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CHRISTOPHER FORREST, and THE FORREST LAW FIRM,
DEUTSCH BANK NATIONAL TRUST CONIPANY,
APPEAL NO. 2D 1 0-5667
Appeal from the Circuit Court of the Twelfth Judicial Circuit Sarasota County, Florida
Lower Tribunal Case No. 2009-CA-7211-NC
INITIAL BRIEF OF APPELLANTS
ANDREA FLYNN MOGENSEN, Esq. Florida Bar No. 0549681
Cooperating Attorney for the
ACLU Foundation of Florida, Inc.,
Law Office of Andrea Flynn Mogensen, P .A. 200 South Washington Boulevard, Ste. 7 Sarasota, FL 34236
RANDALL C. MARSHALL, Esq. Florida Bar No.: 181765
MARIA KAYANAN, Esq. Florida Bar No.: 305601
American Civil Liberties Union
Foundation of Florida, Inc.
4500 Biscayne Boulevard, Suite 340 Miami, FL 33137-3227
JAJ\1ES K. GREEN, Esq.
Florida Bar No. 229466 Cooperating Attorney for the ACLU Foundation of Florida, Inc.
James K. Green, P.A.
222 Lakeview Avenue, Ste. 1650 West Palm Beach, FL 33401
TABLE OF CONTENTS
Table of Citations IV
Preliminary Statement Xl
Statement of the Case 1
A. Introduction............................................................. 1
B. Statement ofFacts............ 2
C. Disposition Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Standard of Review 7
Summary of the Argument 8
Argument and Citations of Authority 9
L THE INJUNCTION IS AN IIvIPERMISSIBLE PRIOR
A. The Posting of the Depositions on the Internet was
Protected Speech 9
B. The Supreme Court has Never Upheld a Prior Restraint 11
C. The Paramount Public Interest in the Foreclosure Crisis 14
1. The Crisis and NTC's role in it 14
2. The public interest in the crisis and the faulty filings ........ 15
3. Public interest in the judicial response to the crisis 19
D. There is No "Manifestly Overwhelming" Need for this
Prior Restraint.. . .. ..... .. .. . .. . . . . .. . . .. .. .. . . .. .. . . . . .. . .. . .. . . . .... 21
1. Privacy concerns of the deponent robo-signers do not support a sweeping ban on publication or dissemination of sworn testimony on matters of great
public interest and importance....................... ......... 22
2. Commercial business interests that seek to shield alleged fraud from national public scrutiny are
insufficient to justify this prior restraint. . . . . . . . . . . . . . ... . . 25
3. Posting and publication of the videotaped depositions
does not compromise the judicial process................. 30
4. Seattle Times is distinguishable........... 32
E. The Injunction is Overbroad and was Improperly Entered
Ex Parte... 35
F. The Depositions are Court Records Available to the Public.. 37
II. THE TRIAL COURT'S FAILURE TO REQUIRE A BOND IS
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 40
Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 41
Certificate of Compliance.. . . . . . . . 42
TABLE OF CITATIONS
Alexander v. United States,
509 U.S. 544 (1993) 9, 11
Angelino v. Santa Barbara Enters., LLC,
2 So.3d 1100 (Fla. 3d DCA 2009) 35
Barron v. Fla. Freedom Newspapers, Inc.,
531 So.2d 113 (Fla. 1988) 37-38
Bartnicki v. Vopper,
532 U.S. 514 (2001) 23
Brayshaw v. City of Tallahassee, Fla.,
709 F. Supp. 2d 1244 (N.D. Fla. 2010) 9, 29
Bridges v. California,
314 U.S. 252 (1941) 29
Butterworth v. State,
494 U.S. 624 (1990) 12
Cape Publications, Inc. v. Hitchner,
549 So. 2d 1374 (Fla. 1989) 23
Carroll v. President & Comm'rs of Princess Anne,
393 U.S. 175 (1968) 7, 13
CBS v. Davis,
510 U.S. 1315 (1994) 13,25-26
City of Sunny Isles Beach v. Temple B 'Nai Zion, Inc.,
43 So.3d 904 (Fla. 3d DCA 2010) 40
Complete Angler, LLC v. City of Clearwater, Fla.,
607 F.Supp.2d 1326 (M.D. Fla. 2009) 10
Cordis Corp. v. 0 'Shea,
988 So.2d 1163 (Fla. 4th DCA 2008) 27
Coulter v. Gerald Family Care, P_ C.,
964 A.2d 170 (D.C. 2009) 26
Cox Broadcasting Corp. v. Cohn,
420 U.S. 469 (1975) 22
Culinary Foods, Inc. v. Raychem Corp.,
151 F .R.D. 297 (N.D. Ill. 1993) 23
Fantasy Book Shop, Inc.,
652 F.2d 1115 (lst Cir. 1981) 10
Federal National Mortgage Assoc. v. Nicolle M Bradbury, et al., Maine District Court, Dist. Nine, Div. of North em Cumberland,
Docket No. BRI-RE-09-65 26-27
First Amendment Coalition v. Judicial Inquiry & Review Bd.,
784 F.2d 467 (3d Cir.1986) 11
Florida Publishing Co. v. Brooke,
576 So.2d 842 (Fla. 1st DCA 1991) 21
Florida High School Activities Ass 'n v. Mander,
932 So.2d 314 (Fla. 2d DCA 2006) 39
Fla. Star v. B.J.F.,
491 U.S. 524 (1989) 12
Gagliardo v. In re: Branam Children,
32 So.3d 673 (Fla. 3d DCA 2010) 13
Gentile v. State Bar of Nevada,
501 U.S. 1030 (1991) 19
Gilbert v. National Enquirer, Inc.,
43 Cal. App. 4th 1135 (2d Dist. 1996) 23
Globe Newspaper Co. v. Superior Court for the County of Norfolk,
457 U.S. 596 (1982) 19
Hathcock v. Hathcock,
533 So.2d 802 (Fla. 1st DCA 1988) 39-40
Herink v. Halper & Row Publishers, Inc.,
607 F. Supp. 657 (S.D. N.Y. 1985) 23
Hotel-Motel Rest. Employees & Bartenders Un. v. Black Angus of Lauderhill, Inc.,
290 So.2d 479 (Fla.1974) 7
Hunter v. Hunter,
36 So.3d 148 (Fla. 2d DCA 2010) 8,37
Izen v. Catalina,
398 F.3d 363 (5th Cir. 2005) 10
Jacksonville Television, Inc. v. Florida Dep't of Health and Rehab. Serv.,
659 So.2d 316 (Fla. 1st DCA 1994) 21
Landmark Communications, Inc. v. Virginia,
435 U.S. 829 (1978) 12, 20-21
Mills v. Alabama,
384 U.S. 214 (1966) 20
Near v. Minnesota,
283 U.S. 697 (1931) 9-11, 13
Nebraska Press Ass'n v. Stuart,
423 U.S. 1327 (1975) 11-13,21,24
New York Times Co. v. United States,
403 U.S. 713 (1971) 12-13
Onewest Bank, FSB v. Drayton,
-- N.Y.S.2d --, 2010 WL 4187065 *2 (N.Y. Super. Ct. Oct. 21, 2010) ....... 1
Organization for a Better Austin v. Keefe,
402 U.S. 415 (1971) 13
Ostergren v. McDonnell,
