ASHLEY ANN KRAPACS v. NISHA E. BACCHUS

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ASHLEY ANN KRAPACS,

Appellant,

v.

NISHA E. BACCHUS,

Appellee.

No. 4D19-641

[August 12, 2020]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,

Broward County; Stefanie Moon, Judge; L.T. Case No. DVCE19-0341.

Devika L. Carr of D. Carr Law, Coral Springs and Ron Renzy of

Wallberg & Renzy, P.A., Coral Springs, for appellant.

Joseph A. DiRuzzo, III of DiRuzzo & Company, Fort Lauderdale, for

appellee.

KLINGENSMITH, J.

Appellant, Ashley Krapacs, appeals the trial court’s stalking

injunction entered against her and in favor of Nisha Bacchus. Because

the conduct complained of does not meet the legal requirements for an

injunction under Florida Statute Chapter 784, we reverse.

This case initially sprang from Krapacs’ own petition for an injunction

against her former boyfriend due to domestic violence concerns.

Attorney Russel J. Williams represented the former boyfriend before the

trial court while Krapacs, also an attorney, represented herself. After her

petition was denied, Krapacs wrote an article stating that Williams lied to

the judge on the record during these proceedings. As a result, Williams

hired attorney Bacchus to sue Krapacs for defamation. Krapacs

responded by hiring an attorney and writing several social media posts

disparaging Bacchus with personal insults for representing Williams in

the defamation suit against her.

Bacchus became particularly concerned after Krapacs posted a meme

on Instagram captioned “when opposing counsel tries to use the same

exact trick you saw in your last case.” The image showed an adult

sticking his head through a pet door, only to face a child pointing a toy

gun at him. Additionally, Krapacs created a blog post that included a

picture of Bacchus with a hyperlink directing readers to Bacchus’s

attorney profile on her firm’s website. The post claimed Bacchus filed a

frivolous lawsuit against Krapacs, accused Bacchus of being a bully, and

included a vulgar insult.

As the defamation suit progressed against her, Krapacs continued to

tag 1 Bacchus in her posts, hurled various insults at Bacchus and her

law firm, and identified the model of 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 in small claims court.

Krapacs also tagged Bacchus on several of these posts as well as through

other social media platforms. On one occasion, upon learning of the

posts, Bacchus stepped out of a meeting and spent the next four hours

un-tagging herself from them as Krapacs continued to re-tag her.

Bacchus sought to stop this behavior by filing a petition for an

injunction, alleging Krapacs was cyberstalking her as defined by section

784.048(1)(d), Florida Statutes (2018), through her social media posts.

The trial court granted a temporary injunction against Krapacs pending a

final hearing. At that final hearing, Bacchus described the posts as

increasingly aggressive and personal. Bacchus testified that she felt

violated, scared, and alarmed when Krapacs referenced the make of her

car because she did not know how Krapacs discovered that personal

detail. Bacchus also said she felt extremely anxious when she found out

Krapacs was attempting to reach her former clients to file bar complaints

and malpractice suits against her. Bacchus also stated that because of

Krapacs’ posts, she had difficulty sleeping, headaches, and severe

stomach aches.

After hearing the testimony, the trial court entered a final judgment of

injunction for protection against stalking. The judge directed the clerk to

narrowly tailor the injunction to balance Krapacs’ First Amendment

rights with Bacchus’s safety. To achieve this goal, the trial court limited

Krapacs’ use of her office space since both Krapacs and Bacchus had

offices in the same building. Under this limitation, Krapacs could only

go to her office once a week to retrieve mail and could no longer hold

1 “Tagging” occurs when person A uses person B’s username to link their post

to person B’s account. This makes the post visible to person B’s social media

contacts and creates a direct hyperlink between person A’s post and person B’s

account.

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client meetings in her office. The trial court also prohibited Krapacs from

posting on social media about Bacchus regarding private matters that

cause both substantial emotional distress and serve no legitimate

purpose. Finally, the trial court required Krapacs to take down all the

offending posts about Bacchus. From that injunction this appeal

followed.

“The standard of review for an order imposing a permanent injunction

is abuse of discretion.” Weisberg v. Albert, 123 So. 3d 663, 664 (Fla. 4th

DCA 2013). “But the question of whether the evidence is legally

sufficient to justify imposing an injunction is a question of law that we

review de novo.” Pickett v. Copeland, 236 So. 3d 1142, 1144 (Fla. 1st

DCA 2018).

