Case No. SC04-579 IN THE SUPREME COURT OF FLORIDA DAVID SIEGEL, individually & WESTGATE RESORTS, LTD., a Florida limited partnership, through its general partner, WESTGATE RESORTS, INC., a Florida corporation, Petitioners. vs. ANIMAL RIGHTS FOUNDATION OF FLORIDA, INC. and HEATHER LISCHIN Respondents. On Discretionary Review from the District Court of Appeal of Florida, Fifth District Respondents Jurisdictional Brief Thomas R. Julin & D. Patricia Wallace Florida Bar Nos. 325376 & 0185930
Hunton & Williams LLP Attorneys for Respondents Mellon Financial Center 1111 Brickell Avenue - Suite 2500 Miami, FL 33131 305.810.2516 Fax 2460 tjulin@hunton.com Case No. SC04-579
TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTRODUCTION... 1 STATEMENT OF THE CASE AND THE FACTS... 1 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 5 I. The Court Does Not Have Jurisdiction to Review an Opinion that Applies Well-Settled First Amendment Principles... 5 II. The District Court s Decision Does not Expressly or Directly Conflict with Decisions of this Court or Other District Courts... 6 A. The Decision Does Not Conflict with Gilbreath or Kimball... 7 B. The Decision Does Not Conflict with Florida Fern Growers, Zimmerman, DeRitis, or Azar... 8 C. The Decision Does Not Conflict with Johnson or Operation Rescue... 9 CONCLUSION... 10 CERTIFICATE OF SERVICE...iv i
TABLE OF AUTHORITIES Cases Azar v. Lehigh Corp., 364 So. 2d 860 (Fla. 2d DCA 1978)...8 Campus Communications, Inc. v. Earnhardt, 821 So. 2d 388 (Fla. 5th DCA 2003)...6 DeRitis v. AHZ Corp., 444 So. 2d 93 (Fla. 4th DCA 1984)...8 Florida Fern Growers Association v. Concerned Citizens, 616 So. 2d 562 (Fla. 5th DCA 1993)...8 Gilbreath v. State, 650 So. 2d 10 (Fla. 1995)...7 Hill v. Colorado, 530 U.S. 703 (2000)...5 Johnson v. Women s Health Center, Inc., 714 So. 2d 580 (5th DCA), review denied, 719 So. 2d 893 (Fla. 1998)..9 Kimball v. Florida Department of Health & Rehabilitation Services, 682 So. 2d 637 (Fla. 2d DCA 1996)...7, 8 Madsen v. Women s Health Center, Inc., 512 U.S. 753 (1994)...5 NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982)...5 ii
Near v. Minnesota, 283 U.S. 697 (1930)...5 Operation Rescue v. Women s Health Center, 626 So. 2d 664...9 Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971)...5 Penelas v. Arms Tech., Inc., 778 So. 2d 1042 (Fla. 3d DCA 2001)...6 Rojas v. State, 288 So. 2d 234 (Fla. 1973)...6 Schultz v. Schultz, 581 So. 2d 1290 (Fla. 1991)...6 Zile v. State, 710 So. 2d 729 (Fla. 4th DCA 1999)...6 Zimmerman v. D.C.A. at Welby, Inc., 505 So. 2d 1371 (Fla. 4th DCA 1987)...8 Constitutional Provisions, Statutes & Rules U.S. Const., amend. I... 4-5 U.S. Const., amend. V... 6 U.S. Const., amend. XIV... 5 Fla. Const., art. I, sec. 24... 6 iii
Fla. Const., art. II, sec. 3... 6 Ch. 499, Fla. Stats.... 8 Florida Rule of Appellate Procedure 9.210(a)... 11 iv
INTRODUCTION This appeal arises from a libel action filed by David Siegel, a prominent developer of time-share condominiums near Orlando, and one of his business entities, Westgate Resorts, Ltd. (referred to collectively as Siegel ). The lawsuit claims the defendants, the Animal Rights Foundation of Florida, Inc. and its managing director, Heather Lischin. (collectively the Foundation ) accused Siegel of abusing wild animals during public protests. Upon filing the suit, Siegel moved to enjoin further protests during the litigation. The trial judge initially denied the request, but reconsidered his ruling after the Foundation resumed protests. The Fifth District concluded that the injunction was an overly broad, contentbased prior restraint of speech and vacated it. The decision simply applies a wellestablished a federal constitutional principle and does not expressly construe any constitutional provision. The decision also is not in express and direct conflict with any prior decisions of this Court or other district courts of appeal. STATEMENT OF THE CASE AND THE FACTS Siegel s statement of the case and the facts is based exclusively on the dissenting opinion below. The dissent s statement of the case and the facts is not the 1