2008 WL 3895593 (E.D. Va., August 22, 2008) 9
Papachristou v. Jacksonville,
405 U.S. 156 (1972) 35
Petion v. State,
-- So.3d --,2010 WL 4117037 (Fla. Oct. 21, 2010) 31
Pinder v. Pinder,
817 So.2d 1104 (Fla. 2nd DCA 2002) 39
Pizio v. Babcock,
76 So.2d 654 (Fla.1954) 35
Post-Newsweek Stations Orlando, Inc. v. Guetzole,
968 So. 2d 608 (Fla. 5th DCA 2007) 7, 11
Procter & Gamble Co. v. Bankers Trust Co.,
78 F.3d 219 (6th Cir. 1996) 13, 25
Reno v. A CL U,
521 U.S. 844 (1997) 9
Richmond Newspapers v. Virginia,
448 U.S. 555 (1980) 19, 24
Seattle Times Co. v. Rhinehart,
467 U.S. 20 (1984) 32-34
Sec'y of St. ofMd. v. Joseph H Munson Co.,
467 U.S. 947 (1984) 13
SCI Funeral Servs. of Florida v. Light,
811 So. 2d 796 (Fla. 4th DCA 2002) 30-31
Sheehan v. Gregoire,
272 F.Supp.2d 1135 (W.D. Wash. 2003) 9
Smith v. Coalition to Reduce Class Size,
827 So. 2d 959 (Fla. 2002) 7
Smith v. Daily Mail Publishing Co.,
443 U.S. 97 (1979) 22
Southeastern Promotions, Ltd. v. Conrad,
420 U.S. 546 (1975) 13
Spradley v. Old Harmony Baptist Church,
721 So.2d 735 (Fla. 1st DCA 1998) 7,40
The Florida Bar v. Cohen,
2003 WL 23112690 (Fla. 2003) 28
United Farm Workers of Am., AFL-CIO v. Quincy Corp.,
681 So.2d 773 (Fla. 1st DCA 1996) 8,39
Watts v. United States,
394 U.S. 705 (1969) 29
Statutes and Rules
Rule 1.610(b), Fla. R. Civ. P. (2010) 39
Rule 1.610(d), Fla. R. Civ, P. (2010) 7
Rule 2.420(c)(9), Fla. R. Jud. Admin. (2010) 5,37-38
Rule 9. 130(a)(3)(B), Fla. R. App. P. (2010) 8
Louis D. Brandeis, Other People's Money and How the Bankers Use It
92 (1914) 21
Rodney A. SmolIa, Smolla & Nimmer on Freedom of Speech
(3d ed. 1996) § 24:5 35
AG looks into claims of fabricated documents, The Florida Bar News,
Oct. 1, 2010 14
Examining the Consequences of Mortgage Irregularities for Financial Stability and Foreclosure Mitigation,
Congressional Oversight Panel, November Report 16
Florida Remains Second in October Foreclosure Rates,
Sunshine State News, Nov. 11,2010 14
Les Chrisite, Foreclosure scandal impact: Sales dry up,
CNNMoney, Nov. 29, 2010 17
Alan Zibel, Gov't Panel: Foreclosure Mess May Threaten Us. Economy,
Wall Street Journal online edition, Nov. 16,2010 16
Gary Blakenship, Faulty filings hamper clearing foreclosures,
The Florida Bar News, Oct. 1, 2010 14
Letter to Sam Morley, et al., and Memorandum to the Chief Judges of the Circuit Courts of Florida from Chief Justice Charles Canady,
Nov. 17, 2010 19-20
Todd Ruger, Shortcuts on the foreclosure paper trail,
Sarasota Herald Tribune, Nov. 28,2010 15-16
Kris Hundley, Robosigning in Florida foreclosure cases leads to requests for affidavit 'do-overs' in local courts,
St. Petersburg Times, Nov. 17,2010) 15-16
Testimony of Katherine Porter, Robert Braucher Visiting Professor of Law, Harvard Law School Professor of Law, University of Iowa College of Law Before the Congressional Oversight Panel, Hearing on the T ARP
Foreclosure Mitigation Program, Oct. 27, 2010 26
Testimony of Kurt Eggert, Professor of Law, Chapman University School of Law, Problems in Mortgage Servicing From Modification to Foreclosure, Part II, Senate Committee on Banking, Housing, and Urban Affairs, Dec.
1, 2010 18
Statement of Sheila C. Bair, Chairman, FDIC, Problems in Mortgage Servicing From Modification to Foreclosure, Part II, Senate Committee
on Banking, Housing, and Urban Affairs, Dec. 1, 2010 . 18
Written Testimony of Phyllis Caldwell, Chief of Homeownership Preservation Office, U.S. Department of the Treasury, Before the
Congressional Oversight Panel, October 27,2010 17
Gary Blakenship, Faulty filings hamper clearing foreclosures,
The Florida Bar News, Oct. 1, 2010 14-15
Susan Taylor Martin, Tampa Bay companies help lenders transfer home
loans, foreclose, St. Petersburg Times, May 3, 2009 15
Susan Taylor Martin, When 'Bryan J Bly' became (NB, J did he know what
he was signing? St. Petersburg Times, June 10,2010 15
Attorney General Releases Additional Sworn Statements in the Investigations Involving David Stern and Marshall Watson,
Attorney General News Release, Oct. 18, 2010 17
Office of Court Administration, New York Courts First in Country to Institute Filing Requirement to Preserve Integrity of Foreclosure Process,
Oct. 20, 2010 20
Appellant, Christopher Forrest and the Forrest Law Firm will be referred to as "Forrest" and the "Forrest Law Firm," respectively. Appellees National Title Clearing, Inc., and Bryan Bly, Crystal Moore, Dhurata Doko, will be referred to as "NTC" or "NTC Employees," respectively. City Residential Lending, Inc., will be referred to as "CRL." The Appendix will be referred to as "App., Tab _ at _."
STATEMENT OF THE CASE
Barely two days after the Chief Justice of the Supreme Court of
Florida directed Florida courts to ensure transparency in foreclosure
proceedings, the trial court, in a foreclosure proceeding, ordered that sworn
testimony filed with the court evidencing mind-boggling irregularities in
NTC's processing of mortgage instruments be hidden from the public's
view. The sweeping temporary injunction bars Forrest and "all persons
acting in concert" with him or his firm from "posting, publishing,
disseminating, or maintaining materials" from the video depositions of three
NTC employees who have come to be known as "robe-signers."! App., Tab
1. The injunction was entered ex parte, with no bond required, even though
the court had earlier allowed the videotaped depositions to proceed by
denying NTC's Motion for Protective Order, in which NTC did not ask the
court to seal or otherwise prevent distribution or publication of those
depositions. App., Tab 3.
