The mug you see there belongs to Raanan Katz, minority owner of the Miami Heat, former Israeli basketball player, and real estate developer in Sunny Isles, Fla. He's into silly faces and frivolous lawsuits, and somehow he just got a court in Florida to walk all over the First Amendment.
Let's start with the silly faces. Back in June, Katz sued Google to remove that ridiculous picture of Katz sticking his tongue out, claiming copyright infringement. He also sued a small-time Blogspot blogger and aggrieved former tenant named Irina Chevaldina, who has been publishing various publicly available documents concerning various lawsuits involving Katz and his company. Chevaldina has posted the picture of a turtle-faced Katz several times.
But what is Katz's legal theory?
It is unclear whether this is still an active suit, but it appears Google is no longer involved in the case. Katz and Chevaldina have a long history, however,and the latest chapter is even crazier than suing a search engine because your stupid face is on the internet.
On Nov. 1, 2012, in the 11th Judicial Circuit Court of Florida, Raanan Katz filed a motion for preliminary injunction against Chevaldina to, in his words, "Enjoin Tortious Interference, Stalking, Trespass and Defamatory Blogs." That means Katz wanted the court to prevent Chevaldina from interfering with his ability to pursue his business interests, from entering his property, and from writing about him on her blog. The Florida court recently granted Mr. Katz's motion, which is nuts.
To be clear, because this cannot be emphasized enough, Raanan Katz asked a Florida state court to issue an order preventing a private resident of Florida from writing things about him on her personal blog—and the Florida state court granted the request. From the order:
The Court, having reviewed the file, heard argument of counsel, considered limited testimony, admitted evidence and being otherwise duly advised in the premises, makes no finding of facts as to actual violations of law by the Defendants, except that the Defendants have blogged extensively about the Plaintiff and many of these blogs are arguably defamatory.
So: The court won't make any findings of fact regarding possible defamation, but it will justify prior restraint—forbidden by the First Amendment of the U.S. Constitution as well as the Florida Constitution, except in very limited circumstances—on the grounds that "many" of the blogs are "arguably" defamatory. I believe this is known in jurisprudence as the "I'm not sayin', I'm just sayin'" doctrine. If you were explaining state actions and prior restraints to a slow 6-year-old, this is the example you would use to illustrate the point.
Have I mentioned that this is crazy? If you could see my face, it would look something like:
The Florida court—and Katz's attorneys—rely on some case law that draws a distinction between pure speech and commercial speech, especially when the speech is linked to other torts. This is why Katz has asked for a preliminary injunction to enjoin tortious interference, stalking et. al.—the theory being that these "blogs," if they reach Katz's customers, would have an impact on his bottom line. Just because speech has a commercial impact, however, does not mean it is commercial speech. Chevaldina has claimed she is seeking to educate the public on what she claims are improper business practices. She has no financial stake in the matter, unlike the defendants in the case law relied upon by the court in granting this injunction. (Those were tenants picketing the landlord to compel various repairs, which the court deemed commercial interests.)
As you can imagine, it is ordinarily very difficult to obtain such an injunction. The movant has to demonstrate that he or she has a substantial likelihood of success on the merits (i.e. show solid evidence of defamation and damages as a result) of the claim. Unless, apparently, you're a partial owner of the Heat, in which case you can have the state prevent people from writing anything that is "arguably" defamatory.
Here's what Lawrence Walters, a First Amendment attorney in Florida, had to say in an email:
The trial court's broad injunction against future defamation is astonishingly at odds with the First Amendment and should be reversed on appeal. This type of prior restraint on speech is presumptively unconstitutional, for good reason: Powerful individuals and companies should not be permitted to use the courts to silence critics. If this Order were to be upheld, the precedent would represent a dangerous threat to freedom of speech and freedom of the press in the state of Florida.
In conclusion, Raanan Katz is a dick, and so is the 11th Judicial Circuit of Florida.
Here's the full Google complaint: