In family law, when a cyberstalking complaint consists of social media posts, free speech and domestic violence can clash. In a recent case, a domestic violence court prohibited one Florida lawyer’s social media comments about the other lawyers in her case.
Florida lawyer Ashley Krapacs filed a petition for a domestic violence injunction against her ex-boyfriend and represented herself at the DV hearing. Attorney Russel J. Williams represented her Ex.
After Krapac lost the hearing, on jurisdictional grounds, she wrote an article about the opposing lawyer, saying that he lied to the judge on the record during these proceedings. As a result, Williams hired his own attorney, Nisha Bacchus, to sue Krapacs for defamation.
Krapacs responded by writing several social media posts disparaging the new lawyer, Bacchus, with personal insults for representing Williams in the defamation suit against her.
Then Krapacs created a blog post which claimed Bacchus filed a frivolous lawsuit against her, accused her of being a bully, and included a vulgar insult. She tagged Bacchus in more posts and hurled insults at Bacchus and her law firm and identified the car Bacchus drove.
In one of her final Facebook posts, Krapacs stated she was going to connect with Bacchus’s former clients to sue her for malpractice. Bacchus sought to stop this by filing a petition for an injunction, alleging Krapacs was cyberstalking her.
The DV judge entered the injunction and limited Krapacs’ use of her office space since both Krapacs and Bacchus had offices in the same building. The judge also prohibited Krapacs from posting on social media about Bacchus and ordered her to take down all the offending posts about Bacchus.
Family Law and Free Speech
I’ve written about free speech in family law before. Family courts have a lot of power to protect children, and that can involve restraints on free speech. Speech can be enjoined under our domestic violence laws.
Domestic violence injunctions prohibiting free speech are subject to constitutional challenge because they put the government’s weight behind that prohibition: a judge orders it, and the police enforce it.
Florida, the term “domestic violence” has a very specific meaning, and it is more inclusive than most people realize. It means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.
Domestic violence can also mean cyberstalking. Cyberstalking is harassment via electronic communications. A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree.
A 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, 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, and which is made with the apparent ability to carry out the threat to cause such harm.
Cyberstalking and Free Speech
The appellate court felt Krapacs’ actions did not qualify as cyberstalking because they did not constitute a pattern of conduct composed of a series of acts over time evidencing a continuity of purpose.
Retagging in social media posts for four hours constituted, in the court’s view, one instance of qualifying conduct under the statute. The other acts Bacchus complained of were deemed to be constitutionally protected and did not qualify as additional instances of repeated stalking.
The court also found that the injunction prohibiting Krapacs “from posting Nisha Bacchus, Nisha Elizabeth Bacchus or any part thereof, on any social media or internet websites, and requiring her to take down all social media and internet posts that reference Nisha Bacchus was overbroad.
While the appellate court held that her comments could not be subject to an injunction, it did find that Krapacs was not immune from civil liability for her actions and could face money damages.
Then there’s the Florida Bar, which then filed an emergency suspension petition against Krapacs. The Bar viewed her social media tweets, posts and comments as arising out of the opposing lawyers’ representation of clients who were litigating against her.
The Bar called Krapacs strategy “terrorist legal tactics” and felt it was prejudicial to the administration of justice.
After a hearing, the referee recommended a two-year suspension from the Florida Bar. The Florida Supreme Court reviewed the case, disapproved of the two-year suspension, and instead disbarred her.
The opinion is here.