decision of the Court below. This Court therefore should disregard Siegel s statement of the case and the facts. To the extent the dissenting opinion is considered, it should be noted that it is inconsistent with the majority opinion in many respects. For example, the dissent asserts that the Foundation s protest stopped traffic. (Appendix - Sawaya, C.J., at 6). This simply ignores the majority s observation that the record is devoid of any evidence that the Foundation had or was likely to impede the free flow of traffic absent such injunctive relief. (Appendix - Palmer, J., at 6). In addition, Siegel s description of the dissent is not itself accurate. This is masked, in part, by Siegel s failure to cite specific pages of the 19-page dissent upon which he relies to describe the facts of the case. Instead, he cites the entire dissent as supporting each of his statements describing the case. A close reading of the dissent and Siegel s petition shows that Siegel has badly mischaracterized many aspects of the dissent. For example, Siegel asserts that the PETA videotape that depicts David McMillan, the owner of Tiger s Eye Productions ( TEP ), beating lions and tigers in the face with sticks and pipes wasn t about Petitioners and Petitioners, who are in the 2
timeshare business, have no relationship to TEP. (Petition at 1). In fact, the dissent notes that the trial court found that the Foundation s protests were targeted at WESTGATE s use of Tiger s Eye Production (Id. at Sawaya, C.J., dissent at 2), and that the Foundation used the videotape to call public attention to the fact that SIEGEL has for several years known about the exploitative nature of Tiger s Eye, and yet has refused to acknowledge the appalling abuse of big cats, including lions, tigers and leopards. (Id. at Sawaya, J, dissent at 2). The majority opinion correctly reports that [t]he events precipitating the request for an injunction stem from Siegel s hiring of Tiger s Eye Productions to provide entertainment for Westgate Resorts through twice weekly animal shows as a draw for potential buyers (Appendix- Palmer, J., at 1) and that the protests at issue were directed at Siegel s continued association with Tiger s Eye. (Id. - Palmer, J., at 2). Siegel asserts that the dissent recites that various governmental agencies that reviewed the videotape found that the alleged violations had not occurred. (Petition at 1) (emphasis added). In fact, the dissent concluded only that the state attorney declined to prosecute, not that it found alleged violations had not occurred. (Appendix- Sawaya, C.J., dissenting at 1) Similarly, the dissent noted that the United 3
States Department of Agriculture did not find violations and that the Game and Fresh Water Fish Commission also found no violations, not that either of these agencies affirmatively found that violations had not in fact occurred. (Id. at 1 & n.1). Significantly, even the dissent acknowledged that the videotape depict[ed] harsh discipline methods that were part of the training regimen of the tigers. (Id. at 1). Siegel cites the entire dissent as supporting his contention that the trial court made findings that petitioners did not abuse animals, that Petitioner s were not public figures, that the Foundation s counsel admitted [the Foundation] was trying in interfere with Petitioner s relationship with TEP, that the Statements were false and defamatory, that the Foundation republished statements which the Judge had already found to be false and defamatory, and that the Statements were commercial speech and verbal acts. (Petition at 2-4). In fact, the dissent recites no such facts and neither the majority nor the dissent is based on any such findings. Finally, Siegel misdescribes the injunction that was actually entered by the trial court and vacated by the Fifth District. (Petition at 4). The actual injunction is accurately described by the majority opinion. (Appendix - Palmer, J., at 3-4). SUMMARY OF THE ARGUMENT 4
5 Point I. The decision below applies well-established First Amendment principles to vacate a plainly overbroad, content-based temporary injunction to stop public criticism of the plaintiffs during the pendency of their libel action. The Court s jurisdiction to review decisions construing constitutional provisions does not extend to this case because mere application of well-established constitutional does not construction of a constitutional provision. Point II. The decision is not in conflict with any decisions of this Court or of any other District Court of Appeal. ARGUMENT I. The Court Should Decline to Review the District Court s Application of Well-Settled First Amendment Principles Siegel first asserts that the Court has jurisdiction to review the opinion below because it construed provisions of the state and federal constitution. In fact, the opinion simply applied constitutional principles that have been well established since the Supreme Court decided Near v. Minnesota, 283 U.S. 697 (1930), 74 years ago, Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), 33 years ago, and NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), 22 years ago. In these