See Onewest Bank, FSB v. Drayton, -- N.Y.S.2d --, 2010 WL 4187065 *2 (N.Y. Super. Ct. Oct. 21, 2010) ("A 'robe-signer' is a person who quickly signs hundreds or thousands of foreclosure documents in a month, despite swearing that he or she has personally reviewed the mortgage documents and has not done so.").
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The depositions contain information that is of great public interest and concern, not only in Florida but nationally, and as set forth below, are readily available to the general public on the internet. The preliminary injunction that not only ordered Forrest to remove the postings but broadly prohibits Forrest and others from publishing or distributing those depositions is a prior restraint that is presumed to violate the First Amendment.
B. Statement of Facts.
On April 28, 2009, Deutsch Bank National Trust filed a mortgage foreclosure action against homeowners Peter and Barbara Morlon ("the homeowners") in the Twelfth Judicial Circuit, Sarasota County, Florida. The complaint also sought to reestablish a lost promissory note. Attorney Christopher Forrest and The Forrest Law Finn entered a notice of appearance on behalf of the homeowners on May 22, 2009, and the case proceeded through discovery.
On October 14, 2010, Forrest gave notice of taking the videotaped depositions of non-party witnesses Crystal Moore, Bryan Bly, Vilma Castro, and Dhurata Doko, employees of Nationwide Title Clearing, Inc. ("NTC" or "NTC Employees"). App., Tab 2. Neither NTC nor its employees are parties to the action below. NTC is a mortgage servicer that had evidence relevant to the defense that the mortgage documents had not been properly assigned;
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as the trial court properly recognized, the NTC employees' depositions are relevant to the homeowners' affirmative defense of fraud. App., Tab 4 at 39.
NTC moved for a protective order on the basis that the depositions - relating to an assignment of a mortgage to City Residential Lending, Inc. ("CRL") - were "a clear effort to engage in a purely harassing and completely irrelevant inquisition." App., Tab 3 at 3, 8, 9, 11. The trial court held a hearing on the motion on October 28, 2010. App., Tab 4. During the course of the hearing, NTC argued that at least one of the NTC Employees had already been the subject of much attention on the Internet as a result of his participation in robo-signing mortgage assignments in violation of Florida statutory requirements. App., Tab 4 at 12. At the October 28 hearing, counsel for NTC and its Employees suggested that Forrest intended to post the depositions on the Internet, but never asked the court to seal the depositions if they were allowed to go forward. Id. at 12. Rather, NTC only sought to prevent the depositions being taken at all. App., Tab 3.
NTC acknowledged that other depositions of its employees, including Mr. Bly, were already available on the Internet; NTC counsel argued: "as you can tell from the public record, Bryan Bly's name is smeared all over the Internet. He is -- every deposition he's taken." App., Tab 4 at 35.
~ 3 -
The trial court denied NTC's motion for a protective order, ruling as
The rules of discovery are quite liberal, and my interpretation is that unless I can be shown a valid -- very valid reason as to why they should not go forward, they should go forward. And I don't know anything about Mr. Bly or any of these other people. I have not read his name specifically. Perhaps he's all over the Internet. I really don't know. And that really is not a concern of mine. There's a complaint here. There's a defense filed wherein fraud is alleged. Not proper assignment of the documents. Perhaps people signed when they didn't have the authority. I'm not painting with a broad brush and accusing everybody of all kinds of things that may be stirred up in the newspaper. All I'm saying is does Mr. Forrest have an opportunity and a right to take these depositions? And I find he does under the Florida Rules of Civil Procedure, because I don't believe that in any way these folks are being harassed or reasonably inconvenienced.
Id. at 40 (emphases added).
The depositions of the NTC Employees occurred on November 4,
2010. According to NTC, Forrest created a YouTube channel on the Internet
on or about November 6, 2010, and uploaded the video depositions between
November ih and 9th• App., Tab 6 at 5.
On November 9, 2010, the homeowners e-filed a "Notice of Filing
Video Depositions" with the clerk of the lower tribunal. App., Tab 5. On
November 12, 2010, NTC filed a Motion for Sanctions and a Motion to
Determine Confidentiality of Court Records. App., Tabs 6 and 7,
respectively. The latter motion sought to seal the videotaped depositions
pursuant to Fla. R. Jud. Admin. 2.420( c )(9) "to prevent further abuse and
harassment of non-party witnesses." App., Tab 7 at 2.
On that same date, the homeowners filed a motion for sanctions, a
response to NTC's motion for sanctions, and a response to the motion to
determine confidentiality of court records. App., Tab 8. The homeowners
denied that Forrest had made any misrepresentations to the trial court at the
hearing on the motion for protective order or that he violated any rule or
ethical obligation in posting the video depositions. The homeowners further
asserted that Forrest possessed a First Amendment right to do so.ld. at 2. On
November 15, 2010, NTC filed a reply to the homeowners' motion for
sanctions. App., Tab 9.
According to a Certification filed by NTC's counsel, on November
17, 2010, the trial court contacted her via e-mail and requested that a one-
hour hearing be set on Friday, November 19th, to hear the pending motions.
App., Tab 10. NTC's counsel learned that Mr. Forrest was traveling outside
of the country and would not return until the following Monday, November
22nd.ld. As NTC's counsel explained:
Because of the Court's unavailability during the week of Thanksgiving, I needed to file the instant emergency motion for temporary injunction as soon as possible to ensure the NonParties could obtain temporary relief until a hearing on the merits on their pending motions.
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I mailed a copy of the emergency motion on November 18,2010 and faxed a copy of the same on November 19,2010 to Christopher Forrest.
On November 19, 2010, NTC filed the Emergency Motion for a
Temporary Injunction. App., Tab 11.
C. Disposition Below.
On November 19, 2010, the trial court entered an ex parte temporary
injunction enjoining "Forrest and The Forrest Law Finn, and all persons
acting in concert with either ... from posting, publishing, disseminating, or
maintaining materials from the video depositions of the NTC Employees[.]
"Forrest was also ordered "to immediately remove the video depositions of
Ms. Moore, Mr. Bly, and Ms. Doko from The Forrest Law Finn "You'Tube''
channel[.]" App., Tab 1 at 2. TIle temporary injunction expressly stated that
"the injunctive relief granted herein does not require a bond." Id.
- 6 -
STANDARD OF REVIEW
Prior restraints are presumed unconstitutional and review is de novo.
See Post-Newsweek Stations Orlando, Inc. v. Guetzole, 968 So. 2d 608, 610 (Fla. 5th DCA 2007). This presumption against prior restraints imposed by injunction is a heavy one. Carroll v. President & Commissioners of Princess Anne, 393 U.S. 175, 181 (1968) (Such injunctions come to the Court "bearing a heavy presumption against constitutional validity.").
Further, where, as here, a trial court's ruling rests on the application of law to undisputed facts, review is de novo. Smith v. Coalition to Reduce Class Size, 827 So. 2d 959 (Fla. 2002).
