In the Supreme Court of Florida David Siegel

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. Id. The police and the subdivision security were there. It was “chaotic.” Id.

In entering the Injunction, the Judge found that ARFF admitted:

it was [ARFF’s] express intention that the Pre Litigation Statements and the Post Litigation Statements directly interfere with [Petitioners’’]; contracts and advantageous business relationships in order to economically destroy [Petitioners] (A.1 ¶I.E); and that [ARFF] would continue to publish the Statements at both [Siegel’s] Home and at Westgate Resorts Florida resorts.. in order to economically destroy [Petitioners]. Id.

The Judge also found that: the Statements were false and defamatory; the

Statements were commercial speech and verbal acts-not pure speech-because they were defamatory and were published incident to a separate tortious interference with

4 business relationships; and that the Injunction was implemented to stop the

“harassment” of the visitors, residents and those passing by on the street adjacent thereto. Id.

The Injunction prohibited Respondents from: 1) tortiously interfering with

Petitioners’ business relationships by publishing the Statements to Petitioners actual or prospective customers and guests at the entrance, or within Petitioners’ resorts, and to

SIEGEL’s neighbors at the entrance to or within the subdivision where his Home is located; 2) from picketing at the gates of the subdivision of the Home or the entrance of the resorts, except that five of Respondents’ agents could appear on the opposite side of the road from the resorts and the subdivision where the Home is located; 3) from videotaping any passers-by at the resorts or the Home; 4) from using a mega phone or bull horn at the resorts or the Home; 5) from shouting at passers-by at the resorts or the Home; and 6) from prohibiting the free flow of traffic at the resorts or the

Home. (See Opinion).

SUMMARY OF THE ARGUMENT The Opinion essentially rules that it is unconstitutional to enjoin picketing and defaming a victim, at his home or business, which is admittedly designed to harass and tortiously interfere with a victim’s business relationships in order to economically destroy the victim. This Court has discretionary jurisdiction to review the Opinion

5 under Article V, §3 (b)(3), Fla.Const; Fla.R.App.P. 9.030(2) (A) (ii) and (iv).

Specifically, this Court has discretionary jurisdiction to review the Opinion which holds that the Injunction violated Respondents’ state and federal constitutional right to free speech, because the Opinion expressly construes a provision of the state or federal constitution.

This Court also has discretionary jurisdiction to review the Opinion which rules that it is unconstitutional to enjoin picketing and defamation designed to harass and tortiously interfere with a victim’s business relationships, because the Opinion expressly and directly conflicts1 with decisions of this Court and other districts holding that: 1) harassment may be enjoined because it is not speech; 2) picketing and defamation designed to tortiously interfere with business relationships constitutes enjoinable verbal acts; and 3) regulating picketing is proper because of this State’s interest in protecting its citizens from harassment, and in the well-being, tranquility, and privacy of a citizen’s home which is of the highest order in a free and civilized society.

ARGUMENT

I. THIS COURT HAS DISCRETIONARY JURISDICTION TO REVIEW

1 See Ford Motor Co. v. Kikis, 401 So.2d 1341 (Fla. 1981) (it is not necessary that a district court explicitly identify conflicting decisions in its opinion to create an “express” conflict. Discussions of legal principles applied by a district court supplies sufficient basis for petition for conflict review).

6 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.

This Court has jurisdiction to review the Opinion where the Fifth District construed the constitution. This Court, in Kirk v. Baker, 224 So.2d 311 (Fla. 1969), quoted its earlier opinion of Board of County Commissioners v. Boswell, 167 So.2d

866, 867 n.3 (Fla. 1964), which ruled that this Court had jurisdiction to review a lower court’s opinion that “rested simply upon a reference” to the constitution. As this Court can see from a review of the Opinion (A.1), there is scarcely any part of the Opinion which does not reference the first amendment of the United States constitution or

Article I, Section 4 of the Florida constitution.

