        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                         DEREK WARREN LOGUE,
                               Appellant,

                                      v.

                        LAUREN FRANCES BOOK,
                               Appellee.

                               No. 4D18-1112

                             [August 14, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael G. Kaplan, Judge; L.T. Case No. DVCE17-5746.

   Gary S. Edinger of Benjamin, Aaronson, Edinger & Patanzo, P.A.,
Gainesville and James S. Benjamin of Benjamin, Aaronson, Edinger &
Patanzo, P.A., Fort Lauderdale, for appellant.

   J. David Bogenschutz and Jaclyn E. Broudy of J. David Bogenschutz &
Associates, P.A., Fort Lauderdale, for appellee.

PER CURIAM.

    The appellant appeals a final injunction for protection against stalking.
He argues, among other things, that the trial court erred in entering the
injunction because the appellee failed to prove the statutory requirements
for an injunction and because the injunction is a prior restraint on his free
speech. We agree in part and reverse.

    The appellee is a public advocate for child abuse victims and promotes
strict policies related to sex offenders. The appellant is an outspoken
opponent of sex offender laws. 1 The appellee filed for an injunction
alleging the appellant was harassing and cyberstalking her. The trial court
held a hearing and took testimony from the parties and witnesses, after
which the court entered the injunction. The injunction is now appealed.



1In 2001, an Alabama court convicted the appellant of improper relations with a
minor.
   “A trial court has broad discretion to grant an injunction, and we review
an order imposing a permanent injunction for a clear abuse of that
discretion.” Pickett v. Copeland, 236 So. 3d 1142, 1143-44 (Fla. 1st DCA
2018).

   In support of her request for an injunction, the appellee alleged three
instances of offending conduct: (1) the appellant’s protest at the end of a
children’s march in Tallahassee; (2) his appearance and conduct at a New
York film festival; and (3) his social media postings on his website, blog,
and other social media platforms.

   At the injunction hearing, the appellee testified about these three
instances. She expressed her fear of the appellant and testified to her
contact with law enforcement to ensure her safety and that of her young
children.

The First Instance – The Tallahassee Protest

    Testimony revealed the appellant protested, and encouraged others to
join his protest, against the children’s march in Tallahassee. He stood at
the side of the road, across the street from the State Capitol, holding a
three-by-three-foot handwritten sign protesting the appellee’s advocacy of
sex offender registration laws. His protest included a diorama of a
homeless camp and a commode chair bearing the title, “King Ron’s
Throne.” 2 Law enforcement had been notified of the protest in advance,
and there were no untoward incidents reported regarding appellant’s
conduct.

The Second Instance – The Film Festival

   The appellee was scheduled to attend a film festival in New York for the
screening of a documentary about sex offenders in which both she and the
appellant appeared. She knew the appellant would attend the film festival
and arranged for security to be in place. The appellant sat three rows
behind her during the documentary.

   When the documentary concluded, the appellee walked to the front of
the theater to take questions. When the appellant took the microphone,
he asked the appellee: “how can you sit there and talk about how people
on the registry don’t deserve a second chance when your father . . . is a
convicted criminal and he got a second chance?” A law enforcement officer
in attendance testified that the appellant asked the question in a loud,

2   A reference to the appellee’s father.

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aggressive manner and pointed his finger at the appellee as he asked it.
However, other witnesses also said the appellant never left his seat in the
theatre before he asked this question, nor did he attempt to approach the
appellee at any time.

   The appellee responded. She was then immediately escorted away from
the stage by security, and the microphone was taken from the appellant.

The Third Instance – The Website and Social Media

   Testimony and evidence established the appellant maintained a website
and other profiles on social media platforms professing his opposition to
sex offender legislation. The appellant posted the appellee’s home address
and pictures of her home on his website. On his other social media
platforms, the appellant also posted a video of a song containing an
obscene title and lyrics, as well as a cartoon depicting a tombstone with
an obscene reference to the appellee. 3 He “tweeted” that the song perfectly
depicted the appellee.        However, the appellant neither directly
communicated with the appellee about these posts, nor sent them to her
or any of her associates by email, text, or otherwise.

Other Testimony at the Hearing

   Law enforcement testified that it viewed the appellant as a credible
threat to the appellee and described steps undertaken to ensure her safety.
The FBI investigated the appellant while local and state law enforcement
provided security for the appellee.       The investigation revealed the
appellant’s Alabama conviction and a domestic violence injunction.

   Although he did not evaluate the appellant, a psychologist testified,
over the appellant’s objection, to the factors used to assess risk.

      So if you have all those factors together, someone with an
      agenda, somebody who affiliates with others with that same
      agenda, somebody who increases their approach, somebody
      who’s angry or has angry outbursts, somebody who
      announces their intentions in terms of what they’re going to
      do, all of those things together can significantly increase an
      individual’s risk potential.