This Court's review is limited to the legal sufficiency of the pleadings and supporting affidavits. Spradley v. Old Harmony Baptist Church, 721 So.2d 735, 736 (Fla. 1st DCA 1998). The standard of review in a direct appeal of a temporary injunction, where the enjoined party elects not to seek dissolution of the injunction under Rule 1.61 O( d), does not permit an inquiry into the factual matters presented in the underlying case. See, Hotel-Motel Restaurant Employees & Bartenders Union v. Black Angus of Lauderhill, Inc., 290 So.2d 479 (Fla. 1974). However, this Court's review does encompass whether the lower court complied with the requirements of law
when issuing the injunction. United Farm Workers of Am., AFL-CIO v. Quincy Corp., 681 So.2d 773, 776 (Fla. 1st DCA 1996).
This Court has jurisdiction under Rule 9. 130(a)(3)(B), Fla. R. App. P. (2010). See Hunter v. Hunter, 36 So.3d 148, 151 n.1 (Fla. 2d DCA 2010) (appellate court has jurisdiction to review temporary injunction entered by trial court),
SUMMARY OF THE ARGUMENT
The preliminary injunction is a prior restraint on the publication and dissemination of matters of great public importance, and is presumed unconstitutional under the First Amendment. No competing interest has been or can be advanced to support the order to remove the depositions from publication on the internet or to prohibit appellants and others from publishing or distributing them. The preliminary injunction fails to give fair notice of what acts are prohibited. Finally, the preliminary injunction is void on the further ground that it fails to require the posting of a bond.
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I. THE INJUNCTION IS AN IMPERMISSIBLE PRIOR RESTRAINT.
"Temporary restraining orders and permanent injunctions - i.e., court
orders that actually forbid speech activities - are classic examples of prior
restraints." Alexander v. United States, 509 U.S. 544, 550 (1993) (citation
omitted). Such injunctions are "the essence of censorship." Near v.
Minnesota, 283 U. S. 697, 713 (1931).
A. The Posting of the Depositions on the Internet was Protected Speech.
Speech on the internet is entitled to full protection under the First
Amendment. See Reno v. ACLU, 521 U.S. 844, 870 (1997) ("[O]ur cases
provide no basis for qualifying the level of First Amendment scrutiny that
should be applied to this medium [of the internet].").
Forrest's posting of the video depositions on the Internet constituted
speech. Brayshaw v. City of Tallahassee, Fla., 709 F. Supp. 2d 1244 (N.D.
Fla. 2010) (arrestee's unauthorized posting on a website of a police officer's
address and telephone number, which was prohibited conduct under Florida
law, was speech protected by the First Amendment.); Sheehan v. Gregoire,
272 F.Supp.2d 1135, 1139, n. 2, 1145 (W.D. Wash. 2003) (websites are
"analytically indistinguishable from newspaper[s]."); Ostergren v.
McDonnell, 2008 WL 3895593 *9, n.3 (E.D. Va., August 22, 2008) ("Indeed, it might be said that the Internet has taken over the role of traditional print media. It can hardly be contested that there is an ongoing shift away from traditional print media toward the internet."). A prior restraint is a government regulation that limits or conditions in advance the exercise of protected First Amendment activity. Fantasy Book Shop, Inc., 652 F.2d 1115, 1120 (Ist Cir. 1981). A judicial injunction that prohibits speech prior to a determination that the speech is unprotected also constitutes a prior restraint. See Near v. Minnesota, 283 U.S. 697 (1931). Here, the ex parte injunction operates as a prior restraint because it necessarily (and incorrectly) determined that Forrest's publication was unprotected under the First Amendment.
Thus, the injunction violates Forrest's First Amendment rights. "Any form of official retaliation for exercising one's freedom of speech, including prosecution, threatened prosecution, bad faith investigation, and legal harassment, constitutes an infringement of that freedom." Izen v. Catalina,
398 F.3d 363, 367 n. 5 (5th Cir. 2005) (quoting Smith v. Plati, 258 F.3d 1167,1176 (lOth Cir. 2001) (citations omitted)); Complete Angler, LLC v. City of Clearwater, Fla., 607 F.Supp.2d 1326 (M.D. Fla. 2009) (application of sign code requiring removal of marine-therned mural on outside wall of
their bait shop and banner reciting the First Amendment placed over the mural violated First Amendment). Prohibiting Forrest and others from publishing, disseminating, or even "maintaining" sworn testimony on matters of great public importance, which were lawfully obtained during depositions in a civil case and subsequently filed with the Clerk of Court, violates the First Amendment, Neb. Press Ass 'n v. Stuart, 427 U.S. 539, 559 (1976) (quoting Near, 283 U.S. at 713) ("[P]rohibiting ... publication of a news story ... is the essence of censorship.").
B. The Supreme Court has Never Upheld a Prior Restraint.
Prior restraints such as this injunction are presumed unconstitutional.
See Alexander v. United States, 509 U.S. 544, 550 (1993) (describing temporary and permanent injunctions that forbid speech activities as "classic examples of prior restraints"). This presumption exists because "[p ]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights." Neb. Press Ass 'n v. Stuart, 427 U.S. 539, 559 (1976) ("Nebraska Press"). Accord PostNewsweek Stations, 968 So. 2d 608; First Amendment Coalition v. Judicial Inquiry & Review Bd., 784 F.2d 467, 477 (3d Cir.1986) (en bane) ("Any
prior restraint on expression comes to the court with a presumption of
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unconstitutionality."). The temporary injunction is an unconstitutional prior restraint and must be reversed.
Judicial abhorrence and prohibition of prior restraints attach even when there are substantial competing interests at stake. See, e.g., Butterworth v. State, 494 U.S. 624 (1990) (invalidating criminal statute to extent it prohibited witness from disclosing content of witness's grand jury testimony); Fla. Star v. B.J.F., 491 U.S. 524, 533 (1989) ("f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order."); Landmark Commc 'ns, Inc. v. Virginia, 435 U.S. 829 (1978) (invalidating state's criminal statute prohibiting publication of information regarding judicial review commission proceedings); Nebraska Press (invalidating, as improper prior restraint, pretrial gag order prohibiting publication of defendant's confession in highly publicized murder trial, despite state's competing interest in protecting defendant's right to fair trial); New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam) (the "Pentagon Papers" case) (prohibiting injunction, as improper prior restraint, against publication of stolen, classified government documents).
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The Supreme Court "has never upheld a prior restraint, even faced with the competing interest of national security or the Sixth Amendment right to a fair trial." Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 226-27 (6th Cir. 1996) (citation omitted) (emphasis added). In addition to the two seminal cases - New York Times and Nebraska Press - the Supreme COUli has rejected the most extraordinary remedy of a prior restraint even when weighed against significant other interests not present here, such as incitement of unlawful activity, see Carroll v. President & Comm'rs 0/ Princess Anne, 393 U.S. 175 (1968); regulation of obscenity, see Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975); distribution of leaflets and picketing alleged to violate privacy interests, see Organization/or a Better Austin v. Keefe, 402 U.S. 415 (1971); punishment for fraudulent solicitation, see Sec ~v of Sf. of Md. v. Joseph H Munson Co., 467 U.S. 947 (1984); protection from defamation (Near); or the prevention of economic harm to corporations. See CBSv. Davis, 510 U.S. 1315 (1994). See also Gagliardo v. In re: Branam Children, 32 So.3d 673, 674 (Fla. 3d DCA 2010) (gag order, entered in family court proceeding, that prohibited distribution or publication of information relating to children orphaned by high-profile murder, violated First Amendment; "[p]rior restraints on speech
- l3 -
and publication are the most serious and least tolerable infringement on First
C. The Paramount Public Interest in the Foreclosure Crisis.
1. The Crisis and NTC's role in it.
These three NTC Employees are at the center of the current robo-
signing inquiry. NTC is a third-party vendor retained by loan servicers to
bulk-process mortgage assigrunents. The depositions clearly uncovered
practices ofNTC that potentially affect hundreds of thousands of mortgages
across the country.
