First Amendment privilege in Florida

2023But instead of stopping at reversal based on this sound reasoning, as it should have, see Liner v. Workers Temporary Staffing, Inc., 990 So. 2d 473, 482 (Fla. 2008) ("In Florida, it is well established that this Court should refrain from deciding the constitutional questions when the case may be resolved on other grounds."), the Fourth District proceeded to the First Amendment issue and tied the statutory phrase "words, images, or language . . . directed at a specific person" in the definition of cyberstalking found in the 2014 version of section 784.048(1)(d)1 to its constitutional analysis.

2023But instead of stopping at reversal based on this sound reasoning, as it should have, see Liner v. Workers Temporary Staffing, Inc., 990 So. 2d 473, 482 (Fla. 2008) ("In Florida, it is well established that this Court should refrain from deciding the constitutional questions when the case may be resolved on other grounds."), the Fourth District proceeded to the First Amendment issue and tied the statutory phrase "words, images, or language . . . directed at a specific person" in the definition of cyberstalking found in the 2014 version of section 784.048(1)(d)1 to its constitutional analysis.

2023The David opinion continued: 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).

2023The David opinion continued: 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).

1976I construe his opinion basically to embrace the limited or conditional *957 First Amendment privilege to confidentiality of news sources which was recognized by a majority of the Court [1] in Branzburg v. Hayes, 408 U.S. 665 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 (1972).

1976I construe his opinion basically to embrace the limited or conditional *957 First Amendment privilege to confidentiality of news sources which was recognized by a majority of the Court [1] in Branzburg v. Hayes, 408 U.S. 665 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 (1972).

2022However, as our supreme court has recognized, “a First Amendment violation does not occur any time a case requires a court to examine church law or policies.” Mammon, 193 So. 3d at 985 (citing Malicki v. Doe, 814 So. 2d 347, 357 (Fla. 2002). 2 There is case law indicating that the ecclesiastical abstention doctrine applies to hierarchical religious organizations and not congregational religious organizations, as pointed out in Judge Warner’s concurring in part and dissenting in part opinion.

2022However, as our supreme court has recognized, “a First Amendment violation does not occur any time a case requires a court to examine church law or policies.” Mammon, 193 So. 3d at 985 (citing Malicki v. Doe, 814 So. 2d 347, 357 (Fla. 2002). 2 There is case law indicating that the ecclesiastical abstention doctrine applies to hierarchical religious organizations and not congregational religious organizations, as pointed out in Judge Warner’s concurring in part and dissenting in part opinion.

2002Likewise, I agree with much of Justice Harding's well-reasoned dissents in this case and in Malicki v. Doe, 814 So.2d at 367-69 (Fla. 2002) (Harding, J., dissenting), except I would recognize the First Amendment bar exception stated in Doe v. Dorsey, 683 So.2d 614, 617 (Fla. 5th DCA 1996) (indicating that tort action would not be barred by the First Amendment where the complaint alleges tortious conduct which constituted a violation of criminal law).

2002See Doe v. Dorsey, 683 So.2d 614 (Fla. 5th DCA 1996).

2018Fla. Nov. 12, 2014) (noting that adverse consequences visited upon a citizen who exercises her right to petition the government can give rise to a First Amendment violation, but concluding that no violation had occurred under the particular circumstances); see also Bennett v. Hendrix, 423 F.3d 1247, 1254 (11th Cir. 2005) (“A plaintiff suffers adverse action if the defendant’s allegedly retaliatory conduct would likely deter a person of ordinary firmness from the exercise of First Amendment rights.”); Moon v. Brown, 939 F. Supp. 2d 1329, 1349-51 (M.D.

2018Fla. Nov. 12, 2014) (noting that adverse consequences visited upon a citizen who exercises her right to petition the government can give rise to a First Amendment violation, but concluding that no violation had occurred under the particular circumstances); see also Bennett v. Hendrix, 423 F.3d 1247, 1254 (11th Cir. 2005) (“A plaintiff suffers adverse action if the defendant’s allegedly retaliatory conduct would likely deter a person of ordinary firmness from the exercise of First Amendment rights.”); Moon v. Brown, 939 F. Supp. 2d 1329, 1349-51 (M.D.

