        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                  FOURTH DISTRICT

                              JAMES THOMA,
                                Appellant,

                                        v.

                             TAMEKIA O'NEAL,
                                Appellee.

                                  No. 4D14-3459

                             [December 9, 2015]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Barbara W. Bronis, Judge; L.T. Case No. 562014DR001924.

  Roger K. Gannam, Mathew D. Staver and Horatio G. Mihet of Liberty
Counsel, Orlando, for appellant.

   No brief filed for appellee.

CONNER, J.

   Appellant, James Thoma, challenges the injunction entered against
him for allegedly stalking the Victim. Thoma argues that the trial court
erred in entering the injunction because (1) there was insufficient evidence
of a course of conduct to support a finding of stalking, and (2) the
conditions imposed by the trial court as part of the injunction were overly
broad and thus unconstitutional as a restriction on Thoma’s freedom of
speech. We affirm the trial court’s determination that there was sufficient
evidence of a course of conduct to support a finding of stalking. We agree
with Thoma that the conditions imposed by the trial court as part of the
injunction were overly broad and infringed upon his First Amendment
freedom of speech. However, the injunction has expired and that issue is
moot. Thus, we affirm the trial court and write to address the first issue.

             Factual Background and Trial Court Proceedings

   The Victim’s petition for an injunction for protection against stalking
proceeded to an evidentiary final hearing. The Victim was an employee of
an abortion clinic, and Thoma was a “sidewalk counselor” at the clinic,
which he described as, “[w]hen women come in, we offer them alternatives
to abortion” and hand out literature. As support for her petition, the
Victim testified about several encounters with Thoma as she walked from
her car into the clinic during which Thoma made derogatory comments
towards her. She also testified regarding an event where Thoma was in
his car following her as she was driving home from the abortion clinic.
After making several turns from her normal path to confirm Thoma was
indeed following her, the Victim “ended up losing” him. She also testified
about an incident a few weeks later in which she saw Thoma driving ahead
of her into the residential community where she lived and he waved at her
as she passed by him inside the community. Finally, the Victim testified
about a flyer, a copy of which was attached to the petition. The flyer
contained a picture of the Victim and stated at the top “Pray for [Victim’s
full name] [followed by Victim’s picture] At [Victim’s home address]” and
stated at the bottom “Ask [Victim’s full name] to please stop assisting the
abortionist with the killing of black babies.”1 The Victim testified, without
objection, that Thoma was seen passing the flyer out in the residential
community where the Victim lived a few weeks after he waved at her as
she passed him in her car. Shortly before Thoma was seen passing out
the flyer, the Victim had moved her residence. Nonetheless, she received
the flyer when it was forwarded to her from her old address. The one-page
flyer was introduced into evidence.

   In entering the injunction, the trial court explained on the record that
a course of conduct constituting harassment as stalking was established
by two instances: (1) the incident where the Victim saw Thoma following
her in his car after leaving work, and (2) the flyer distributed by Thoma,
which the trial court found “crosses the line” protected by the First
Amendment. After determining the two incidents established a course of
conduct showing harassment sufficient to constitute stalking, the trial
court granted the injunction. Thoma timely gave notice of appeal.

                            Appellate Analysis

   A trial court’s order granting a permanent injunction is reviewed for
competent substantial evidence. McMath v. Biernacki, 776 So. 2d 1039,
1040-41 (Fla. 1st DCA 2001). As for the portion of Thoma’s argument that
focuses on a violation of the First Amendment, appellate courts apply a de
novo standard of review to determine whether a temporary injunction
constitutes an unconstitutional prior restraint on free speech. Gawker
Media, LLC v. Bollea, 129 So. 3d 1196, 1200 (Fla. 2d DCA 2014) (citation
omitted).

1The Victim is an African-American female who worked at an abortion clinic
described in the flyer as “located in a poor, black neighborhood.”