Florida and its courts are facing an avalanche of foreclosure cases.'
Florida courts are struggling to cope not only with the sheer number of
foreclosure cases,' but also paperwork problems associated with court
filings. See Gary Blakenship, Faulty filings hamper clearing foreclosures,
The Florida Bar News, Oct. 1, 2010, available at http://goo.gllbw8Jt, last
accessed Dec. 8, 2010. In the Twelfth Judicial Circuit alone, a recent review
Florida has the second highest foreclosure rate in the nation with lout of every 155 housing units the subject of a foreclosure filing. See Florida Remains Second in October Foreclosure Rates, Sunshine State News, Nov. 11, 2010, available at http://goo.gl/f22kG, last accessed Dec. 8, 2010.
See, e.g., AG looks into claims of fabricated documents, The Florida Bar News, Oct. 1, 2010, available at http://goo.gl/lRPFL, last accessed Dec. 8, 2010.
concluded that as many as 20 percent of foreclosure cases contained faulty
2. The public interest in the crisis, and the faulty filings.
This crisis has received substantial media attention. Newspapers in
Florida have written extensively about irregularities in the processing of
mortgage foreclosure paperwork and, in particular, the practices ofNTC and
the specific individuals employed by NTC and referenced in this case. See,
e.g. Susan Taylor Martin, Tampa Bay companies help lenders transfer home
loans, foreclose, St. Petersburg Times, May 3, 2009, available at
http://goo.glltvXex, last accessed Dec. 8, 2010. The print media has
specifically explored the practices that are the subject of the deposition
questioning Forrest is restrained from disseminating under the injunction.
See Susan Taylor Martin, When 'Bryan J. Bly ' became 'NB,' did he know
what he was signing? St. Petersburg Times, June 10, 2010, available at
http://goo.glNcVbZ, last accessed Dec. 8, 2010),5 Given the prior media
In describing only part of the problem facing trial courts the Chief Judge Lee Haworth, Twelfth Judicial Circuit, stated that "[w]hat's irritating to me is frankly that the impression is from the Legislature is that the courts are not processing these quickly. Well, the courts can only process them as people comply with the rules[.]" Jd.
See also Todd Ruger, Shortcuts on the foreclosure paper trail, Sarasota Herald Tribune, Nov. 28, 2010, available at http://goo.gl/hjB5X, last accessed Dec. 8, 2010; Kris Hundley, Robosigning in Florida
- 15 -
coverage of these practices and the nationwide attention to this issue, it is
difficult to imagine what irreparable harm could be incurred by additional
publication of similar information,
The consequences of mortgage document irregularities reach beyond
Florida and are the subject of numerous congressional hearings. Three days
before the trial court issued the injunction a Congressional Oversight Panel
released a report calling into question, in a worst-case scenario, 33 million
mortgages nationwide. See Examining the Consequences of Mortgage
Irregularities for Financial Stability and Foreclosure Mitigation,
Congressional Oversight Panel, November Report at 6, available at
http://goo.gl/eielc, last accessed Dec. 8, 2010}("COP Report"). On the same
date, The Wall Street Journal reported that the COP Report called into
question the broader health of the United States financial system, also noting
that Attorneys General in all fifty states along with federal officials have
opened investigations into this issue. See Alan Zibel, Gov't Panel:
Foreclosure Mess May Threaten us. Economy, Wall Street Journal online
edition, Nov. 16, 2010, available at http://goo.gllNitbc, last accessed Dec. 8,
foreclosure cases leads to requests for affidavit 'do-overs' in local courts, St. Petersburg Times, Nov. 17, 2010, available at http://goo.gl/STWad, last accessed Dec. 8,2010.
- 16 -
2010.6 The most recent media reports indicate that the revelation of robo-
signing is the primary reason why foreclosure sales have dried up as
investors consider them too risky given the numerous irregularities. See Les
Chrisite, Foreclosure scandal impact: Sales dry up, CNNMoney, Nov. 29,
2010, available at http://goo.gI/2GX15, last accessed Dec. 8, 2010.
Testimony before the Senate Banking Committee last week revealed
that the robo-signing scandal came to light only as a result of foreclosure
defense attorneys such as Mr. Forrest taking and publishing the depositions
In fact, the Attorney General of the State of Florida created a website and distributed to the public several sworn statements taken by his office "for their alleged involvement in presenting fabricated documents to the courts in foreclosure actions to obtain final judgments against homeowners." See Attorney General Releases Additional Sworn Statements in the Investigations Involving David Stern and Marshall Watson, Attorney General News Release, Oct. 18, 2010, available at http://goo.gl/KybPI, last accessed Dec. 8, 2010. If the Attorney General of the State of Florida can lawfully make sworn statements available to the public on a website, then F orrest can certainly do so as well.
Additionally, the Financial Fraud Enforcement Task Force (FFETF), led by the Department of Justice and with the participation of Treasury's Financial Crimes Enforcement Network (FinCEN), has brought together more than 20 federal agencies, 94 U.S. Attorney's offices and dozens of state and local partners to share information about foreclosure and servicing practices. The FFETF's collaborative efforts are ensuring that the full resources of the federal and state regulatory and enforcement authorities are being brought to bear in addressing this issue. In addition, the FFETF has also been coordinating with state attorneys general in their investigations. See Written Testimony of Phyllis Caldwell, Chief of Homeownership Preservation Office, U.S. Department of the Treasury, Before the Congressional Oversight Panel, October 27, 2010, available at http://goo.gl/geOgL, last accessed Dec. 8,2010.
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of the robo-signers, See Testimony of Kurt Eggert, Professor of Law, Chapman University School of Law, Problems in Mortgage Servicing From Modification to Foreclosure, Part II, Senate Committee on Banking, Housing, and Urban Affairs, Dec. 1, 2010, ("Senate Committee Hearing") at 12-13, available at http://goo.glix99c1, last accessed Dec. 8, 2010 ("The existence of robosigners was discovered by borrowers' attorneys who deposed the servicer employees that signed affidavits for the borrowers' judicial foreclosure cases. When they began questioning the servicer employees charged with supplying testimony about the mortgages, they found that the servicer employees were woefully unprepared even to understand what they were signing, with some not knowing even what an "affidavit" or a "mortgage" was, some admitting they were lying in their affidavits, or that they signed the affidavits without reading or seeing their contents."). See also Statement of Sheila C. Bail', Chairman, FDIC, Senate Committee Hearing, at 4, available at http://goo.gliIS2ix, last accessed Dec. 8, 2010 ("Recent depositions of individuals involved in robe-signing have led to allegations of fraud based on contentions that these individuals signed thousands of documents without Imowledge or verification of the information contained in the filed affidavits.").