cases, the Supreme Court has held that prior restraints against allegedly defamatory or tortious speech violate the First and Fourteenth Amendments. Where requests for prior restraint have not targeted the content of the speech, but rather have targeted conduct associated with speech that interferes with traffic, the Supreme Court has held reasonable time, place, and manner restrictions may be imposed. See Madsen v. Women s Health Center, Inc., 512 U.S. 753 (1994), and Hill v. Colorado, 530 U.S. 703 (2000). The majority opinion found nothing in this record shows that the Foundation or those participating in its protests did anything to block streets or threaten the health of others. It also found that the injunction targeted the content of the defendants speech. Thus, the Fifth District s decision reversing the injunction is a straightforward application of well-established constitutional principles that is not reviewable pursuant to article V, section 3(b)(3). Applying is not synonymous with construing; the former is NOT a basis for our jurisdiction, while the express construction of a constitutional provision is. Rojas v. State, 288 So. 2d 234, 236 (Fla. 1973). As tempting as it is to decide a case involving matters of broad general interest, [the Court is] to taking those cases specifically prescribed by our constitution. Schultz v. 6
Schultz, 581 So. 2d 1290, 1294 (Fla. 1991) (Grimes, J., concurring in part and dissenting in part). The Court has relied on these principles regularly to decline to review cases that apply constitutional provisions, but do not construe them. 1 It should rely on those same principles here to decline to review the instant case. II. The District Court s Decision Does not Expressly or Directly Conflict with Decisions of this Court or Other District Courts The decision below is not in conflict with decisions of this Court or of other district courts of appeal. A. The Decision Does Not Conflict with Gilbreath or Kimball Siegel first contends that the panel opinion conflicts with Gilbreath v. State, 650 1 See, e.g., Campus Communications, Inc. v. Earnhardt, 821 So. 2d 388 (Fla. 5 th DCA 2003), rev. dismissed, No. SC02-1635 (Fla. July 1, 2003) (declining to review opinion applying article I, section 24, Florida Constitution); Penelas v. Arms Tech., Inc., 778 So. 2d 1042 (Fla. 3d DCA 2001), review dismissed, No. SC01-861 (Fla. Oct. 24, 2001) (declining to review opinion applying article II, section 3, Florida Constitution); Zile v. State, 710 So. 2d 729 (Fla. 4 th DCA 1999), review dismissed, No. 93,239 (Fla. Oct. 28, 1999) (declining to review opinion applying Fifth Amendment of United States Constitution). 7
So. 2d 10, 12 (Fla. 1995), and Kimball v. Florida Department of Health & Rehabilitation Services, 682 So. 2d 637 (Fla. 2d DCA 1996), decisions relied on by Chief Judge Sawaya in his concurring and dissenting opinion. A brief description of each of these cases easily demonstrates that neither is in conflict with the decision under review. In Gilbreath the defendant had been convicted of making obscene and harassing phone calls. Over a two-year period, the defendant had made 30 telephone calls to the home of a postal employee and had attacked other postal employees using numerous expletives and had threatened that if they did not stop messing with her and her husband, they would all be gone. Id. at 10. The Court upheld the conviction and the statute at issue which criminalized the making of obscene or harassing telephone calls. The Court observed that the statute was narrowly tailored because it applied only to telephone communications made to a person at a location where that person has a reasonable expectation of privacy, with intent to offend, annoy, abuse, threaten, or harass. Id. at 12. The decision has no application to peaceful picketing outdoors on public property that does nothing to impede the flow of traffic. 8
