       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                         ALKIVIADES A. DAVID,
                               Appellant,

                                     v.

                             JOHN TEXTOR,
                                Appellee.

                              No. 4D14-4352

                            [January 6, 2016]

   Appeal of a non-final order from the Circuit Court for the Nineteenth
Judicial Circuit, Martin County; F. Shields McManus, Judge; L.T. Case
No. 14-267 DV.

   Ryan G. Baker of Baker Marquart LLP, Los Angeles, California, and
Gary S. Betensky, Manuel Farach, and Leslie A. Metz of Richman Greer,
P.A., West Palm Beach, for appellant.

  Alan M. Burger and Mary F. April of McDonald Hopkins LLC, West Palm
Beach, for appellee.

   Nancy G. Abudu, Miami, and Benjamin James Stevenson, Pensacola,
for Amici Curiae American Civil Liberties Union of Florida and Legal
Scholars.

WARNER, J.

    Alkiviades A. David appeals a non-final order denying his motion to
dissolve an ex parte injunction prohibiting cyberstalking, obtained by the
appellee, John Textor. David, a non-resident, contends that the conduct
alleged in Textor’s ex parte petition for the injunction does not constitute
cyberstalking, and the injunction violates the First Amendment. We agree
and reverse.

   David and Textor both have companies which produce holograms used
in the music industry. In May 2014, shortly before the Billboard Music
Awards show, it was announced that Textor’s company, Pulse
Entertainment, would show a Michael Jackson hologram performance.
Immediately thereafter, David’s company, Hologram USA, Inc., and others
filed suit for patent infringement against Pulse in the U.S. District Court
in Nevada, a suit which continues. Pulse countered by filing a business
tort suit against David in California in June 2014, which eventually was
dismissed.

    In July 2014, Textor filed an ex parte petition for protection pursuant
to sections 784.046 and 784.0485, Florida Statutes (2014), which concern
cyberstalking. The petition alleged that David was a California resident.
Textor alleged that there were no pending suits between the parties, not
mentioning the substantial litigation between their companies.

    The alleged acts of cyberstalking were (1) a May 2014 text from David
to Textor, demanding that Textor give credit to David’s company at the
Billboard Awards show for the hologram, for which David would drop his
patent infringement suit; otherwise, he threatened to increase damages in
that suit and stated, “You will be ruined I promise you”; (2) an e-mail from
David to business associates (other than Textor) that he had more
information about Textor that would be released soon, but not specifying
what that information was; (3) an online article from July 2014 on
Entrepreneur.com, in which David was quoted as saying that he “would
have killed [Textor] if he could”; and (4) articles about Textor that David
posted and reposted in various online outlets.

   Textor alleges that this is cyberstalking. He alleges fear of violence from
David and therefore requested an ex parte injunction prohibiting David
from communicating with him or posting anything about him on any
websites, as well as ordering David to remove any material posted
regarding Textor from his website.

    The trial court ordered a hearing on the petition. Before the hearing,
Textor amended the petition to allege that David had written another e-
mail regarding settlement of the lawsuit in which he threatened to expose
photographs, lawsuits by disgruntled employees of Textor, and illicit
money transfers if Textor did not end the lawsuit by his company. At the
end of the e-mail, David wrote, “I hope for you and your family’s sake you
are man enough to put an end to this now.” David also “tagged” Textor’s
Instagram account with a photo of Hitler and a caption, “Sorry if I have
offended any #neonazis.” This tagging allowed any followers of Textor to
see the Hitler photo and the caption. Attached to the petition were the e-
mails, the Hitler photo, and tweets sent by David referring to various suits
involving Textor, including the State of Florida’s attempt to recoup the
cash it had provided Textor’s Florida company, Digital Domain.



                                      2
  The trial court granted the amended petition, prohibiting David from
communicating with Textor or posting any information about him online,
and ordering that he remove any materials he already had posted from the
websites.

    David then made a limited appearance, without waiving his objection
to jurisdiction, and moved to dissolve the ex parte injunction. After a non-
evidentiary hearing, the court denied the motion to dissolve and amended
its order to prohibit David from communicating with Textor either through
electronic means, in person, or through third parties. The amended order
also provided:

      Respondent David shall immediately cease and desist from
      sending any text messages, e[-]mails, posting any tweets
      (including the re-tweeting or forwarding), posting any images
      or other forms of communication directed at John Textor
      without a legitimate purpose. Threats or warnings of physical
      or emotional harm or attempts to extort Textor or any entity
      associated with Textor by Respondent David, personally or
      through his agents, directed to John Textor, directly or by
      other means, are prohibited.

From this order, David appeals.

   David claims that none of the allegations in the petition constitute
cyberstalking, but are merely heated rhetoric over a business dispute.
Further, he claims that the injunction constitutes a prior restraint on
speech, which violates the First Amendment. Whether the conduct alleged
constitutes statutorily-defined cyberstalking also resolves the question of
whether the petition made sufficient allegations to bring David within the
jurisdiction of the court. Because we conclude that the conduct alleged in
the petition is not cyberstalking and the injunction violates the First
Amendment, we reverse and do not further address the issue of
jurisdiction.

