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Florida Appeals Court Reverses Injunction for Libel and Defamation as Being a Prior Restraint on Defendant’s Constitutional Right Free Speech

A broken romantic relationship devolved into a pattern of harassment, email hacking, offensive letters, naked photographs sent to third parties from the plaintiff’s email contact list, creation of a website, use of plaintiff’s name for multiple purposes, efforts by defendant to pre-sell a tell-all book, and posting of allegedly defamatory statements about plaintiff. The lower court issued a preliminary injunction prohibiting Vrasic “[f]rom using the name or likeness of Leibel for commercial purposes”; “[f]rom using the words ‘Lorne’ together with ‘Leibel’ for any commercial purpose”; and “[f]rom publishing, selling, licensing, or leasing, or offering to publish, sell, license, or lease” Vrasic’s book “as previously published,” allowing Vrasic to publish a work only “so long as the work does not use the words ‘Lorne’ and/or ‘Leibel,’ alone or in any combination.”  The Appeals Court reversed the lower court’s ruling and mainly dissolved the injunction as violating Vrasic’s right of freedom of speech under the First Amendment.  Vrasic v. Leibel, case no. 4D12-1289 (4th DCA, Jan. 9, 2013)(available here).

Florida courts have long held that temporary injunctive relief is not available to prohibit the making of defamatory or libelous statements because there is an adequate remedy at law for libelous or defamatory statements, namely, an action for damages.  P. 2, citing Animal Rights Found. of Fla., Inc. v. Siegel, 867 So.2d 451, 454 (Fla. 5th DCA 2004); and Murphy v. Daytona Beach Humane Soc’y, Inc., 176 So.2d 922, 924 (Fla. 1st DCA 1965).

“Second, a temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns. See Moore v. City Dry Cleaners & Laundry, 41 So.2d 865, 873 (Fla.1949) (recognizing First Amendment concerns triggered by temporary injunction); Murphy, 176 So.2d at 924 (same); see also Post–Newsweek Stations Orlando, Inc. v. Guetzloe, 968 So.2d 608, 610 (Fla. 5th DCA 2007) (recognizing temporary injunction forbidding speech constitutes a prior restraint) (citing Alexander v. United States, 509 U.S. 544, 550 (1993)). ‘[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). And, protection against prior restraints on speech extends to both false statements and to those from which a commercial gain is derived. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 761 (1976) ( ‘[S]peech does not lose its First Amendment protection because money is spent to project it· Speech likewise is protected even though it is carried in a form that is ‘sold’ for profit.’) (citations omitted); ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915, 924 (6th Cir.2003) (same); Town of Lantana v. Pelczynski, 290 So.2d 566, 569 (Fla. 4th DCA) (‘Freedom from prior restraint upon speech and press extends to false, as well as true statements.’) (citing Patterson v. Colorado, 205 U.S. 454, 462 (1907)), aff’d, 303 So.2d 326 (Fla.1974). ‘[A] free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.’ Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975).”  P. 2.

The Appeals court rejected plaintiff’s arguments that defendant engaged in tortious interference or a claim of specialized harm per Zimmerman v. D.C.A. at Welleby, Inc., 505 So.2d 1371 (Fla. 4th DCA 1987) and Murtagh v. Hurley, 40 So.3d 62 (Fla. 2d DCA), review denied, 51 So.3d 1155 (Fla.2010).

“The instant case involves neither a claim for tortious interference with a business relationship nor a claim of specialized harm. Indeed, in issuing the temporary injunction, the lower court expressly found that while Leibel had suffered embarrassment and emotional distress—the same harm suffered by all who are the subjects of defamatory statements—there was no evidence that he had been ‘shunned by society’ or had suffered any business or financial losses. We thus decline to extend Zimmerman and Murtagh to uphold the temporary injunction entered in this case.”  P. 3.

Therefore, Leibel’s case against his former lover Vrasic moves forward to trial leaving in place a “no contact” injunction but without the unconstitutional prior restraint of speech, confirming the age old adage “hell hath no fury like a woman scorned,” or, as penned by William Congreve in his poem “The Mourning Bride” (1697): “Heaven has no rage like love to hatred turned, Nor hell a fury like a woman scorned.”

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