How to Parse & Dissect the Florida Cyberstalking Statute

In the recent Alkiviades David v. John Textor prior restraint appeals case decided by the Florida Court of Appeals, a cyberstalking order was overturned. The applicability of Florida cyberstalking statute as it was used against David was assessed by the Florida Court of Appeals.

784.048 Stalking; definitions; penalties.—
(1) As used in this section, the term:

(a) “Harass” means to engage in a course of conduct directed at a specific person

* which causes substantial emotional distress to that person

Minor emotional distress such as "annoyance" or being "irritated" is insufficient. Being "angry" is also not "substantial".

* and serves no legitimate purpose.

Business disputes, disagreements, child custody, alimony, asset disputes, etc. would qualify as a legitimate purpose but it needs to be articulated.

Substantial emotional distress WITH a legitimate purpose is NOT harassment.

(b) “Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short,

In my opinion, a single act or even two acts would not constitute either a "pattern" or "series". Three or more incidents may or may not be regarded as a "pattern" especially if communications are about different dispute matters. For example, you communicate with someone over a financial dispute and a separate child-related dispute. A person will think you are hammering them "constantly" when you are dealing with separate subject matters.

* which evidences a continuity of purpose.

This one is a bit tricky. IN my above example, this "continuity of purpose" could be used to override the "separateness" of the issue. However, remember, if you have a "legitimate purpose", it should not be considered harassment.

* The term does not include constitutionally protected activity such as picketing or other organized protests.

Self-explanatory. David won his appeal because he was clearly exercising his First Amendment rights in making public commentary about John Textor.

(c) “Credible threat” means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct,

"Threats" are generally regarded to those that affect personal physical safety, not defamation, gossip, private information, or other reputation-harming threats.

* which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person,

The key phrases is "reasonable fear" for physical "safety". Simply be paranoid does not qualify. Also, fear of gossip, reputational damage, or unwanted publicized information does not qualify as a "threat" to personal "safety".

* and which is made with the apparent ability to carry out the threat to cause such harm.

In a more extreme example for the sake of discussion only, if someone is an indigent living on public assistance and they make a claim to hire a professional to bully or harm someone, it seems unlikely that they could actually carry it out because of the financial requirements to do so. And the "harm" being referred to has be physical harm, not reputational harm.

* It is not necessary to prove that the person making the threat had the intent to actually carry out the threat. The present incarceration of the person making the threat is not a bar to prosecution under this section.


(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,

Open letters and general publicly-accessible social media posts is NOT "directed" at a person. Communications ABOUT a person in public channels is NOT "directed" communications such as email to a specific users email account.

* causing substantial emotional distress to that person

Again, someone being angry, annoyed, or irritated does not qualify as "substantial emotional distress".

* and serving no legitimate purpose.

There are many legitimate purposes to engage in strong communication such as encouraging a lawsuit to be dropped/settled. There are business disputes, disagreement, child custody issues, child support issues, and asset disputes which are all legitimate purposes.

Substantial emotional distress WITH a legitimate purpose is NOT cyberstalking.
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