Can a community association be defamed by one of its members and sue that member for damages and injunctive relief to stop his activities on an Internet web log (blog)?
Can the association use association funds to pursue such a lawsuit? Can that member fire back that he is unlawfully being deprived of his First Amendment rights?
A case out of Collier County (Naples and Marco Island) raises these issues.
A resident of a master-planned community has been blogging for years about his community association. I have read some of those posts. It would be hard to say that his comments are positive. The question is whether those posts rise to the level of libel, which becomes actionable in a court of law.
What interest does a community association have in putting a stop to what the board considers patently false and malicious comments, especially if individual directors have been targeted?
I would say there are many.
A prospective buyer is likely to research the community on the Internet. If a blog alleges financial and other improprieties there, would you still want to buy? Does the mere existence of that blog suppress property values? If you were the blogger's neighbor and you vehemently disagreed with his opinions, would you be upset and want it stopped? If you were the developer and still had units to sell, would you be concerned?
In most cases, it is better to deflect criticism by disseminating the correct information and by being transparent. Sometimes that is not possible because it is difficult to disprove a negative.
The First Amendment is not carte blanche to say just anything. We all know that you can't yell "fire" in a crowded theater, unless the theater does happen to be on fire, in which case, please speak up.
I am not judging the merits of this case or the defenses that have been raised. I am not a First Amendment scholar and may have, in fact, been absent from my Constitutional Law class that day. This gentleman may be a true crusader for justice. He could just as easily be a curmudgeon with an ax to grind, willing to cut off his nose to spite his face. That will be up to the courts to decide.
What I find interesting about this and other similar cases cropping up around the country is the extent that the Internet has loosened inhibitions. Commenters feel they can hide behind a handle and say whatever they want. One of the comments on the case in Naples, which appeared in the local paper, was under the anonymous name of "duplicitiousteabag." Huh? What happened to having to take personal accountability for what you say or do?
Now, granted, the defendant is this case did identify himself. But did he think that setting up a blog site gave him some kind of journalistic immunity to espouse opinions that maybe could not be supported in fact? Is the Internet some kind of Wild Wild West, where anything goes?
The defendant has come up with an interesting defensive strategy. He has claimed that the association suing him has filed an unlawful "SLAPP" suit against him and is impermissibly using association funds to prosecute it. SLAPP? Even the name sounds ugly, such as, "Shut up, you have been SLAPPed"!
What the acronym really means is "strategic lawsuit against public participation."
Florida's Condominium and Homeowners' Association Acts both contain anti-SLAPP provisions. The Florida Legislature has determined that homeowners should be able to exercise their First Amendment rights to address their governmental representatives and to petition for redress of grievances before those governmental entities without fear of retribution from their association. The laws, as narrowly drawn, are intended to prohibit associations from trying to stifle owners from contesting proposed actions brought by associations before those entities. The laws also prohibit the expenditure of association funds for the purpose of pursuing such lawsuits.
Does setting up a blog and posting entries provide protection under a SLAPP law when the blogger has not addressed a governmental entity in doing so? That will be up to courts to decide, but I do not think so.
Jury verdicts are being entered against bloggers. I will follow this case, as it appears to be a contest between what constitutes unlawful censorship versus the rights of a community to protect its reputation, along with the reputation of the individual directors who volunteer to serve on the board.
I get at least some heat for what I write in this column just about every week. That really does not bother me. I have put myself out there, just as volunteer directors do when they make decisions. Can't please everybody, so might as well shrug it off, unless the criticism is legitimate. A board should be flexible to acknowledge a mistake and take corrective action.
I served for six years on the Naples City Council, and I tried to accept criticism directed my way, except for one time, when a sitting planning commissioner publicly stated that I was "worse than Hitler" for a zoning decision I made.
I did not care what he thought of me. What I cared about was that he was trivializing and marginalizing the atrocities perpetrated at the hands of that evil man. I did not have to sue him over it, and probably would not have won if I had, because I was a public figure. The front-page story about what he said was enough.
The Internet is a useful tool, but it can be used for evil as well as good. If you want to blog, fine. Just try to avoid hyperbole and accusations that cannot be factually supported. Maybe it is no coincidence that the World Wide Web and the Wild, Wild West share the same initials.
Tamela Eady is a Florida Bar board-certified real estate attorney with 25 years' experience. The subjects discussed in her columns are not intended as specific legal advice to anyone and are subject to principles that may change from time to time. Questions may be modified for clarity or for brevity. Email questions for possible inclusion in a future column to tke@eadylaw.com.
