In the Supreme Court of Florida David Siegel
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IN THE SUPREME COURT OF FLORIDA DAVID SIEGEL, individually, and WESTGATE RESORTS, LTD., a Florida limited partnership through its general partner, WESTGATE RESORTS, INC., a Florida corporation, Petitioners, CASE NO.: SC04-648 vs. HEATHER LISCHIN, individually, and ANIMAL RIGHTS FOUNDATION OF FLORIDA, INC., a Florida corporation, Respondents. ____________________________________/ On Discretionary Review From the District Court of Appeal of Florida, Fifth District _______________________________________________________________ ___ PETITIONERS’, DAVID A. SIEGEL AND WESTGATE RESORTS, LTD., JURISDICTIONAL BRIEF _______________________________________________________________ ___ By: VICTOR KLINE, ESQ. GREENSPOON, MARDER, HIRSCHFELD, RAFKIN, ROSS & BERGER, P.A. Southtrust Bank Building, Suite 1100 135 West Central Blvd. Orlando, Florida 32801 Telephone No.: (407) 425-6559 Attorneys for Petitioners TABLE OF CONTENTS Page TABLE OF AUTHORITIES............................................................................................i STATEMENT OF THE CASE AND FACTS.................................................................1 SUMMARY OF THE ARGUMENT............................................................................4 ARGUMENT........................................................................................................ .......6 I. THIS COURT HAS DISCRETIONARY JURISDICTION TO REVIEW THE OPINION, RULING THAT THE INJUNCTION VIOLATED THE FIRST AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 4 OF THE FLORIDA CONSTITUTION, BECAUSE THE OPINION EXPRESSLY CONSTRUES A PROVISION OF THE STATE OR FEDERAL CONSTITUTION..............................6 II. THIS COURT ALSO HAS DISCRETIONARY JURISDICTION TO REVIEW THE OPINION, RULING THAT THE INJUNCTION UNCONSTITUTIONALLY ENJOINED RESPONDENTS FROM HARASSING PETITIONERS AT THEIR HOME AND BUSINESS BY PICKETING AND PUBLISHING DEFAMATORY STATEMENTS DESIGNED TO ECONOMICALLY DESTROY PETITIONERS, BECAUSE THE OPINION EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS OF THIS COURT AND OTHER DISTRICTS...................................................................................... ......6 A. Harassment Is Enjoinable.............................................................7 B. Respondents Can Be Enjoined From Picketing And Defamation Designed To Tortiously Interfere With Business Relationships In Order to Economically Destroy Petitioners.................................7 C. Picketing Can Be Regulated Based On Free Speech Standards................................................................................. ..... .8 CONCLUSION.................................................................................................... ........9 CERTIFICATE OF SERVICE...................................................................................10 CERTIFICATE OF COMPLIANCE.........................................................................10 TABLE OF AUTHORITIES CASES Page Azar v. Lehigh Corp., 364 So.2d 860, 861 (Fla. 2d DCA 1978)....................................................................8 Board of County Commissioners v. Boswell, 167 So.2d 866, 867 n.3 (Fla. 1964).................................................................................6 DeRitis v. AHZ Corp., 444 So.2d 93, 94 (Fla. 4th DCA 1984).........................................................................8 Florida Fern Growers Ass’n, Inc. v. Concerned Citizens of Putnam County, 616 So.2d 562, 564 n.1 (Fla. 5th DCA 1993)..............................................................8 Ford Motor Co. v. Kikis, 401 So.2d 1341 (Fla. 1981).........................................................................................5 Frisby v. Schultz, 487 U.S. 474, 108 S Ct. 2495, 101 L.Ed. 2d 420 (1988)............................................9 i Gilbreath v. State, 650 So.2d 10, 12 (Fla. 1995).....................................................................................7, 9 Johnson v. Woman’s Health Center, Inc., 714 So.2d 580 (Fla. 5th DCA 1998), review denied, 719 So.2d 893 (Fla. 1998).......8 Kimball v. Florida Dep’t of Health & Rehabilitation Servc., 682 So.2d 637 (Fla. 2d DCA 1996).............................................................................7 Kirk v. Baker 224 So.2d 311 (Fla. 1969)...........................................................................................6 Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994)....................................................................................................9 Operation Rescue v. Women’s Health Ctr., 626 So.2d 664 (Fla. 1993)...........................................................................................9 Zimmerman v. D.C.A. at Welleby, Inc., 505 So.2d 1371 (Fla. 4th DCA 1987)..........................................................................7 OTHER AUTHORITIES U.S.C.A. Const. Amend. 