Court Can’t Ban Resident From Discussing HOA Online–Fox v. Hamptons at MetroWest Condos

This is the third time this year I’m blogging about homeowners’ associations suppressing online speech (see my posts on the Revock and Milazzo cases). I’m pretty sure HOA online censorship is a growth industry (indeed, my CRFA primer calls out the housing/lodging industry as one of the places where anti-review clauses were deployed). If you’re looking for paper topics, this may be worth exploring.

This lawsuit involves the Hamptons at MetroWest condo complex in Orlando. Apparently they have some major issues with construction defects or maintenance. Fox resides in the condo community. The HOA sued him for “a continuous course of conduct designed and carried out for the purpose of harassing, intimidating, and threatening other residents, the Association, and its representatives” (unfortunately, the opinion wasn’t more specific about Fox’s prior activities). The parties settled that lawsuit. Shortly thereafter, the HOA sought a contempt order (apparently because “Fox utilized the internet to voice his displeasure over the quality of life at the Hamptons”), and the court:

ordered Fox to stop posting, circulating, and publishing any pictures or personal information about current or future residents, board members, management, employees or personnel of the management company, vendors of the Hamptons, or any other management company of the Hamptons on any website, blog, or social media. He was further ordered to take down all such information currently on any of his websites or blogs. The trial court also prohibited Fox from starting any new blogs, websites or social media websites related to the Hamptons or the Association. It informed Fox that, as his punishment, if someone asked him on his social media page if he enjoyed living at the Hamptons, he could not post a response online. Instead, he would have to call the person to express his concerns.

Oh, Florida….

Fortunately, this doesn’t fly with the appeals court. Unlike the Revock case, this court actually sees the First Amendment implications here. After waxing philosophic about the impermissibility of prior restraints, the court concludes:

In this case, the trial court erred when it prohibited Fox from making any statements whatsoever pertaining to the Hamptons or to the Association on his websites, blogs, and social media websites without conducting a proper constitutional inquiry [which, in a footnote, the court says should balance concerns about emotional distress with the ease that readers can avoid social media]. Accordingly, we reverse the portions of the contempt order prohibiting Fox from posting on any website, blog, or social media, and remand for further proceedings. However, we conclude that the trial court did not err when it enforced the agreed upon terms of the settlement agreement and affirm the contempt order in that respect.

However, without knowing the settlement agreement’s terms, it’s hard to know if Fox really won this ruling. For example, if the settlement agreement contained a non-disparagement clause–and settlement agreements often do–Fox still may not be able to speak the truth and instead may have to adhere to a cartoonish “Everything is Awesome!” public persona.

To me, this highlights the perniciousness of non-disparagement clauses. Like bans on consumer reviews, non-disparagement clauses contractually impose censorship that would be otherwise unconstitutional–and thereby strip away valuable negative truthful information from the marketplace of ideas. Contrast a non-disparagement clause with a “don’t defame me” clause, which is still problematic (as I discuss here) but at least bans actually illegal behavior. If non-disparagement clauses continue to expand, especially to contracts other than settlement agreements, I think we’ll need to statutorily circumscribe or ban non-disparagement clauses. Sounds like another good paper topic. In the interim, if you draft contracts to include non-disparagement clauses, you’ve been warned.

(Note on the Consumer Review Fairness Act: it wouldn’t apply to the HOA/Fox settlement agreement because, among other things, the settlement agreement almost certainly isn’t a “form” contract as defined by the statute).

Without seeing the underlying initial lawsuit, it’s also hard to know if a robust anti-SLAPP law might have helped. Florida expanded its narrow anti-SLAPP law in 2015, but I don’t know if that expanded law was in place when the initial lawsuit was filed (nor is it clear how the expanded law applies to online content). Florida also has a specific anti-SLAPP law against HOAs trying to stop homeowners from seeking government redress, but that HOA-specific anti-SLAPP law still may have been too narrow to cover Fox’s activities. Given the overall tenor of this litigation, it seems like a robust anti-SLAPP law might have helped guide the lower courts recognize the important speech issue at play.

Case citation: Fox v. Hamptons at MetroWest Condominium Association, 2017 WL 3091217 (Fla. Dist. Ct. App. July 21, 2017)