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3. Public interest in the judicial response to the crisis.
The judicial system plays a vital part in a democratic state, and the
public has a legitimate interest in its operations. Gentile v. State Bar of
Nevada, 501 U.S. 1030,1035 (1991). Open comment on the affairs of justice
has long been encouraged in our country. Open access to judicial
proceedings "permits the public to participate in and serve as a check upon
the judicial process," which in tum serves to "heighten public respect for
[that] process." Globe Newspaper Co. v. Superior Court for the County of
Norfolk, 457 U.S. 596, 606 (1982). See also Richmond Newspapers Inc. v.
Virginia, 448 U.S. 555, 571 (1980) ("[T]he means used to achieve justice
must have the support derived from public acceptance of both the process
and its results.").
Just two days before the trial COUlt granted the injunction, Chief
Justice Canady issued a memorandum to the chief judges of every judicial
circuit directing that they take steps to ensure mortgage foreclosure
proceedings remain open and accessible to members of the public. In a letter
accompanying the memorandum, Chief Justice Canady stated:
The courts of Florida belong to the people of Florida. The people of Florida are entitled to know what takes place in the courts of this state. No crisis justifies the administrative suspension of the strong legal presumption that state court proceedings are open to the public.
See Letter to Sam Morley, et al., and Memorandum to the Chief Judges of
the Circuit Courts of Florida from Chief Justice Charles Canady, Nov. 17,
2010, available at http://goo.glIF2aC8, last accessed Dec. 8, 2010 ("Canady
Memorandum")." See also, Landmark Communications, Inc. v. Virginia, 435
U.S. 829, 839 (1978) ("the operation of the judicial system itself, is a matter
of public interest."); Mills v. Alabama, 384 U.S. 214, 218 (1966) ("Whatever
In direct response to the robe-signing crisis, the judiciary in the state of New York imposed new filing requirements in foreclosure cases. According to a press release dated October 20, 2010 from the Office of Court Administration:
The new filing requirement was introduced by the Chief Judge in response to recent disclosures by major mortgage lenders of significant insufficiencies - including widespread deficiencies in notarization and "robosigning" of supporting documents - in residential foreclosure filings in courts nationwide. The new requirement is effective immediately and was created with the approval of the Presiding Justices of all four Judicial Departments.
Chief Judge Lippman said, "We cannot allow the courts in New York State to stand by idly and be party to what we now know is a deeply flawed process, especially when that process involves basic human needs-such as a family home-during this period of economic crisis. This new filing requirement will play a vital role in ensuring that the documents judges rely on will be thoroughly examined, accurate, and error-free before any judge is asked to take the drastic step of foreclosure."
See Office of Court Administration, New York Courts First in Country to Institute Filing Requirement to Preserve Integrity of Foreclosure Process, Oct. 20, 201 0 (emphasis added), available at http://goo.gl/2skRf, last accessed Dec. 8,2010.
differences may exist about interpretations of the First Amendment, there is
practically universal agreement that a major purpose of that Amendment was
to protect the free discussion of governmental affairs.").
Clearly, the practices of NTC and its employees are a matter of great
public importance and Forrest was well within his rights. Disclosure serves
the public interest. "Publicity is justly commended as a remedy for social
and industrial diseases. Sunlight is said to be the best of disinfectants." See
Louis D. Brandeis, Other People's Money and How the Bankers Use It 92
It is against the above backdrop that this Court must review the gag
order imposed on Forrest and The Forrest Law Firm.
D. There is No "Manifestly Overwhelming" Need for this Prior Restraint.
NTC offered nothing to meet its heavy burden to demonstrate
justification for a prior restraint. Nebraska Press, 427 U.S. at 559. The
asserted need for prior restraint must be "manifestly overwhelming." See
Jacksonville Television, Inc. v. Florida Department of Health and
Rehabilitative Services, 659 So.2d 316, 317 (Fla. 1 st DCA 1994 ) (citing
Florida Publishing Co. v. Brooke, 576 So.2d 842 (Fla. 1st DCA 1991)
(citing Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 849
(1978) (Stewart, J., concurring)). A prior restraint cannot be sustained absent
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"the highest form of state interest. Prior restraints have been accorded the
most exacting scrutiny in previous cases." Smith v. Daily Mail Publishing
Co., 443 U.S. 97, 102 (1979). NTC did not shoulder that heavy burden, and
the injunction must be vacated.
1. Privacy concerns of the deponent robo-signers do not support a sweeping ban on publication or dissemination of sworn testimony on matters of great public interest and importance.
Privacy concerns advanced by the NTC Employees do not trump the
First Amendment, particularly here, where the deposition transcripts have
been filed and are thus of record, and where the videotaped depositions of
the robo-signers are in the public domain and available for viewing on the
internet. 8 See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)
(holding that publication of rape victim's name, obtained from documents
available in open court, did not give rise to liability for invasion of privacy);
Fla. Star, 491 U.S. 524 (interests in privacy fade when the information
See, e.g.: http://www.youtube.com/watch?y=pkAp YwxTIcu8 (Dhurata Doko, part 1); http://www.youtube.com/watch?v=anOp56mq70k «Dhurata Doko, part 2); http://www.youtube.comlwatch?v=QS-zPBelnVw (Bryan Bly, part 1); http://www.youtube.comlwatch?v=aw7xav-ZUiA (Bryan Bly, part 2); http://www.youtube.comlwatch?v=mwOTqLJfzsA (Crystal Moore, part 1); http://www.youtube.com/watch?v=JaAg5cgDuC4 (Crystal Moore, part 2); http://www.youtube.comlwatch?v=GhJGkMOB5Zc (Crystal Moore, part 3); http://www.youtube.com/watch?v=SY0312agNPE (Crystal Moore, part 4), all last accessed Dec. 8, 2010. Once a video is posted on the Internet, it is a simple matter for anyone to copy and re-post elsewhere. Such posting is beyond the capability of any court to prevent.
involved, the name of a rape victim, already appears in the public record). Accord Cape Publications, Inc. v. Hitchner, 549 So. 2d 1374 (Fla. 1989), appeal dismissed, 493 U.S. 929 (holding that publication of lawfully obtained confidential child abuse information was not actionable under "private-facts tort theory"); Bartnicki v. Vopper, 532 U.S. 514 (2001) (extending constitutional protection to rebroadcast of unlawfully recorded private cell phone conversation on matter of public concern which radio station received from anonymous source with actual knowledge that it had been unlawfully recorded). Cf Culinary Foods, Inc. v. Raychem CO/p., 151 F.R.D. 297, 301 (N.D. Ill. 1993) ("A claim that public disclosure of information will be harmful to a defendant's reputation is not 'good cause' for a protective order."; recognizing that "case law encourages sharing of non-confidential information with other litigants") (emphasis added); Herink v. Halper & Row Publishers, Inc., 607 F. Supp. 657, 660 (S.D. N.Y. 1985) ("Equity will not enjoin a libel."),· Gilbert v. National Enquirer, Inc., 43 Cal. App. 4th 1135, 1144, 51 Cal. Rptr. 2d 91 (2d Dist. 1996) ("[PJrior restraints are not permitted to stop the publication of a defamatory statement. "),
- 23 -
The "harm" that NTC and NTC Employees assert, namely personal
embarrassment and offensive internet posts, or even "veiled death threats,,9 -
App., Tab 11 at 2 - shrinks in comparison to the much more serious
constitutional and national security interests that the Supreme Court has
repeatedly rejected as justifications for a prior restraint on the exercise of
First Amendment rights.
