        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT
                                 July Term 2014

        CONCERNED CITIZENS FOR JUDICIAL FAIRNESS, INC.,
                          Appellant,

                                         v.

                             PHILIP J. YACUCCI,
                                  Appellee.

                                 No. 4D14-2971

                              [September 3, 2014]

  Appeal of a non-final order from the Circuit Court for the Nineteenth
Judicial Circuit, St. Lucie County; George A. Shahood, Senior Judge; L.T.
Case No. 2014CA001711.

    Louis C. Arslanian, Plantation, for appellant.

    Ashley N. Minton of Minton Law, P.A., Fort Pierce, for appellee.

GROSS, J.

   This case involves a temporary injunction issued during a political
campaign that limits what a political organization may say about a
candidate. For multiple reasons, not the least of which is that the
injunction is a prior restraint on speech in violation of the First
Amendment, we entered an order dated August 22, 2014, reversing the
temporary injunction in its entirety. This is the opinion that explains that
ruling.

   This case arises out of a contested race for county court judge in St.
Lucie County. Philip Yacucci is the incumbent and Stephen Smith is the
challenger. The election was on August 26, 2014. Concerned Citizens for
Judicial Fairness, Inc. is an electioneering communications organization.1

1Section 106.011(9), Florida Statutes (2014), defines an “[e]lectioneering
communications organization” as:

       [A]ny group, other than a political party, affiliated party committee,
       or political committee, whose election-related activities are limited
   Yacucci filed suit against Smith and Citizens for defamation, invasion
of privacy, and intentional infliction of emotional distress. The complaint
sought damages and injunctive relief.

   The salient facts alleged in the complaint can be summarized as follows.
Citizens and Smith are linked because the only contributors to Citizens
are affiliated with the law firm that employs Smith. There is a website
pertaining to this election. The complaint generally alleges that Smith and
Citizens are responsible for what is posted on the website without
explaining how or why.

   The home page of the website says this:

   Palm Beach Post or State Attorney Investigation, Yacucci Accused of:

               *Battery on his wife

               *Aggravated Assault with a Firearm

               *Unlawful Compensation

               *Failure to pay child support

   The website publishes a series of headlines above the first sentence of
newspaper stories. Clicking on a headline takes the reader to what
purports to be the full newspaper story. Each story is identified as being
published in The Palm Beach Post and by the date. Eight of the stories
were published from 1992-93; one story was published in 2007. The
reporters who wrote the stories are identified.

   The website contains links to “three commercially produced video
advertisements.” The complaint describes the videos as follows:

      The first video alleged that a State Attorney investigation
      revealed that a witness testified that the Plaintiff was in a car
      with his children when he pointed a gun at a man and said
      “I’m going to blow your head off.” The video further stated that
      the same witness said the Plaintiff pushed his wife and said
      he was going to kill her.


      to making expenditures for electioneering communications or
      accepting contributions for the purpose of making electioneering
      communications . . . .

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      The second video alleged that the Plaintiff was accused of
      battery on his wife, aggravated assault with a firearm, and
      unlawful compensation. The video goes on to discuss the
      Plaintiff’s current salary and the alleged foreclosure of his
      home. Finally the video discusses the allegation that the
      Plaintiff was threatened with 20 days in jail for failure to pay
      child support.

      The third video again discussed the alleged foreclosure of the
      Plaintiff’s home and the threat to the Plaintiff of 20 days in jail
      for failure to pay child support.

   The complaint alleges that an “individual” identified as Irene Leroux
emailed members of the Florida Bar, “en masse,” a link to the website.
Based on “a diligent investigation,” Yacucci “became aware” that Citizens
“purchased what looks to be large blocks of commercial time, presumably
to air the videos located on the website over broadcast television.”

    Yacucci generally alleges that the statements contained in the
newspaper stories were false. The complaint sets forth reasons why
Yacucci believes the allegations are misleading. For example, attached as
an exhibit to the complaint is a Close-Out Memo prepared on December
29, 1991, by a state attorney appointed to investigate certain criminal
allegations. The Memo explains in detail the reasons that no criminal
charges were filed against either Yacucci or his former wife or his former
wife’s friend.