2018Fla. Nov. 12, 2014) (noting that adverse consequences visited upon a citizen who exercises her right to petition the government can give rise to a First Amendment violation, but concluding that no violation had occurred under the particular circumstances); see also Bennett v. Hendrix, 423 F.3d 1247, 1254 (11th Cir. 2005) (“A plaintiff suffers adverse action if the defendant’s allegedly retaliatory conduct would likely deter a person of ordinary firmness from the exercise of First Amendment rights.”); Moon v. Brown, 939 F. Supp. 2d 1329, 1349-51 (M.D.

2018Fla. Nov. 12, 2014) (noting that adverse consequences visited upon a citizen who exercises her right to petition the government can give rise to a First Amendment violation, but concluding that no violation had occurred under the particular circumstances); see also Bennett v. Hendrix, 423 F.3d 1247, 1254 (11th Cir. 2005) (“A plaintiff suffers adverse action if the defendant’s allegedly retaliatory conduct would likely deter a person of ordinary firmness from the exercise of First Amendment rights.”); Moon v. Brown, 939 F. Supp. 2d 1329, 1349-51 (M.D.

2008See also Rapp v. Jews for Jesus, Inc., 944 So.2d 460 (Fla. 4th DCA 2006) (explaining that the First Amendment does not bar tort claims).

2007Malichi, 945 So.2d at 532 (citations omitted); see also Rapp v. Jews for Jesus, Inc., 944 So.2d 460, 464 (Fla. 4th DCA 2006) (finding that the First Amendment did not bar the plaintiff's third-party tort claims based upon Malicki where "[n]one of the tort claims in this case flowed from an employment dispute between a church and a member of the clergy").

2008See Malichi v. Archdiocese of Miami, 945 So.2d 526, 529 (Fla. 1st DCA 2006) (explaining that "[t]he subject of a priest's employment relationship with his church is not per se barred by the church autonomy doctrine").

2007Malichi, 945 So.2d at 532 (citations omitted); see also Rapp v. Jews for Jesus, Inc., 944 So.2d 460, 464 (Fla. 4th DCA 2006) (finding that the First Amendment did not bar the plaintiff's third-party tort claims based upon Malicki where "[n]one of the tort claims in this case flowed from an employment dispute between a church and a member of the clergy").

2004See Nunez, 114 F.3d at 938-39 (invalidating an ordinance that did not provide for First Amendment exception); Johnson v. City of Opelousas, 658 F.2d 1065, 1067 (5th Cir.1981) (invalidating an ordinance that did not provide for First Amendment or job-related exceptions). 13 Again, the majority acknowledges that the ordinances express valid and compelling governmental interests, Majority op. at 1115-17, such as: (1) the protection of juveniles, other citizens, and visitors from late night and early morning criminal activity; (2) the reduction of juvenile criminal activity; and (3) the enhancemen

2004See Nunez, 114 F.3d at 938-39 (invalidating an ordinance that did not provide for First Amendment exception); Johnson v. City of Opelousas, 658 F.2d 1065, 1067 (5th Cir.1981) (invalidating an ordinance that did not provide for First Amendment or job-related exceptions). [13] Again, the majority acknowledges that the ordinances express valid and compelling governmental interests, Majority op. at 1115-17, such as: (1) the protection of juveniles, other citizens, and visitors from late night and early morning criminal activity; (2) the reduction of juvenile criminal activity; and (3) the enhancem

2004See Nunez, 114 F.3d at 938-39 (invalidating an ordinance that did not provide for First Amendment exception); Johnson v. City of Opelousas, 658 F.2d 1065, 1067 (5th Cir.1981) (invalidating an ordinance that did not provide for First Amendment or job-related exceptions). 13 Again, the majority acknowledges that the ordinances express valid and compelling governmental interests, Majority op. at 1115-17, such as: (1) the protection of juveniles, other citizens, and visitors from late night and early morning criminal activity; (2) the reduction of juvenile criminal activity; and (3) the enhancemen

2004See Nunez, 114 F.3d at 938-39 (invalidating an ordinance that did not provide for First Amendment exception); Johnson v. City of Opelousas, 658 F.2d 1065, 1067 (5th Cir.1981) (invalidating an ordinance that did not provide for First Amendment or job-related exceptions). [13] Again, the majority acknowledges that the ordinances express valid and compelling governmental interests, Majority op. at 1115-17, such as: (1) the protection of juveniles, other citizens, and visitors from late night and early morning criminal activity; (2) the reduction of juvenile criminal activity; and (3) the enhancem

2002I am in agreement with much of the well-reasoned opinion of Judge Polen in Doe v. Evans, 718 So.2d 286 (Fla. 4th DCA 1998), although I question whether the allegations of the operative complaint in that case even state a cause of action to be evaluated for a First Amendment bar.