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   Section 784.0485(1), Florida Statutes (2014), creates “a cause of action
for an injunction for protection against stalking.” § 784.0485, Fla. Stat.
(2014). “A person who willfully, maliciously, and repeatedly follows,
harasses, or cyberstalks another person commits the offense of stalking.”
§ 784.048(2), Fla. Stat. (2014). To “harass” is defined as “engag[ing] in a
course of conduct directed at a specific person which causes substantial
emotional distress to that person and serves no legitimate purpose.” §
784.048(1)(a), Fla. Stat. (2014).

   Section 784.048(1)(b), Florida Statutes (2014), defines “course of
conduct” as

      a pattern of conduct composed of a series of acts over a period
      of time, however short, which evidences a continuity of
      purpose.     The terms does not include constitutionally
      protected activity such as picketing or other organized
      protests.

From this definition, Thoma makes two arguments on appeal: (1) the
definition specifically excludes constitutionally protected activity such as
protesting, and (2) there was no evidence of a “course of conduct,” since
there was only testimony regarding one incident of alleged following, see
also Chevaldina v. R.K./FL Mgmt., Inc., 133 So. 3d 1086, 1091 (Fla. 3d
DCA 2014) (“Repeat violence is defined as two incidents of stalking or
violence.”). Both arguments are premised on the contention the flyer
Thoma developed and distributed to the Victim’s home was protected
speech. We disagree that the flyer being sent to the Victim’s home was
protected speech and agree with the trial court that sending the flyer to
the Victim’s home was an incident of harassing behavior.

   We begin with the observation that it is quite common, in trial court
injunction proceedings seeking protection from stalking, that the
petitioner is unrepresented by counsel, while the respondent is
represented. As a result, as in this case, it is all too common on appeal
that there is no answer brief on behalf of the successful petitioner
defending the injunction.

   Despite no answer brief defending the injunction, it appears, from the
transcript of the hearing, there was sufficient circumstantial evidence to
support a finding that Thoma followed the Victim home more than once in
order to obtain her residence address; but, for whatever reason, the trial




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court made findings as to only one incident of following the Victim.2 So
regarding the record of findings by the trial court, we are constrained to
review the application of law to only two, instead of three, incidents of
conduct articulated by the trial judge in finding a pattern of conduct
constituting stalking behavior by Thoma. Clearly, the trial court’s finding
regarding one incident of following the Victim as harassing behavior is
supported by substantial and competent evidence.

   We agree with Thoma that the flyer is protected speech under the First
Amendment, if one focuses on whether the flyer expresses a “true threat”
of physical or emotional harm. Using current First Amendment case law
analysis, it does not appear the flyer makes any veiled or direct threat of
harm to the Victim, or encourages others to use violence against the
Victim. But whether the flyer expresses a “true threat” is not the end of
the First Amendment analysis.

    In addition to having a picture of the Victim’s face and giving the street
address where she lives, the flyer contains racial slurs, suggesting the
Victim, who is African-American, is working for the KKK at the abortion
clinic.3 Finally, the flyer ends with: “Ask [Victim] to please stop assisting
the abortionist with the killing of black babies.”

   Although the flyer cannot be construed as a “true threat” of violence as
that concept has been defined for First Amendment analysis, we agree, as
the trial judge stated on the record, the flyer “crosses the line,” in terms of
First Amendment protection, because the mailing of the flyer to the
Victim’s home, by itself, was an attempt to force unwanted speech upon
her in the privacy of her home.4 Moreover, the flyer identifies the Victim
by name and face, gives her residence address, and encourages people to
approach her at home to deliver the message “stop engaging in abortions.”

   In Operation Rescue v. Women’s Health Center, Inc., 626 So. 2d 664
(Fla. 1993), our supreme court addressed, among other things, the issue
of whether a permanent injunction against abortion protesters which
prohibited, among other things, the protesters from picketing in front of
the homes of employees of an abortion clinic.5 Id. at 669. In upholding

2 Appellate judges only have the benefit of transcripts and not the advantage of
observing the demeanor of witnesses when testifying.
3 The “KKK” stands for “Ku Klux Klan,” a white supremacist organization.
4 For purposes of engaging in harassment, the fact the Victim had moved from

her former residence when the flyer was mailed is of no consequence.
5 In Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 774-775 (1994), the

