoVirginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535(2003)(noting that the First Amendment is applicable to the states).The First Amendment requires courts to scrutinize restrictions on "expression because of its message, its ideas, its subject matter, or its content."Ashcroft v. ACLU, 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771(2002)(quotingBolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65, 103 S.Ct. 2875, 77 L.Ed.2d 469(1983)).Content-based "[p]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights."Concerned Citizens for Jud. Fairness, Inc. v. Yacucci, 162 So. 3d 68, 73(Fla. 4th DCA2014)(quotingNeb. Press Ass’n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683(1976))."Temporary restraining orders and permanent injunctions—i.e.,court orders that actually forbid speech activities—are classic examples of prior restraints."Alexander, 509 U.S. at 550, 113 S.Ct. 2766.And "[a]ny form of prior restraint of expression comes to a reviewing court bearing a heavy presumption against its constitutional validity; therefore, the party who seeks to have such a restraint upheld carries a heavy burden of showing justification for the imposition of such a restraint."State ex rel. Miami Herald Publ’g Co. v. McIntosh, 340 So. 2d 904, 908(Fla.1976)(first citing N.Y. Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822(1971); and then citing Bantam Books v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584(1963)).

[6, 7] Neither the government nor courts may restrain speech "based on hostility—or favoritism—towards the underlying message expressed."R.A.V. v. City of Saint Paul, 505 U.S. 377, 386, 112 S.Ct. 2538, 120 L.Ed.2d 305(1992)."[C]ontent-based restrictions on speech have been permitted, as a general matter, only when confined to the few ‘historic and traditional categories [of expression] long familiar to the bar.’ "United States v. Alvarez, 567 U.S. 709, 717, 132 S.Ct. 2537, 183 L.Ed.2d 574(2012)(alteration in original)(quotingUnited States v. Stevens, 559 U.S. 460, 470, 130 S.Ct. 1577, 176 L.Ed.2d 435(2010)).Otherwise, content-based speech restrictions "may be justified only if … they are narrowly tailored to serve compelling state interests."Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 585 U.S. 755, 138 S. Ct. 2361, 2371, 201 L.Ed.2d 835(2018)(quotingReed v. Town of Gilbert, 576 U.S. 155, 163, 135 S.Ct. 2218, 192 L.Ed.2d 236(2015)).A speech restriction is not narrowly tailored when the restriction regulates "in such a manner that a substantial portion of the burden on speech does not serve to advance its goals."SeeWard v. Rock Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, 105 L.Ed.2d 661(1989).

[8, 9]"There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause."Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204(3d Cir.2001);see alsoNAACP v. Claiborne Hardware Co., 458 U.S. 886, 909–10, 102 S.Ct. 3409, 73 L.Ed.2d 1215(1982)(holding that "[s]peech does not lose its protected character" even when the speech involved publicly listing the names of individuals who did not participate in a boycott);Org. for aBetter Austin v. Keefe, 402 U.S. 415, 420, 91 S.Ct. 1575, 29 L.Ed.2d 1(1971)(holding that First Amendment protection applied to the distribution of leaflets when those leaflets accused an individual of racism and provided personal information about the person, including his telephone number).While the Florida Legislature has found that individuals should under some circumstances be entitled to an injunction against harassment even when that harassment unquestionably limits a person’s speech, see, e.g.,§§ 784.0485(1)("For the purposes of injunctions for protection against stalking under this section, the offense of stalking shall include the offense of cyberstalking.");784.048(1)(d)1 (" ‘Cy- berstalk’ means … [t]o engage in a course of conduct to communicate, or to cause to be communicated, directly or indirectly, words, images, or language by or through the use of electronic mail or electronic communication, directed at or pertaining to a specific person …."), courts are not permitted to enjoin a course of conduct to the extent that it encompasses constitutionally protected activity, see§ 784.048(1)(b)(specifying that the "[c]ourse of conduct" constituting cyberstalking "does not include constitutionally protected activity such as picketing or other organized protests").Here, the scope of the injunction exceeds that which is permitted under the First Amendment by enjoining a course of conduct that includes activity that is...