From today’s decision in Jacobson v. Rubins, written by Judge Stevan Northcutt, joined by Judges Morris Silberman and Craig Villanti:

David Jacobson … and David Rubins are engaged in circuit court litigation involving a real estate transaction. During discovery, Rubins moved for a protective order to preclude a second taking of his and his wife’s depositions, and Jacobson moved to compel the depositions. In the motion for protective order and at the hearing on the motions, Rubin’s attorney complained—immaterially and absent pleadings or evidence—that Jacobson had been defaming the Rubinses. During the hearing, the court correctly pointed out that the assertion was irrelevant to the discovery dispute, and it declined to consider it beyond admonishing Jacobson’s attorney to caution him about the potential ramifications of any such conduct.

Nevertheless, the court later issued a written order on the motions that states:

ORDERED AND ADJUDGED that Plaintiff’s Amended Motion for Protective Order [Doc. #344] is DENIED to bar the depositions but Defendant shall not video or take photographs and shall cease all Defendant’s extrajudicial defamatory conduct towards Plaintiff, DAVID RUBINS and his wife, BETH RUBINS. (Emphasis added.)

The italicized directive is erroneous for a variety of reasons. For one thing, it is an improper prior restraint on Jacobson’s speech. Injunctions may not be employed to prohibit the making of defamatory statements. [Note that, in Florida, such injunctions are permitted, at least after a trial on the merits, when the lawsuit is for both defamation and interference with business relations; in many other states, narrow post-trial injunctions against defamation are even more broadly available. -EV]

Also, the injunction is outside the pleadings, and it was entered without notice; as such, it violates Jacobson’s right to due process. The circuit court further erred by failing to require Rubins to post a bond, as required by Florida Rule of Civil Procedure 1.610(b). Finally, and basically, the injunction is wholly unsupported by evidence.

For each of these reasons, we vacate the above-quoted italicized language in the order under review.

For more on Florida decisions setting aside unconstitutional speech-restrictive injunction, see some of the cases cited in this article.

Timothy W. Weber and Amanda A. Felten of Weber, Crabb & Wein represent Jacobson.


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