“[C]yberstalking is harassment via electronic communications.” Scott

v. Blum, 191 So. 3d 502, 504 (Fla. 2d DCA 2016). Section 784.0485(1),

Florida Statutes (2018), defines it as “engag[ing] in a course of conduct to

communicate, or to cause to be communicated, words, images, or

language by or through the use of electronic mail or electronic

communication, directed at a specific person causing substantial

emotional distress to that person and serving no legitimate purpose.” §

784.048(1)(d), Fla. Stat. (2018) (emphasis added).

Under section 784.048(1)(b), a “course of conduct” is defined as “a

pattern of conduct composed of a series of acts over a period of time,

however short, which evidences a continuity of purpose.” However, “[t]he

term does not include constitutionally protected activity such as

picketing or other organized protests.” See id. In David v. Schack, 192

So. 3d 625, 627-28 (Fla. 4th DCA 2016), this court articulated the

requirements for an injunction to protect against stalking:

[T]he petitioner must allege and prove two separate instances

of stalking. “Each incident of stalking must be proven by

competent, substantial evidence to support an injunction

against stalking.” When considering the sufficiency of the

evidence, “[c]ourts apply a reasonable person standard, not a

subjective standard, to determine whether an incident

causes substantial emotional distress.”

(citations omitted).

Krapacs’ actions do 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. See § 784.048(1)(d), Fla. Stat. (2018);

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Packal v. Johnson, 226 So. 3d 337, 338 (Fla. 5th DCA 2017) (finding that

multiple acts can “amount to one continuous course of conduct,

establishing only one instance of harassment”). Krapacs’ act of retagging

Bacchus in her social media posts for four hours constitutes one

instance of qualifying conduct under the statute. See Thoma v. O’Neal,

180 So. 3d 1157, 1160 (Fla. 4th DCA 2015). This conduct, by itself, is

akin to an attempt to force unwanted speech upon Bacchus and

therefore “‘crosses the line’ in terms of First Amendment protection.” See

id. However, the other acts Bacchus described are constitutionally

protected activities and do not qualify as additional instances of repeated

stalking. See id.; Chevaldina v. R.K./FL Mgmt., Inc., 133 So. 3d 1086,

1092 (Fla. 3d DCA 2014). Because Krapacs’ actions do not qualify as

cyberstalking under the statute, we need not address whether Bacchus

suffered substantial emotional distress or whether Krapacs’ posts served

a legitimate purpose and were directed at Bacchus.

Krapacs also argues that the blanket injunction issued by the trial

court imposes a “prior restraint” on her First Amendment right to free

speech. Like statutes that regulate speech, court-ordered injunctions

that regulate speech are also subject to First Amendment scrutiny. See

Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 757 (1994). “The term

prior restraint is used ‘to describe administrative and judicial orders

forbidding certain communications when issued in advance of the time

that such communications are to occur.’” Alexander v. United States,

509 U.S. 544, 550 (1993) (citation omitted). “Temporary restraining

orders and permanent injunctions—i.e., court orders that actually forbid

speech activities—are classic examples of prior restraints.” See id.

The fact that speech may now occur in “cyberspace—the ‘vast

democratic forums of the Internet’ in general, and social media in

particular,” does not mean that governmental regulation of that speech is

beyond the reach of First Amendment analysis and scrutiny. See

Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017) (internal

citations omitted) (invalidating a North Carolina statute that prohibited

registered sex offenders from accessing commercial social-networking

websites); see also Citizens United v. Fed. Elections Comm’n, 558 U.S.

310, 326 (2010) (stating that “[c]ourts, too, are bound by the First

Amendment [and] [w]e must decline to draw, and then redraw,

constitutional lines based on the particular media or technology used”).

A case from the Third District, Chevaldina, is instructive. 133 So. 3d

at 1086. In Chevaldina, the Third District considered whether certain

internet blog postings constituted “cyberstalking” and were “‘incidents of

violence,’ i.e., stalking, as to justify an injunction pursuant to section

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784.046.” Id. at 1091. The respondent had blogged extensively about

the petitioner, and many of the blog posts were “arguably defamatory.”

Id. at 1089. The trial court entered an injunction prohibiting the

respondent from making more defamatory blog posts. Id. In reversing

the lower court’s order, the Third District held that the petitioner failed to

introduce evidence that the blog posts at issue were being used “to

communicate, or to cause to be communicated, words, images, or

language . . . directed at a specific person, causing substantial emotional

distress to that person and serving no legitimate purpose.” Id. at 1091-

92 (quoting § 784.048(1)(d), Fla. Stat.).