2000As the Fourth District said in Doe v. Evans, 718 So.2d 286, 291 (Fla. 4th DCA 1998), review granted, 735 So.2d 1284 (Fla.1999): Our examination of case law presenting both sides of this question leads us to conclude the reasoning of those courts *550 holding the First Amendment bars a claim for negligent hiring, retention, and supervision is more compelling.

2002V, § 3(b)(3), Fla. Const. [2] State cases: Colorado: Bear Valley Church of Christ v. DeBose, 928 P.2d 1315, 1323 (Colo.1996) (holding the First Amendment not a bar to child's various tort claims against pastor and church for "pattern of inappropriate touching" that arose during counseling relationship); Moses v. Diocese of Colorado, 863 P.2d 310, 314-15 (Colo.1993) (holding First Amendment no bar to adult parishioner's claims against bishop and diocese for breach of fiduciary duty and negligent hiring and supervision grounded on sexual relationship between parishioner and priest during the cou

2002V, § 3(b)(3), Fla. Const. [2] State cases: Colorado: Bear Valley Church of Christ v. DeBose, 928 P.2d 1315, 1323 (Colo.1996) (holding the First Amendment not a bar to child's various tort claims against pastor and church for "pattern of inappropriate touching" that arose during counseling relationship); Moses v. Diocese of Colorado, 863 P.2d 310, 314-15 (Colo.1993) (holding First Amendment no bar to adult parishioner's claims against bishop and diocese for breach of fiduciary duty and negligent hiring and supervision grounded on sexual relationship between parishioner and priest during the cou

2002V, § 3(b)(3), Fla. Const. [2] State cases: Colorado: Bear Valley Church of Christ v. DeBose, 928 P.2d 1315, 1323 (Colo.1996) (holding the First Amendment not a bar to child's various tort claims against pastor and church for "pattern of inappropriate touching" that arose during counseling relationship); Moses v. Diocese of Colorado, 863 P.2d 310, 314-15 (Colo.1993) (holding First Amendment no bar to adult parishioner's claims against bishop and diocese for breach of fiduciary duty and negligent hiring and supervision grounded on sexual relationship between parishioner and priest during the cou

1998An explanation of the excessive entanglement doctrine applicable to the instant First Amendment issue is contained in the court's opinion in Konkle v. Henson, 672 N.E.2d 450 (Ind.Ct.App.1996): The First Amendment ... contains two freedoms with respect to religion: the freedom to believe and the freedom to act.

1989See generally Tribune Co. v Green, 440 So.2d 484, 486 (Fla. Id DCA 1983) (“there is abundant case law that this test is applicable to criminal . . . cases and to confidential and nonconfidential sources of information”).

1989See generally Tribune Co. v Green, 440 So.2d 484, 486 (Fla. Id DCA 1983) (“there is abundant case law that this test is applicable to criminal . . . cases and to confidential and nonconfidential sources of information”).

1988See, e.g., Branzburg v. Hayes, 408 U.S. 665 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 (1972); Tribune Co. v. Huffstetler, 489 So.2d 722 (Fla. 1986); Morgan v. State, 337 So.2d 951 (Fla. 1976).

1988See, e.g., Branzburg v. Hayes, 408 U.S. 665 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 (1972); Tribune Co. v. Huffstetler, 489 So.2d 722 (Fla. 1986); Morgan v. State, 337 So.2d 951 (Fla. 1976).

1983State v. Silber, 49 Fla. Supp. 71, 73 [5 Med.L.Rptr. 1188] (Dade Cir. Ct. 1979); State v. Beattie, 48 Fla. Supp. 139, 171 [4 Med.L.Rptr. 2150] (Dade Cir. Ct. 1979); State v. Petrantoni, 48 Fla. Supp. 49, 50 [4 Med.L.

1983State v. Silber, 49 Fla. Supp. 71, 73 [5 Med.L.Rptr. 1188] (Dade Cir. Ct. 1979); State v. Beattie, 48 Fla. Supp. 139, 171 [4 Med.L.Rptr. 2150] (Dade Cir. Ct. 1979); State v. Petrantoni, 48 Fla. Supp. 49, 50 [4 Med.L.