1..........................................................................................5 Article I, §4, Fla.Const................................................................................................6 ii Article V, §3(b)(3), Fla.Const.....................................................................................5 Fla.R.App.P. 9.030 (2) (A) (ii)....................................................................................5 Fla.R.App.P. 9.030 (2) (A) (iv)...................................................................................5 STATEMENT OF THE CASE AND FACTS This Court has the discretion to decide the question of whether the Fifth District’s Opinion (the “Opinion”) (A.1) correctly construed the constitution by ruling that the trial court’s Temporary Injunction (the “Injunction”) unconstitutionally enjoined 1 picketing and defamation designed to harass, and to tortiously interfere with Petitioners’ business relationships. More than eight years ago the People for the Ethical Treatment of Animals (“PETA”) covertly filmed animal training techniques of Tiger’s Eye Productions (“TEP”). (See Judge Sawaya’s dissent). PETA sent a four minute tape for government agency review (the “Tape”). Id. This Tape wasn’t about Petitioners and Petitioners, who are in the timeshare business, have no relationship to TEP. Id. After the United States Department of Agriculture, the Florida Game and Fresh Water Fish Commission, and the State Attorney very thoroughly investigated TEP, they all found that the alleged violations had not occurred, and they all closed their cases. Id. (Collectively the “Government Findings”). Petitioners hired TEP so their timeshare customers could see exotic animals at their resorts. Id. PETA sent the Tape and the Government Findings to Respondents. Id. To pressure Petitioners into ending its business with TEP, Respondents picketed and published the following statements to customers, potential customers and guests, seven times at Petitioners’ resorts, and five times at David Siegel’s (“SIEGEL”) home: “David Siegel Abuses Animals”; “David Siegel Condones Animal Abuse”; “Westgate Condones Animal Abuse”; “David Siegel Supports Animal Abuse”; “Westgate Supports Animal Abuse”; “Westgate Supports Cat Beater”; and “Now Featuring at 2 Westgate-Animal Abuse.” (See Opinion). HEATHER LISCHIN later wrote a letter (the “Letter”) to SIEGEL’s neighbors claiming that SIEGEL was “supporting animal abuse.” (See Judge Sawaya’s dissent). Petitioners sued to enjoin Respondents’ defamation and tortious interference. The trial court (the “Judge”) entered an Order (the “Order”) which, though not initially enjoining Respondents, found that: Respondents did not abuse animals, condone animal abuse, support animal abuse or know that TEP abused animals; Petitioner’s were not public figures; Petitioners had business relationships with neighbors who received the Letter and with all of the resorts’ customers and guests; ARFF had picketed at the resorts knowing Petitioners’ guests and customers were there; ARFF’s counsel admitted ARFF was trying to interfere with Petitioners’ relationship with TEP; The statements were likely to be found false and defamatory; The Tape resulted in no prosecution and no apparent injury to animals; and Respondents’ admitted they had no evidence that any alleged animal abuse had occurred since the 8 year old Tape. Id. After the Order was entered, Respondents republished some statements which the Judge had already found were likely to be false and defamatory. (See Judge Sawaya’s dissent). ARFF also published the following statements in its website: “LAWSUIT WON’T DETER ARFF” 3 ARFF has been conducting demonstrations at the Westgate Resorts replacing Westgate customer’s views of the resort with disturbing images of tiger beatings and torture. Customers of Westgate will have trouble focusing on timeshare investments after learning just what these animals are forced to endure to get them to perform. We intend to be there on a regular basis to make sure Westgate and their customers don’t forget the pain and torture behind [TEP’s] show. ARFF will be a constant thorn in the side of Westgate until the resort agrees animal cruelty is not an appropriate sales pitch and puts an end to all [TEP’s].” Id. In a post-Order protest at SIEGEL’s home (the “Home”) Respondents again republished statements which the Judge had already found to be false and defamatory. Id. (All the foregoing statements are collectively referred to as the “Statements”). During this protest ARFF’s agents yelled at passersby, videotaped residents, used a megaphone to publish the Statements and stopped traffic.