   Section 784.0485, Florida Statutes (2014), allows an injunction against
stalking, including cyberstalking. The statute must be read in conjunction
with section 784.046(1)(b), Florida Statutes (2014), which requires at least
two incidences of stalking to obtain an injunction. See Wyandt v. Voccio,
148 So. 3d 543, 544 (Fla. 2d DCA 2014). Additionally, section 784.048
defines stalking, including cyberstalking:




                                     3
      (a) “Harass” 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.

      (b) “Course of conduct” means a pattern of conduct
          composed of a series of acts over a period of time,
          however short, which evidences a continuity of purpose.
          The term does not include constitutionally protected
          activity such as picketing or other organized protests.

                                    ....

      (d) “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.

§ 784.048(1), Fla. Stat. (2014) (emphasis added).

    Whether a communication causes substantial emotional distress
should be narrowly construed and is governed by the reasonable person
standard. See Bouters v. State, 659 So. 2d 235, 238 (Fla. 1995); Goudy v.
Duquette, 112 So. 3d 716, 717 (Fla. 2d DCA 2013). In contrast, whether
a communication serves a legitimate purpose is broadly construed and will
cover a wide variety of conduct. See, e.g., Goudy, 112 So. 3d at 717
(finding that a parent calling about his daughter’s dance team
participation serves a legitimate purpose); Alter v. Paquette, 98 So. 3d 218,
220 (Fla. 2d DCA 2012) (finding that communications demanding payment
of loan serve a legitimate purpose); Touhey v. Seda, 133 So. 3d 1203, 1205
(Fla. 2d DCA 2014) (finding that communications regarding disputes over
the dissolution of a business serve a legitimate purpose). Further, where
comments are made on an electronic medium to be read by others, they
cannot be said to be directed to a particular person. See Chevaldina v.
R.K./FL Mgmt., Inc., 133 So. 3d 1086, 1091-92 (Fla. 3d DCA 2014).

    In this case, Textor alleged that two communications came directly from
David to him, both of which were demands that Textor drop his lawsuit.
In neither of them did David make any threat to Textor’s safety. From the
full e-mail, David’s threats that Textor would be “sorry” if he didn’t settle
must be taken in the context of the lawsuit and its potential cost to Textor.
Because of the existence of the various lawsuits and the heated
controversy over the hologram patents, these e-mails had a legitimate

                                     4
purpose in trying to get Textor to drop what David considered a spurious
lawsuit. Moreover, nothing in the e-mails should have caused substantial
emotional distress to Textor, himself a sophisticated businessman.
Indeed, that they did not is reflected in Textor’s refusal to settle or adhere
to their terms.

   The postings online are also not communications which would cause
substantial emotional distress. Most of them are simply retweets of
articles or headlines involving Textor. That they may be embarrassing to
Textor is not at all the same as causing him substantial emotional distress
sufficient to obtain an injunction. Moreover, the postings are more like
the blog posts in Chevaldina, which the Third District found were not
directed at a specific person, as they were simply generally criticizing the
business involved to the blogging public. 133 So. 3d at 1092.

   Even the alleged physical threat made by David in an online interview,
that David would have killed Textor if he could have, would not cause a
reasonable person substantial emotional distress. In the online article the
author stated that “David joked” when stating that he would have killed
Textor. Spoken to a journalist for publication, it hardly amounts to an
actual and credible threat of violence to Textor.

   In sum, none of the allegations in Textor’s petition show acts
constituting cyberstalking, in that a reasonable person1 would not suffer
substantial emotional distress over them. Those communications made
directly to Textor served a legitimate purpose.

    An injunction in this case would also violate First Amendment
principles. “[A] temporary injunction directed to speech is a classic
example of prior restraint on speech triggering First Amendment
concerns.” Vrasic v. Leibel, 106 So. 3d 485, 486 (Fla. 4th DCA 2013). An
injunction may not be directed to prevent defamatory speech. Id. at 487;
Chevaldina, 133 So. 3d at 1090. “‘[P]rior restraints on speech and
publication are the most serious and the least tolerable infringement on
First Amendment rights.’” Concerned Citizens for Judicial Fairness, Inc. v.
Yacucci, 162 So. 3d 68, 73 (Fla. 4th DCA 2014) (quoting Neb. Press Ass’n
v. Stuart, 427 U.S. 539, 559 (1976)). Section 784.048 itself recognizes the
First Amendment rights of individuals by concluding that a “course of
conduct” for purposes of the statute does not include protected speech.


1The reasonable person standard is applied to a person in the position of the
party, in this case an adult businessman. See Pallas v. State, 656 So. 2d 1358,
1363 (Fla. 3d DCA 1994). Thus, the standard is case specific.

                                      5
§ 784.048(1)(b), Fla. Stat. (2014). This includes speech that may be
offensive or vituperative. See Watts v. U.S., 394 U.S. 705, 708 (1969).

   Here, the online postings simply provide information, gleaned from
other sources, regarding Textor and the many lawsuits against him. The
injunction prevents not only communications to Textor, but also
communications about Textor. Such prohibition by prior restraint violates
the Constitution. If David’s communications about Textor are defamatory,
then Textor can sue David for damages.

   For the foregoing reasons, we reverse the temporary injunction and
remand with directions to dismiss the petition.

FORST and KLINGENSMITH, JJ., concur.

                          *         *        *

   Not final until disposition of timely filed motion for rehearing.




                                   6