In Kimball, the plaintiffs claimed that employees of the Florida Department of Health & Rehabilitative Services performed searches and seizures in violation of and beyond the authority granted them by chapter 499, Florida Statutes. They asked the court to enjoin any further such unlawful action. The trial court struck the claim as a sham. The Second District reversed that decision, holding that Persons who are the subject of harassment by the overzealous, improper or bad faith use of valid statutes may be afforded the protection of injunctive relief. Id. at 639. This decision also has no application to a claim for injunctive relief against a private Foundation and its members engaged in peaceful picketing on public property. B. The Decision Does Not Conflict with Florida Fern Growers, Zimmerman, DeRitis, or Azar The petition also contends that the decision conflicts with Florida Fern Growers Ass n v. Concerned Citizens, 616 So. 2d 562 (Fla. 5 th DCA 1993); Zimmerman v. D.C.A. at Welby, Inc., 505 So. 2d 1371 (Fla. 4 th DCA 1987); DeRitis v. AHZ Corp., 444 So. 2d 93 (Fla. 4 th DCA 1984); and Azar v. Lehigh Corp., 364 So.2d 860 (Fla. 2d DCA 1978). The Florida Fern Growers decision is a decision of the Fifth District and 9
therefore cannot provide a basis for inter-district conflict jurisdiction. In Zimmerman, the Fourth District upheld, in part, a temporary injunction against condominium owners who were demonstrating in order to try to persuade a developer to make repairs to their units. In DeRitis, the Fourth District also affirmed a temporary injunction against condominium purchasers who were demonstrating against the developer who had sold them what they claimed to be shabby units. In Azar, the Second District upheld a temporary injunction preventing a former employee of a developer from contacting prospective customers of the developer to persuade them to rescind contracts and to purchase property from him at a lower price. None of these cases involved speech of public concern or political protests of any kind. The majority opinion noted that the instant case arose from sharply contrasting facts. The evidence in the record established that the Foundation was not a competitor of Siegel or Westgate, nor was the Foundation s activity promoting some economic interest. Rather the speech was of a political natures, protesting alleged animal rights violations. As such, the speech involved in this case was pure speech which was not properly restrained to prevent the tortious interference alleged. (Appendix - Palmer, J. at 10). C. The Decision Does Not Conflict with Johnson or Operation Rescue 10
The petition finally argues that the decision motion for rehearing argues that the injunction is in conflict with Johnson v. Women s Health Center, Inc., 714 So. 2d 580 (5 th DCA), review denied, 719 So. 2d 893 (Fla. 1998), and Operation Rescue v. Women s Health Center, 626 So. 2d 664). Johnson, like Florida Fern Growers, is a decision of the Fifth District and therefore cannot create inter-district conflict. Johnson also arose from different facts and circumstances and did not announce or apply any principles any different from those applied in the instant case. The majority opinion itself distinguished Johnson as a case where the trial court made factual finding that the defendants had physically blocked access to an abortion clinic. (Appendix - Palmer, J., at 6). In the instant case, the record was devoid of evidence showing that the defendants protests blocked access to anything. CONCLUSION The Court should deny the petition for discretionary review. Respectfully submitted, Hunton & Williams LLP Attorneys for the Animal Rights Foundation of Florida, Inc.& Heather Lischin 11
2004, to: By Thomas R. Julin & D. Patricia Wallace Florida Bar Nos. 325376 & 0185930 1111 Brickell Avenue - Suite 2500 Miami, FL 33131 305.810.2505 Fax 2460 tjulin or pacosta@hunton.com CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this brief was mailed April 29, Victor S. Kline, Esq. Greenspoon, Marder, Hirschfeld, Rafkin, Ross & Berger, P.A. Attorneys for the Appellees 135 West Central Boulevard, Suite 1100 Orlando, Florida 32801 Thomas R. Julin CERTIFICATE OF COMPLIANCE In accordance with Florida Rule of Appellate Procedure 9.210(a), undersigned counsel certifies that this brief complies with the font requirements of Florida Rule of iv
Appellate Procedure 9.210. Thomas R. Julin v