From today’s decision in Jacobson v. Rubywritten 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 sought a protective order to prevent a second taking of depositions from him and his wife, and Jacobson moved to compel the depositions. In the motion for protective order and in the hearing on the motions, Rubin’s attorney complained – offhand and in the absence of pleadings or evidence – that Jacobson had defamed the Rubins. During the hearing, the court rightly pointed out that the statement was irrelevant to the discovery dispute, and refused to consider it beyond Jacobson’s attorney’s admonition to warn him of the potential consequences of such conduct.
However, the court later issued a written order on the motions stating:
ORDERED AND ADJUDGED plaintiff’s amended motion for a protective order [Doc. #344] is DENIED to prevent the depositions, but the Defendant will not be able to film or take photographs and will cease all out-of-court defamatory conduct by Defendant against Plaintiff, DAVID RUBINS and his wife, BETH RUBINS. (Emphasis added.)
The directive in italics is wrong for a number of reasons. For one thing, this is an improper prior restriction of Jacobson’s speech. Injunctions cannot be used 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]
Furthermore, the injunction is external to the pleadings and was filed without notice; as such, it violates Jacobson’s right to due process. The circuit court also erred by not requiring Rubins to post bond, as required by Florida Rule of Civil Procedure 1.610(b). Finally, and essentially, the injunction is entirely devoid of evidence.
For each of these reasons, in the ordinance in question we eliminate the italics cited above.
For more information on Florida decisions setting aside unconstitutional speech-restricting injunctions, see some of the cases cited in this article.
Timothy W. Weber and Amanda A. Felten of Weber, Crabb & Wein represent Jacobson.