The coverage of the judicial system and the free and open exchange of
information that is of great public concern is one of the most important
functions of the press, which has been described by the Supreme Court as no
less than the "handmaiden of effective judicial administration." Nebraska
Press, 427 U.S. at 559. Thus, any prior restraint on publication, as here, of
sworn testimony taken in a pending case robs the public of information to
which it has a right. While "people in an open society do not demand
infallibility from their institutions ... it is difficult for them to accept what
they are prohibited from observing." Richmond Newspapers, 448 U.S. at 572
NTC and the NTC Employees have no arguable claim that any
constitutional interest would be impaired by continued dissemination and
distribution of the videotaped depositions that are already widely available.
A fair reading of the "veiled death threats," shows that there was no true threat at all. See n. 12, infra.
See note 8, supra. The depositions focus solely on the practices and conduct
of NTC Employees in notarizing mortgage assigmnents and do not delve
into the personal lives of the witnesses.
2. Commercial business interests that seek to shield alleged fraud from national public scrutiny are insufficient to justify this prior restraint.
Allegations of harm to a corporation's commercial interests similarly
fail to support a prior restraint See Procter & Gamble, 78 F.3d at 225. In
Procter & Gamble, the Sixth Circuit reversed two temporary restraining
orders and a permanent injunction against Business Week magazine, which
obtained documents sealed pursuant to a protective order from a law finn
representing the defendant in a business dispute. The materials at issue were
incorporated into memoranda of law and other pleadings, and the appellate
court repeatedly referred to the materials as being sealed. Id. at 223, 225.
The magazine intended to publish an article based on the information, The
appellate court held that "private litigants' interest in protecting their vanity
or their commercial self-interest simply does not qualify as grounds for
imposing a prior restraint. It is not even grounds for keeping the information
under seal, as the District Court ultimately and correctly decided." Id.
Similarly, in CBS, a meat packing company sought a preliminary
injunction against a broadcast station to prohibit the airing of videotape
- 25 -
footage taken at the company's factory as part of an ongoing investigation
into unsanitary practices in the meat industry. 510 U.S. at 1315. The
company argued that broadcast of the footage could result in "significant
economic harm" to its business interests. Id. at 1318. The Supreme Court
rejected economic hanu as an interest sufficient to overcome the
presumption against prior restraints and held that "even if economic harm
were sufficient in itself to justify a prior restraint ... we previously have
refused to rely on such speculative predictions." ld. See also Coulter v.
Gerald Family Care, PC., 964 A.2d 170, 186 (D.C. 2009) ("a prior restraint
on speech that is premised merely on protecting business interests fails first
In Federal National Mortgage Assoc. v. Nicolle M Bradbury, et al.,
No. BRI-RE-09-6510 a Maine district court judge was presented with a
motion for a protective order by GMAC over "the embarrassment GMAC
and its employees have suffered, and will continue to suffer, from the
posting of excerpts from [an employee's] deposition transcript on an Internet
The publication on the Internet of the deposition of a GMAC employee taken in the Bradbury case triggered GMAC's decision to halt foreclosure sales and evictions on foreclosed properties in 23 states. See Testimony of Katherine Porter, Robert Braucher Visiting Professor of Law, Harvard Law School Professor of Law, University of Iowa College of Law Before the Congressional Oversight Panel, Hearing on the T ARP Foreclosure Mitigation Program, Oct. 27, 2010, available at http://goo.gIIlZjCl, last accessed Dec. 8,2010).
blog." See Order on Four Pending Motions at 3, App., Tab 12. The district
court denied the protective order, stating "[t]hat the testimony reveals
corporate practices that GMAC finds embarrassing is not enough to justify
issuance of a protective order." Id.
The commercial interests of NTC, a private company, and any
speculative harm to those interests that could result from Forrest's ability to
publish the depositions, do not justify a prior restraint. Significantly, NTC
and the NTC Employees do not allege that confidential information about
them has been published in violation of some court rule, statute, or
protective order or that the information contained in their depositions is
untrue. Rather, they claim that the injunction was necessary to enjoin Forrest
from "disseminating potentially confidential and private information for the
entire world to see." App., Tab 11 at 5. Nowhere do they identify what the
"potentially" confidential and private information that Forrest has
published. 11 Compare Cordis Corp. v. 0 'Shea, 988 So.2d 1163, 1165 (Fla.
4th DCA 2008) (quashing order allowing sharing of confidential, proprietary
Moreover, the practical futility in NTC's seeking the strong ann of a court order, with its concomitant threat of contempt, is underscored by the power of the Internet. Although Forrest complied with the injunction by removing the Videotaped depositions from Y ou'I'ube, they remain freely available elsewhere, See n. 8, supra. Thus, to the extent that the injunction was intended to prohibit dissemination of "confidential and private information for the entire world to see," it did not do so.
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and trade secret information), The NTC Employees cannot deem private or
confidential their highly controversial work practices that are the subject of
numerous regulatory investigations, congressional scrutiny and media
inquiries - all of which existed before the video depositions even occurred,
The NTC Employees do not allege that Forrest himself made
comments which they find offensive or threatening, as in The Florida Bar v.
Cohen, 2003 WL 23112690 (Fla. 2003), relied on in the ex parte
proceedings below. In Cohen, the attorney himself made "multiple
scandalous and utterly inappropriate statements that ... result[ ed] in nothing
other than humiliation to the target of his outrageous conduct." Id. at *3.
Here, the NTC Employees object to comments and posts made by
anonymous online speakers - not by Forrest. 12
The type of harm alleged by the NTC Employees is plainly inadequate to burden Forrest's free speech rights in posting the video depositions. For example, Cynthia Moore complains that she has been "harassed by the media and the public" and that "[ s ]everal viewers have already posted comments attacking me personally. I have read comments that I find hurtful, embarrassing, and even threatening." See Affidavit of Cynthia Moore, App., Tab 11, Exhibit B at 2. The Internet comments that Moore finds "highly offensive" about her image and likeness includes a post that stated: "AIn I the only one who things (sic) she kinda looks like a chubby Mona Lisa?" App., Tab 11 at 2.