The Third District noted that an injunction should “never be broader

than is necessary to secure to the injured party relief warranted by the

circumstances involved in the particular case.” Id. at 1091 (citing DeRitis

v. AHZ Corp., 444 So. 2d 93, 94 (Fla. 4th DCA 1984)). Further, the court

stated that the “[e]ntry of an overly broad injunction can constitute a

violation of the First Amendment.” Id. The Chevaldina court concluded

by stating that:

Angry social media postings are now common. Jilted lovers,

jilted tenants, and attention-seeking bloggers spew their

anger into fiber-optic cables and cyberspace. But

analytically, and legally, these rants are essentially the

electronic successors of the pre-blog, solo complainant

holding a poster on a public sidewalk in front of an auto

dealer that proclaimed, “DON’T BUY HERE! ONLY LEMONS

FROM THESE CROOKS!” Existing and prospective

customers of the auto dealership considering such a poster

made up their minds based on their own experience and

research. If and when a hypothetical complainant with the

poster walked into the showroom and harangued individual

customers, or threatened violence, however, the previously-

protected opinion crossed the border into the land of

trespass, business interference, and amenability to tailored

injunctive relief. The same well-developed body of law allows

the complaining blogger to complain, with liability for money

damages for defamation if the complaints are untruthful and

satisfy the elements of that cause of action. Injunctive relief

to prohibit such complaints is another matter altogether.

Id. at 1092. Thus, it remains clear that injunctions are not available to

stop someone from uttering insults or falsehoods. See Vrasic v. Leibel,

106 So. 3d 485, 486 (Fla. 4th DCA 2013) (“[I]njunctive relief is not

available to prohibit the making of defamatory or libelous statements.”);

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see also Concerned Citizens for Judicial Fairness, Inc. v. Yacucci, 162 So.

3d 68, 72 (Fla. 4th DCA 2014) (same).

Applying these standards, we consider whether the trial court’s order

enjoining Krapacs from future posting of messages about Bacchus was

an unconstitutional prior restraint on expression covered by the First

Amendment. A regulation of speech that “references” Bacchus is

necessarily a regulation of the subject matter of that speech. The

injunction in this case fully regulates and puts limits on any expression

that relates to a particular subject, i.e., Bacchus. As such, we find that

the portion of the trial court’s order prohibiting Krapacs “from posting

Nisha Bacchus, Nisha Elizabeth Bacchus or any part thereof, on any

social media or internet websites [and Krapacs] shall take down all social

media and internet posts that reference Nisha Bacchus, Nisha Elizabeth

Bacchus, or any part thereof immediately” is overbroad. In line with

First Amendment principles, this court emphasized that an injunction

banning such posts about a person instead of directed at a person is a

prior restraint:

Additionally, we once again caution trial courts to be

hesitant with respect to granting injunctions that restrict

First Amendment Speech. In this case, the trial court placed

a premade stamp on the final order stating that Appellant

“shall not ‘post’ on the internet regarding” Appellee . . .

“Such prohibition by prior restraint violated the

Constitution.”

O’Neil v. Goodwin, 195 So. 3d 411, 414 (Fla. 4th DCA 2016) (citations

omitted).

This court reversed a similar injunction in David v. Textor, 189 So. 3d

871, 874 (Fla. 4th DCA 2016), that banned an appellant not only from

communicating with the alleged victim, Textor, but also from posting

Textor’s information online or communicating with Textor through third

parties. There, this court held that banning someone from posting about

someone else on social media was a prior restraint. Id. at 876. “The

injunction prevents not only communications to Textor, but also

communications about Textor . . . If [appellant’s] communications about

Textor are defamatory, then Textor can sue [appellant] for damages.” Id.

Other than the one episode where Krapacs retagged Bacchus for four

hours, Krapacs did not cross over any hypothetical lines as described in

Chevaldina. See 133 So. 3d at 1092. For instance, she did not go into

Bacchus’s office uninvited (a trespass), harangue her existing clients

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(business interference), or threaten violence (incitement). See id. As the

Third District noted, those actions would clearly not be protected and if

they occurred could be addressed through injunctive relief. See id.

Therefore, we reverse the injunction entered against Krapacs. Even

though injunctive relief is not available to Bacchus at this point, Krapacs

is not necessarily immune from liability for her actions. 2 If Krapacs’

statements and complaints are found to be untruthful and satisfy the

necessary elements for defamation, or if her actions constitute an

intentional infliction of emotional distress, tortious interference with

business relationships, or satisfy the requirements of some other cause

of action, Bacchus has an adequate remedy at law: a civil action against

Krapacs for money damages. See Textor, 189 So. 3d at 874; Yacucci, 162

So. 3d at 72; Vrasic, 106 So. 3d at 486.

Reversed.

GROSS and KUNTZ, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

2Indeed, Krapacs has already faced some consequences for her actions. She

has been disbarred from the Florida Bar and ordered to pay $4,777.40 in costs.

See Florida Bar v. Krapacs, SC19-277, 2020 WL 3869584 at *1 (Fla. July 8,

2020).

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