1978Branzburg v. Hayes, 408 U. S. 665, 707 (1972); Morgan v. State, 337 So.2d 951, 955-956 (1976); Morgan v. State, 325 So.2d 40, 43 (Fla. 2nd DCA 1976), rev’d on other grounds, 337 So.2d 951 (Fla. 1976); Laughlin v. State, 323 So.2d 691 (Fla. 3d DCA 1976); Bursey v. United States, 466 F. 2d 1059, 1083 (9th Cir. 1972); State v. St.

1978Branzburg v. Hayes, 408 U. S. 665, 707 (1972); Morgan v. State, 337 So.2d 951, 955-956 (1976); Morgan v. State, 325 So.2d 40, 43 (Fla. 2nd DCA 1976), rev’d on other grounds, 337 So.2d 951 (Fla. 1976); Laughlin v. State, 323 So.2d 691 (Fla. 3d DCA 1976); Bursey v. United States, 466 F. 2d 1059, 1083 (9th Cir. 1972); State v. St.

2025As the Court unanimously has explained in analyzing a novel First Amendment claim, “[w]hen faced with a dispute about the Constitution’s meaning or application, ‘[l]ong settled and established practice is a consideration of great weight.’” Id. at 474 (quoting The Pocket Veto Case, 279 U.S. 655, 689 (1929)).

2025As the Court unanimously has explained in analyzing a novel First Amendment claim, “[w]hen faced with a dispute about the Constitution’s meaning or application, ‘[l]ong settled and established practice is a consideration of great weight.’” Id. at 474 (quoting The Pocket Veto Case, 279 U.S. 655, 689 (1929)).

2025Sys. v. Wilson, 595 U.S. 468, 477 (2022) (looking first to historical practices, and then to precedent, to resolve a novel First Amendment claim, noting that “[w]hat history suggests, we believe our contemporary doctrine confirms”).

2025As the Court unanimously has explained in analyzing a novel First Amendment claim, “[w]hen faced with a dispute about the Constitution’s meaning or application, ‘[l]ong settled and established practice is a consideration of great weight.’” Id. at 474 (quoting The Pocket Veto Case, 279 U.S. 655, 689 (1929)).

2025In assessing whether the designation is government speech, we “conduct a holistic inquiry designed to determine whether the government intends to speak for itself or to regulate private expression.” See Shurtleff v. City of Boston, 596 U.S. 243, 252 (2022); see also id. at 262 (Alito, J., concurring) (noting the “real question in government-speech cases” is “whether the government is speaking instead of regulating private expression”).

2025In assessing whether the designation is government speech, we “conduct a holistic inquiry designed to determine whether the government intends to speak for itself or to regulate private expression.” See Shurtleff v. City of Boston, 596 U.S. 243, 252 (2022); see also id. at 262 (Alito, J., concurring) (noting the “real question in government-speech cases” is “whether the government is speaking instead of regulating private expression”).

2021See, e.g., Logue v. Book, 297 So. 3d 605 , 620 (Fla. 4th DCA 2020) (Gross, J., concurring specially) (finding First Amendment issue to be of exceptional importance); In re Estate of Walker, 609 So. 2d 623, 625 (Fla. 4th DCA 1992) (finding exceptional importance in a testamentary case interpreting the term “personal property” where the decision would have a - 27 - “far reaching effect”); Stone v. State, 547 So. 2d 158, 159 (Fla. 4th DCA 1989) (finding exceptional importance in a case interpreting the scope of searches incident to lawful arrest under the Fourth Amendment); Ortiz v. State, 24 So.

2021See, e.g., Logue v. Book, 297 So. 3d 605 , 620 (Fla. 4th DCA 2020) (Gross, J., concurring specially) (finding First Amendment issue to be of exceptional importance); In re Estate of Walker, 609 So. 2d 623, 625 (Fla. 4th DCA 1992) (finding exceptional importance in a testamentary case interpreting the term “personal property” where the decision would have a - 27 - “far reaching effect”); Stone v. State, 547 So. 2d 158, 159 (Fla. 4th DCA 1989) (finding exceptional importance in a case interpreting the scope of searches incident to lawful arrest under the Fourth Amendment); Ortiz v. State, 24 So.

2021Thoma v. O’Neal, 180 So. 3d 1157, 1159 (Fla. 4th DCA 2015).

2021Thoma v. O’Neal, 180 So. 3d 1157, 1159 (Fla. 4th DCA 2015).