3A secretary for the appellee’s father also testified to an anonymous phone
message she received indicating that the appellee and her father were in danger.

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   The trial court granted the petition and issued the injunction. The
court ordered the appellant to have no contact with the appellee directly,
through a third party or:

      anyone connected with [appellee’s] employment or school to
      inquire about [appellee] or to send any messages to [appellee].
      The [appellant] shall not publish any statement threatening
      the [appellee]. It also ordered that [appellant] could not go to,
      in, or within 500 feet of the [appellee]’s residence or place of
      employment; 100 feet of the [appellee]’s vehicle; or 1,000 feet
      of the [appellee].

   On appeal, the appellant argues the trial court erred in issuing the
injunction for three statutorily-required reasons. First, he argues his
actions serve a legitimate purpose in advocating against restrictive
legislation adversely affecting sex offenders. Second, he claims that his
social media activities do not constitute “a course of conduct directed at a
specific person” as required by section 784.0485, Florida Statutes (2016).
And third, the appellant asserts that the appellee’s subjective fear does not
satisfy the objective “reasonable person” standard required by the statute.

    The appellee claims that: the appellant’s actions are threats that serve
no legitimate purpose; the appellant’s actions were “directed” at her; his
postings threaten her safety; her fear is reasonable because the appellant
is a convicted child molester and has had a domestic violence injunction
previously issued against him; his actions have placed her and her
children in fear for their safety by advertising her home address; and, the
trial court properly entered the injunction.

   “Section 784.0485 . . . allows an injunction against stalking, including
cyberstalking.” David v. Textor, 189 So. 3d 871, 874 (Fla. 4th DCA 2016).
“A person who willfully, maliciously, and repeatedly follows, harasses, or
cyberstalks another person commits the offense of stalking . . . .” §
784.048(2), Fla. Stat. (2016).

      “Harass,” in turn, “means to engage in a course of conduct
      directed at a specific person which causes substantial
      emotional distress to that person and serves no legitimate
      purpose.” . . . [T]o be entitled to an injunction for stalking,
      the petitioner must allege and prove two separate instances of
      stalking. “Each incident of stalking must be proven by
      competent, substantial evidence to support an injunction
      against stalking.” When considering the sufficiency of the
      evidence, “[c]ourts apply a reasonable person standard, not a

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      subjective standard, to determine whether an incident causes
      substantial emotional distress.”

David v. Schack, 192 So. 3d 625, 627-28 (Fla. 4th DCA 2016) (citations
omitted).

   A. “Conduct That Serves No Legitimate Purpose”

    The appellant’s Tallahassee protest was by all accounts peaceful—even
if unpleasant in its scope and message. Each party is a vocal advocate for
opposite positions on sex offender laws. This is an issue currently debated
within what Justice Oliver Wendell Holmes once described as the “free
trade in ideas.” Abrams v. U.S., 250 U.S. 616, 630 (1919) (Holmes, J.,
dissenting). True, one side of this debate has far greater public support
than the other, but that does not make the appellant’s advocacy
illegitimate.

   As John Stuart Mill wrote, “even if the world is in the right, it is always
probable that dissentients have something worth hearing to say for
themselves, and that truth would lose something by their silence.” JOHN
STUART MILL, ON LIBERTY (1859), reprinted in ON LIBERTY AND OTHER ESSAYS
54 (John Gray ed., 1998). In short, the appellant’s protest served a
legitimate purpose even as objectionable as it may be.

   B. “A Course of Conduct Directed at a Specific Person”

   There is no doubt that the appellant’s posts were aimed at the appellee.
However, our court and the Second and Third Districts have interpreted
“a course of conduct directed at a specific person” to exempt social media
messages from qualifying as the type of conduct covered by section
784.0485, Florida Statutes. See Textor, 189 So. 3d at 875; Horowitz v.
Horowitz, 160 So. 3d 530, 531 (Fla. 2d DCA 2015) (reversing injunction
because posts were not directed at a specific person); Chevaldina v.
R.K./FL Mgmt., Inc., 133 So. 3d 1086, 1092 (Fla. 3d DCA 2014) (reversing
injunction against cyberstalking for internet posts).

   In Horowitz, the trial court entered an injunction for protection against
domestic violence to protect an estranged wife from her husband. 160 So.
3d at 530–31. She alleged the husband posted the lyrics to a song she
had recently listened to in the privacy of her home. Id. at 531. The second
post contained private messages between the wife and a third party via her
personal Facebook account. Id. She alleged these posts made her fearful
that the husband “either ‘hacked’ her computer or was somehow spying
on her[.]” Id.