    Yacucci “verif[ied] and approve[d]” the “contents” of the complaint. We
note that such a verification fails to comply with Florida Rule of Civil
Procedure 1.110(b) which provides that “[w]hen verification of a document
is required, the document filed shall include an oath, affirmation, or the
following statement”:

      Under penalty of perjury, I declare that I have read the
      foregoing, and the facts alleged therein are true and correct to
      the best of my knowledge and belief.

   Count V of the complaint sought a temporary injunction. There was a
temporary injunction hearing at which the attorneys for all sides appeared.
No witnesses were called. No exhibits were introduced in evidence. Over
objection, Yacucci’s attorney argued as if the allegations in the complaint
were established facts. She complained about the website’s “many false
and misleading claims” and provided unsworn testimony about the true
facts in the case. She said that an FDLE investigation “pretty much

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refuted” certain criminal charges and that no charges were filed “because
there wasn’t enough evidence on them.”

   On August 8, 2014, the circuit court declined to enter a temporary
injunction against Smith; the court did, however, enjoin Citizens

      from operating [the website] from disseminating any material
      contained therein in the form of websites, direct mailers,
      television commercials, radio commercials and/or any other
      format for dissemination, or any other information about the
      Plaintiff.

The court set a $10,000 injunction bond.

   On August 13, 2014, this Court stayed the operation of the temporary
injunction.

   As an extraordinary remedy, a temporary injunction should be
sparingly granted and only after the moving party has alleged and proved
facts entitling it to relief. See Liberty Fin. Mtg. Corp. v. Clampitt, 667 So.
2d 880, 881 (Fla. 2d DCA 1996); Hiles v. Auto Bahn Fed’n, Inc., 498 So. 2d
997, 998 (Fla. 4th DCA 1986). At a contested hearing, the party opposing
an injunction has the opportunity to cross examine witnesses and
challenge the allegations of the complaint. Only where a temporary
injunction is sought without notice is the evidence in support of the
injunction limited to affidavits or a verified pleading. See Fla. R. Civ. P.
1.610(a)(2).

    The party seeking the injunction must prove: (1) it will suffer irreparable
harm unless the injunction is entered, (2) there is no adequate remedy at
law, (3) there is a substantial likelihood that the party will succeed on the
merits, and (4) that considerations of the public interest support the entry
of the injunction. See Masters Freight, Inc. v. Servco, Inc., 915 So. 2d 666,
666 (Fla. 2d DCA 2005); Cordis Corp. v. Prooslin, 482 So. 2d 486, 489-90
(Fla. 3d DCA 1986). The party seeking the injunction “has the burden of
providing competent, substantial evidence” to satisfy each of these
elements. SunTrust Banks, Inc. v. Cauthon & McGuigan, PLC, 78 So. 3d
709, 711 (Fla. 1st DCA 2012). A trial court’s order granting a temporary
injunction must contain “[c]lear, definite, and unequivocally sufficient
factual findings [to] support each of the four conclusions necessary to
justify entry of” the injunction. Liberty Fin., 667 So. 2d at 881 (quoting
City of Jacksonville v. Naegele Outdoor Advertising Co., 634 So. 2d 750,
754 (Fla. 1st DCA 1994), approved, 659 So. 2d 1046 (Fla. 1995)).


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   For numerous reasons, the temporary injunction cannot stand.

   First, Yacucci offered no evidence to support the injunction, only the
unsworn argument of counsel. An attorney’s unsworn argument does not
constitute evidence. See, e.g., Rowe v. Rodriguez-Schmidt, 89 So. 3d 1101,
1104 (Fla. 2d DCA 2012).

