       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                         PATRICK A. NEPTUNE,
                              Appellant,

                                     v.

                            PHILIP LANOUE,
                               Appellee.

                              No. 4D14-3133

                           [November 4, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Richard Eade, Judge; L.T. Case No. DVCE 14-4939.

   Patrick A. Neptune, Miramar, pro se.

   No appearance for appellee.

FORST, J.

    Appellant Patrick Neptune appeals the granting of an injunction against
stalking issued in favor of Appellee Philip Lanoue (“the Officer”). The
appeal raises several issues, most notably arguing that the petition for the
injunction failed to allege incidents of stalking as defined by statute and
that there was insufficient evidence at trial to support the injunction. We
disagree and accordingly affirm the entry of the injunction. However, we
agree with Appellant that one of the conditions of the injunction was
unconstitutional and therefore reverse and remand to the trial court to
strike or modify the terms of the injunction preventing Appellant from
posting on the Internet regarding the Officer.

                               Background

    The Officer is a police officer for a city police department in Florida.
Appellant alleges that the Officer “cut him off” in traffic, so Appellant
followed the Officer into the neighborhood in which they both lived and
scolded him for his driving. According to Appellant, the Officer then
stopped Appellant from leaving the area and wrote him a ticket for failing
to wear a seatbelt, an allegation Appellant staunchly denies. Appellant
claims the Officer later informed Appellant’s parents of the incident.
   Appellant subsequently sent several letters to the Officer’s Chief and
several other public officials, complaining about his mistreatment by the
Officer. Appellant sent at least three letters to the Officer’s home address.
Appellant also posted the Officer’s picture on a “copblock” website with a
complaint about the incident.

   This conduct led the Officer to seek an injunction against stalking
directed toward Appellant. A final injunction was issued prohibiting
Appellant from coming within 500 feet of the Officer’s residence, from
posting anything on the Internet regarding the Officer, and from defacing
or destroying the Officer’s personal property. As stated above, we write
solely to discuss the prohibition affecting Appellant’s Internet speech.

                                 Analysis

   “‘[N]ot all speech is of equal First Amendment importance.’” Hustler
Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988) (quoting Dun &
Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758 (1985)).

      [W]here matters of purely private significance are at issue,
      First Amendment protections are often less rigorous. That is
      because restricting speech on purely private matters does not
      implicate the same constitutional concerns as limiting speech
      on matters of public interest: There is no threat to the free
      and robust debate of public issues; there is no potential
      interference with a meaningful dialogue of ideas; and the
      threat of liability does not pose the risk of a reaction of self-
      censorship on matters of public import.

Snyder v. Phelps, 562 U.S. 443, 452 (2011 (internal quotations and
citations removed). In contrast, “[s]peech on ‘matters of public concern’ .
. . is ‘at the heart of the First Amendment’s protection.’” Id. at 451-52
(quoting Dun & Bradstreet, 472 U.S. at 758-59). “[E]xpression on public
issues ‘has always rested on the highest rung of the hierarchy of First
Amendment values.’” NAACP v. Claiborne Hardware Co., 458 U.S. 886,
913 (1982) (quoting Carey v. Brown, 447 U.S. 455, 467 (1980)).

   In this case, the amount of protection afforded to Appellant’s speech
turns on whether it is of public or private significance.

      Speech deals with matters of public concern when it can be
      fairly considered as relating to any matter of political, social,
      or other concern to the community, or when it is a subject of

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      legitimate news interest; that is, a subject of general interest
      and of value and concern to the public.

Snyder, 562 U.S. at 453 (internal quotations and citations omitted). While
personal attacks on the Officer ordinarily would not be considered to be
“of public concern,” Appellant’s online posting was exclusively about an
alleged abuse of power by the Officer acting in his official capacity as a
police officer. Obviously, alleged misconduct by police officers is a matter
of “general interest and of value and concern to the public.” Additionally,
“[e]nsuring the public’s right to gather information about their officials not
only aids in the uncovering of abuses, but also may have a salutary effect
on the functioning of government more generally.” Glik v. Cunniffe, 655
F.3d 78, 82-83 (1st Cir. 2011) (citations omitted). See also Gentile v. State
Bar of Nev., 501 U.S. 1030, 1035 (1991) (stating that “dissemination of
information relating to alleged governmental misconduct” is “speech which
has traditionally been recognized as lying at the core of the First
Amendment.”).

    The First Amendment protects Appellant’s right to criticize public
officials such as the Officer. “The freedom of individuals verbally to oppose
or challenge police action without thereby risking arrest is one of the
principal characteristics by which we distinguish a free nation from a
police state.” City of Houston v. Hill, 482 U.S. 451, 462-63 (1987). The
injunction issued by the trial court is impermissibly broad and, insofar as
it states “the Respondent shall not ‘post’ on the Internet regarding the
Petitioner,” in violation of Appellant’s First Amendment right to free
speech. The injunction paints with unduly broad strokes on a very large
canvas, and goes far beyond enjoining Appellant’s cyberstalking1 of the
Officer. As such, the injunction must be reformulated and narrowly
tailored in order to more properly balance the desire to protect the Officer
from harassment and stalking with the need to safeguard Appellant’s First
Amendment rights.

                                 Conclusion

    The most efficient way to achieve the aforementioned balance is by
striking the provision in the injunction which unduly interferes with
Appellant’s freedom of speech. On remand, to the extent that the trial

1 “‘Cyberstalk’ means to engage in a course of conduct to communicate, or to
cause to be communicated, words, images, or language by or through the use of
electronic mail or electronic communication, directed at a specific person,
causing substantial emotional distress to that person and serving no legitimate
purpose.” § 748.048(1)(d), Fla. Stat. (2015).

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court decides to retain some level of restriction on Appellant’s internet
postings, it must narrow the scope of the injunction to those
communications directed to the Officer with respect to “purely private
matters” causing “substantial emotional distress” to the Officer or his
family and “serving no legitimate purpose.”

   Affirmed in part, reversed in part.

CIKLIN, C.J., and MAY, J., concur.

                            *            *   *

   Not final until disposition of timely filed motion for rehearing.




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