Supreme Court reversed the three hundred foot buffer around the residences,
but upheld the right of municipalities to enact lesser distance restrictions against

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that provision of the injunction, the supreme court relied upon Frisby v.
Schultz, 487 U.S. 474 (1988), wherein the United States Supreme Court
addressed the issue of picketers demonstrating outside the home of an
abortion clinic doctor in violation of a city ordinance banning all residential
picketing. Id. at 672. Our supreme court quoted the Court:

      Although in many locations, we expect individuals simply to
      avoid speech they do not want to hear, the home is different.
      “That we are often captives outside the sanctuary of the home
      and subject to objectionable speech . . . does not mean we
      must be captives everywhere.” Instead, a special benefit of the
      privacy all citizens enjoy within their own walls, which the
      State may legislate to protect, is an ability to avoid intrusions.
      Thus, we have repeatedly held that individuals are not
      required to welcome unwanted speech into their own homes
      and that the government may protect this freedom.

Id. (quoting Frisby, 487 U.S. at 484–85) (emphasis added) (citations
omitted).

   In the context of a statute regarding postal delivery of speech, the
Supreme Court noted, in Rowan v. United States Post Office Department,
397 U.S. 728, 738 (1970), a case quoted in Frisby, “the right of every
person ‘to be let alone’ must be placed in the scales with the right of others
to communicate.” 397 U.S. at 737. The Rowan Court categorically
rejected the argument that a vendor has a First Amendment right to send
unwanted material into the home of another, saying:

      If this [statutory] prohibition operates to impede the flow of
      even valid ideas, the answer is that no one has a right to press
      even ‘good’ ideas on an unwilling recipient. That we are often
      ‘captives’ outside the sanctuary of the home and subject to
      objectionable speech and other sound does not mean we must
      be captives everywhere. The asserted right of a mailer, we
      repeat, stops at the outer boundary of every person’s domain.

Id. at 738 (internal citations omitted).

   Thus, our supreme court and the United States Supreme Court
recognizes there is no First Amendment protection for speech that intrudes
on the privacy of one’s home. See also State v. Elder, 382 So. 2d 687, 692
(Fla. 1980) (noting that our supreme court and the United States Supreme

picketing in front of a person’s home, and thus upheld the homeowner’s right to
privacy as superior to a protester’s freedom of speech.

                                      5
Court “have recognized that government may properly act in many
situations to prohibit intrusion into the privacy of the home of unwelcome
views and ideas which cannot be totally banned from the public dialogue,”
and, thus, “the privacy interest of a person may be accorded greater
protection within the sanctum of the home or other private place than it
may be accorded in the public forum”) (citations omitted).

    Because Thoma generated, mailed to the Victim, and distributed to her
neighbors the flyer, which not only conveys a message he knew the Victim
did not want to hear (and is a racial slur), but also clearly identifies the
Victim by name and face, gives the reader her home address, and then
invites the reader to dissuade the Victim from assisting in abortions, we
are satisfied the flyer seeks to invade the privacy of the Victim’s home, and
the trial court properly determined the flyer was generated, mailed, and
distributed with the intent to harass the Victim. Thoma’s behavior with
reference to the flyer and his attempt to push his message on to the Victim
at her home is not protected by the First Amendment.6 Thus, we uphold
the trial court’s finding that the Victim proved a course of conduct
constituting stalking and was entitled to an injunction. Even though the
scope of the injunction’s prohibitions was too broad and constituted an
invalid prior restraint on free speech as discussed in Masden, that issue
is now moot because the injunction has expired.

    Affirmed.

WARNER, J. and LEVEY COHEN, MARDI, Associate Judge, concur.

                              *          *          *

    Not final until disposition of timely filed motion for rehearing.




6 The reasonable inference to be drawn from “At [Victim’s home address]” in the
flyer is to encourage other people to send written messages or to go to the Victim’s
home in an effort to encourage the Victim to quit working at the clinic. The fact
the flyer was distributed in the Victim’s residential community makes the attempt
to invade the Victim’s privacy more egregious, but that fact is not necessary to
find there is no First Amendment protection.

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