    Second, the temporary injunction contains no factual findings
whatsoever and lacks the necessary precision about what is being
enjoined. Florida Rule of Civil Procedure 1.610(c) states that every
temporary injunction “shall specify the reasons for entry [and] shall
describe in reasonable detail the act or acts restrained without reference
to a pleading or another document.” Contrary to the rule, the court’s order
refers generally to the website, so the injunction is overly broad. See
Chevaldina v. R.K./FL Mgmt., Inc., 133 So. 3d 1086, 1091 (Fla. 3d DCA
2014). The order lacks the detail to support “each of the four conclusions
necessary to justify entry of” the injunction. Liberty Fin., 667 So. 2d at
881 (quoting City of Jacksonville, 634 So. 2d at 754).

   Third, the general rule in Florida is that “temporary injunctive relief is
not available to prohibit the making of defamatory or libelous statements.”
Vrasic v. Leibel, 106 So. 3d 485, 486 (Fla. 4th DCA 2013). One reason for
this is that there is an adequate remedy at law, an action for damages. Id.
As public figures, political candidates may pursue defamation actions,
provided that they are able to prove actual malice on the part of the
defamer. See Dockery v. Fla. Democratic Party, 799 So. 2d 291, 293-94
(Fla. 2d DCA 2001); Pullum v. Johnson, 647 So. 2d 254, 257 (Fla. 1st DCA
1994); Barnes v. Horan, 841 So. 2d 472, 479-80 (Fla. 3d DCA 2002)
(involving defamation action by losing candidate for State Attorney).

    Yacucci has failed to demonstrate that this case falls within the limited
exception to the general rule for cases where “defamatory words are made
in the furtherance of the commission of another intentional tort.”
Chevaldina, 133 So. 3d at 1090; see, e.g., Murtagh v. Hurley, 40 So. 3d 62
(Fla. 2d DCA 2010) (involving tort of tortious interference with
advantageous business relationship); Zimmerman v. D.C.A. at Welleby,
Inc., 505 So. 2d 1371 (Fla. 4th DCA 1987) (same). On its face, the
complaint fails to demonstrate the conduct required for intentional
infliction of emotional distress—conduct “‘so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency, and
to be regarded as atrocious, and utterly intolerable in a civilized
community.’” Allen v. Walker, 810 So. 2d 1090, 1091 (Fla. 4th DCA 2002)
(quoting Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277, 278-79 (Fla.
1985)). The law expects a political candidate to accept republication of

                                    -5-
previous newspaper stories “as their lot. . . . [T]he first amendment
demands a hide that tough.” Ollman v. Evans, 750 F.2d 970, 1005 (D.C.
Cir. 1984) (Bork, J., concurring) (concerning a private defamation suit
against newspaper columnists for statements made during a political
controversy). Invasion of privacy is subject to the same First Amendment
considerations as defamation and provides a separate cause of action for
redress. See Post-Newsweek Stations Orlando, Inc. v. Guetzloe, 968 So. 2d
608, 610-11 (Fla. 5th DCA 2007).

    Fourth, and most importantly, the trial court’s injunction, issuing in
the last three weeks of a political campaign, is “a classic example of prior
restraint on speech triggering First Amendment concerns.” Vrasic, 106
So. 3d at 486; Chevaldina, 133 So. 3d at 1090. Such concerns make the
injunction contrary to the public interest. “[T]he First Amendment ‘has its
fullest and most urgent application’ to speech uttered during a campaign
for political office.” Eu v. San Francisco Cnty. Democratic Ctr. Comm., 489
U.S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272
(1971)).

   “[P]rior restraints on speech and publication are the most serious and
the least tolerable infringement on First Amendment rights.” Neb. Press
Ass’n v. Stuart, 427 U.S. 539, 559 (1976). To allow a temporary injunction
such as this one to stand would be to make courts into censors, deciding
what candidates can and cannot say. The political process should not be
subject to the whims of a local judge who may favor one candidate over
another. “The concept that a statement on a public issue may be
suppressed because it is believed by a court to be untrue is entirely
inconsistent with constitutional guarantees and raises the spectre of
censorship in a most pernicious form.” Wilson v. Superior Court, 532 P.2d
116, 120 (Cal. 1975).

   For these reasons, we reverse the temporary injunction in its entirety.

WARNER and MAY, JJ., concur.

                           *         *         *




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