A. Harassment Is Enjoinable.

The Opinion ruling that the Injunction, which enjoined harassment by regulating

7 Respondents’ picketing, was unconstitutional, expressly and directly conflicts with decisions of this Court and other districts which enjoined harassment by picketing, because it is wrongful conduct-not protected speech. See Gilbreath v. State, 650 So.2d

10, 12 (Fla. 1995) (prohibiting harassment is not prohibiting speech because harassment is not protected speech) (emphasis added); and Kimball v. Florida Dep’t of Health &

Rehabilitation Servc., 682 So.2d 637 (Fla. 2d DCA 1996) (persons subject to harassment may obtain injunctive relief).

B. Respondents’ Can Be Enjoined From Picketing And Defamation Designed To Tortiously Interfere With Business Relationships In Order To Economically Destroy Petitioners.

The Opinion ruling that the Injunction, which prohibited picketing and defamation designed to tortiously interfere with business relationships was unconstitutional, expressly and directly conflicts with decisions of other districts enjoining the same as verbal acts. See Zimmerman v. D.C.A. at Welleby, Inc., 505 So.2d 1371 (Fla. 4th DCA

1987) (defamatory words uttered in aid of another tort constitute “verbal acts,” and picketing, displaying of signs and defamatory statements constituted both picketing and verbal acts-not pure speech); Florida Fern Growers Ass’n, Inc. v. Concerned Citizens of Putnam County, 616 So.2d 562, 564 n.1 (Fla. 5th DCA 1993) (noting in a case involving tortious interference with a business relationship that “[i]n the event the trial

8 court determines that injunctive relief may lie in this case, the trial court should fashion such injunctive relief as to not prohibit as a prior restraint any activities which fall within ambit of the first amendment”) (citing Zimmerman); DeRitis v. AHZ Corp., 444 So.2d

93, 94 (Fla. 4th DCA 1984) (enjoining libel or slander, and removing defamatory signs where the “essence of both causes is interference, via speech, with a present or prospective business relationship”); and Azar v. Lehigh Corp., 364 So.2d 860, 861

(Fla. 2d DCA 1978) (enjoining a former sales employee from pursuing customers to their hotel rooms and persuading them to rescind their contracts with plaintiff).

C. Picketing Can Be Regulated Based On Free Speech Standards.

The Opinion ruling that the Injunction, which regulated picketing, was unconstitutional, expressly and directly conflicts with decisions of this Court and other districts regulating picketing based on free speech standards. See Johnson v. Woman’s

Health Center, Inc., 714 So.2d 580 (Fla. 5th DCA 1998), review denied, 719 So.2d 893

(Fla. 1998) (wherein the Fifth District quoted Madsen v. Woman’s Health Ctr., Inc.,

512 U.S. 753 (1994), which observed that the significant government interests protected by the temporary injunction in that case included “ensuring the public safety and order, in promoting the free flow of traffic on public streets and sidewalks,...protecting the property rights of all its citizens” and “the State’s strong interest in residential privacy, acknowledged in Frisby v. Schultz, 487 U.S. 474, 108 S Ct. 2495, 101 L.Ed. 2d 420

9 (1988);” Operation Rescue v. Women’s Health Ctr., 626 So.2d 664 (Fla. 1993); and

Gilreath, supra (the “government has a strong and legitimate interest in preventing the harassment of individuals”).

CONCLUSION

For the foregoing reasons Petitioners request the Court to exercise its discretionary review and reverse the Opinion.

Respectfully submitted,

GREENSPOON, MARDER, HIRSCHFELD, RAFKIN, ROSS & BERGER, P.A. Attorneys for Petitioners SouthTrust Bank Building, Suite 1100 135 West Central Boulevard Orlando, Florida 32801 Telephone No. (407) 425-6559

By:______VICTOR KLINE Fla. Bar No.: 438219

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was served by overnight delivery this ____ day of April, 2004 to: THOMAS JULIN,

ESQUIRE, 1111 Brickell Ave., Suite 2500, Miami, FL 33131-3126.

By:______

10 VICTOR KLINE

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the foregoing satisfies the requirements of Rule

9.210 (a)(2), Fla. R. App. P.

By:______VICTOR KLINE