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   The Second District held the Facebook posts did not meet the statutory
definition of cyberstalking because the posts were “not directed at a
specific person.” Id. “Unlike email communication, . . . posts to one’s own
Facebook page are not directed at a specific person but are instead posted
for all of the user’s Facebook ‘friends’ to see, depending on the user’s
privacy settings.” Id. The appellant’s social media postings similarly failed
to meet the statutory definition of cyberstalking.

   The Third District has aptly recognized that:

      [a]ngry social media postings are now common. Jilted lovers,
      jilted tenants, and attention-seeking bloggers spew their anger
      into fiber-optic cables and cyberspace. But analytically, and
      legally, these rants are essentially the electronic successors of
      the pre-blog, solo complainant holding a poster on a public
      sidewalk in front of an auto dealer that proclaimed, “DON’T
      BUY HERE! ONLY LEMONS FROM THESE CROOKS!”

Chevaldina, 133 So. 3d at 1092.

    Here, not only were the posts not directly transmitted to the appellee,
but the photo of her home and her street address were publicly-accessible
in relation to the political action committee she ran at the same residence.
Although the posts understandably caused the appellee concern, they
were not “directed at a specific person” as defined by caselaw. See Textor,
189 So. 3d at 875.

    The song and video, although vulgar and distasteful, were posted on
various social media platforms and were not sent directly to the appellee
in any form. “[W]here comments are made on an electronic medium to be
read by others, they cannot be said to be directed to a particular person.”
Id.

   The cartoon was also not sent directly or otherwise to the appellee, but
appeared on the appellant’s social media accounts. While the cartoon was
an intense expression of ill-will toward the appellee, it did not satisfy the
statute’s requirement that it be directed to a specific person. See id.

   C. The Objective Reasonable Person Standard

   The appellee pleaded and proved that she was in fear of the appellant
due to his actions, but her subjective fear cannot be the basis for the
injunction’s issuance. “Courts apply a reasonable person standard, not a

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subjective standard, to determine whether an incident causes substantial
emotional distress.” Schack, 192 So. 3d at 628 (citations omitted).
However, we need not make this determination because the Tallahassee
protest, the appellant’s attendance at the film festival, and the social media
posts did not satisfy the statute’s requirements to support the injunction.

    D. Conclusion

   We live in times where violence occurs all too frequently and an
ordinary day may turn into a horrific tragedy. So, it is necessary for courts
to be vigilant in reviewing petitions such as the one filed in this case.
Notwithstanding that vigilance, courts must also adhere to the
Constitution and the laws enacted by our legislature.

    As the U.S. Supreme Court has stated:

      [O]ne of the costs of the First Amendment is that it protects
      the speech we detest as well as the speech we embrace.
      Though few might find respondent’s statements anything but
      contemptible, his right to make those statements is protected
      by the Constitution’s guarantee of freedom of speech and
      expression.

U.S. v. Alvarez, 567 U.S. 709, 729–30 (2012).

   Florida case law has mandated that threats via social media be directed
to the individual—not by content, but by delivery—to fall within the
purview of section 784.0485. See Textor, 189 So. 3d at 875. The First
Amendment guarantees freedom of speech and expression, even if
distasteful and vulgar. Although the appellant’s position may be socially
abhorrent, he has a First Amendment right to express his views. While we
understand and appreciate the appellee’s fear, the First Amendment
protects the appellant’s despicable speech and his right to make it. For
this reason, we must reverse the injunction. 4



4 The appellant also argues the injunction was a prior restraint on his free speech.
We need not reach this issue because it is moot due to our reversal of the
injunction. We do acknowledge the unique issue raised by the distance from
which the appellant was ordered to stay away from the appellee’s place of
employment. Here, that employment includes Florida’s Capitol Building, which
effectively denied him access to a key means of political and constitutional
expression—the ability to petition Florida’s government officials. See Frandsen
v. Dep’t of Envtl. Prot., 829 So. 2d 267, 269 (Fla. 1st DCA 2002).

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   Reversed.

MAY and KLINGENSMITH, JJ., concur.
MAY, J., concurs specially with opinion.
CIKLIN, J., dissents without opinion.

MAY, J., specially concurring.

   I concur with the majority because Florida’s statutory scheme and case
law dictates the outcome. I write to express my concern that in the day
and age in which we live social media postings, such as those involved
here, have led people to lash out and wreak havoc on our children,
families, friends, and communities.

   Recently, a man was arrested for sending pipe bombs to a number of
legislators allegedly as a result of social media encouragement. Indeed,
international terrorists have been radicalized through social media. And,
our elections have now fallen prey to manipulated social media.

   Perhaps thought should be given to whether the law should provide
some protection for those at which social media directs its attention, and
others are motivated to act; such as, the circumstances pleaded and
proven by the appellee in this case.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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