The so-called "veiled death threats" appear to be derived from the following post:
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The complete failure of NTC and the NTC Employees to even attempt to
meet their burden, let alone acknowledge the clear First Amendment
ramifications raised by the injunction.l'' should be grounds alone to dissolve
the temporary injunction. As the United States Supreme Court held in
Bridges v. State of California:
[T]he likelihood, however great that a substantive evil will result cannot alone justify a restriction upon freedom of speech or the press. The evil itself must be "substantial," it must be "serious." And even the expression of "legislative preferences or beliefs" cannot transform minor matters of public inconvenience or annoyance into substantive evils of sufficient weight to warrant the curtailment of liberty of expression.
314 U. S. 252, 262-63 (1941 ) (citations omitted).
[A]nd the nazi soldiers were just following orders as well - no excuse for this bloated paper pusher's criminal behavior. ... So a piece of garbage like this V.P. may just rot in jail for life. Though much of this systematic criminal and/or negligent fraud aimed at fellow countrymen could quite easily be argued by any average attorney to be treason - which of course is an offense punishable by death. Hope I'm a juror."
App., Tab 11, at 2 (emphasis in original). This quote hardly rises to the level of a "true threat." See Watts v. United States, 394 U.S. 705, 707 (1969); Brayshaw v. City of Tallahassee, Florida, 709 F.Supp.2d 1244, 1248 (N.D. Fla. 2010) (holding unconstitutional a Florida statute prohibiting the publication of a police officer's name, address and phone number, in part because there was no true threat).
Although the circuit court recognized that there were First Amendment principles at stake (App., Tab 1 at 2), it took no steps to address those principles when entering the temporary injunction.
For the above reasons, the injunction should be immediately dissolved
as NTC and the NTC Employees have failed to demonstrate irreparable
injury sufficient to warrant a prior restraint on Forrest's speech rights."
3. Posting and publication of the videotaped depositions does not compromise the judicial process.
Neither the judicial process nor any party's right to a fair bench trial is
or would be compromised by the publication or dissemination of the
videotaped depositions. See SCI Funeral Servs. of Florida v. Light, 811 So.
2d 796 (Fla. 4th DCA 2002).15 In SCI, the operators of a cemetery sought to
prevent the public's access to videotaped depositions of cemetery employees
who were alleged to have sole burial plots without sufficient space, buried
remains in the wrong plots, and desecrated remains to conceal their acts. 811
So. 2d at 797. The trial court had ordered the depositions themselves closed
to all but the parties, their attorneys, and a representative of the Attorney
The trial court's prior denial of a protective order further undermines the validity of this injunction. NTC sought a protective order prior to the depositions, specifically raising the ground that Forrest intended to publish the depositions on the Internet, The trial court denied the motion. No rule, statute, or court order prevented Forrest from publishing the videotaped depositions. As demonstrated above, Forrest was free to exercise his First Amendment right to publish the depositions on a matter of great public concern.
In its Motion for Temporary Injunction, NTC relied on SCI Funeral in support of the prior restraint, even though the Fourth District supported the dissemination of videotaped depositions to the press and public. App., Tab 3 at 10.
General's office, "but permitted the media to obtain the transcripts and videotapes of the depositions directly from the court reporter once they were finalized." Id. at 797-98. Insisting that the protective order did not go far enough, the cemetery operators asked the court of appeal to prohibit "all access to discovery information without court approval [as] essential to prevent harm to families whose private burial information will be the subject of the discovery." Id. at 798. In SCI, as here, significant publicity surrounding allegations of wrongdoing had already occurred. Id. Thus, the Fourth District reasoned that even though "there is no First Amendment right of access to pretrial discovery materials .. , it does not necessarily follow that there is a constitutional right to prevent access to discovery." Id. (emphasis in original; citations omitted).
Here, however, unlike in SCI, the trial is heard by the judge, who is the trier of fact, and is presumed to be able to discount inadmissible or highly prejudicial evidence. See Petion v. State, -- So.3d --, 2010 WL 4117037 *11 (Fla. Oct. 21,2010) ("When an appellate court is reviewing a bench trial, it should presume that the trial court judge rested its judgment on admissible evidence and disregarded inadmissible evidence, unless the record demonstrates that the presumption is rebutted through a specific
- 31 -
finding of admissibility or another statement that demonstrates the trial court
relied on the inadmissible evidence.").
4. Seattle Times is distinguishable.
The decision in Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)/6
relied on by NTC in the proceedings below, is distinguishable for at least
two reasons. First, unlike Seattle Times, no protective order had been entered
in this case. As outlined above, the motion for a protective order filed by
In Seattle Times, the newspaper was a defendant in a defamation action brought by Rhinehart, a leader of a religious group, the Aquarian Foundation. The question was whether the newspaper could publish information it had gathered through the pretrial discovery process in the course of that civil litigation, including extensive financial records and information about the identity of the Foundation's donors and members. The United States Supreme Court noted that:
the trial court's order allowing discovery was extremely broad. It compelled respondents - among other things - to identify all persons who had made donations over a 5-year period to Rhinehart and the Aquarian Foundation, together with the amounts donated. In effect the order would compel disclosure of membership as well as sources of financial support.
467 U.S. at 36-37.
The state trial court granted Rhinehart a protective order prohibiting the newspaper from disseminating the financial information obtained in the discovery process. 467 U.S. at 27. The state supreme court reversed. The Supreme Court accepted jurisdiction and reversed, holding that the rights of a party to disseminate information obtained in pretrial discovery can be the subject of a protective order in certain circumstances. Id. at 37.
NTC and the NTC Employees was denied and no appeal was taken. 17 Seattle
Times focused on the freedom of the press to publish pretrial discovery
information rather than, as here, a retroactive gag order prohibiting an
attorney from publishing information that was not the subject of a protective
order and which had already been widely circulated in the media.
Second, and certainly more significant, the nature of the information
at issue in Seattle Times is distinctly different from that presented in this
case. The private financial records and membership lists of a religious
organization should be accorded protection from dissemination absent the
most compelling circumstances. In contrast, the sworn testimony of robo-
signers implicated in a nationwide scandal under investigation by the
attorneys general of 50 states, by Congress, and by numerous federal
agencies IS not deserving of any protection, much less of constitutional
The rubric under which the Supreme Court in Seattle Times analyzed
the question of whether a protective order should be entered involved
- 33 -
consideration of "whether the practice in question furthers an important or
substantial governmental interest unrelated to the suppression of expression
Although NTC complained that the depositions may be placed on the Internet (App., Tab 4 at 12), it did not seek a protective order limiting publication of the depositions. Rather, NTC only sought to prevent the depositions being taken at all - a remedy denied by the trial court.
and whether the limitation of First Amendment freedoms is no greater than is necessary or essential to the protection of the particular goverrunental interest involved." Id. at 32 (internal quotation marks and citations omitted). Under that framework, there was justifiable concern over the protection of sensitive financial information, as well as donor and membership lists, of a religious organization.
Here, by contrast, no private financial or personal information is at stake with the robe-signers. Instead the testimony reveals widespread irregularities in the mortgage foreclosure industry that threaten to undermine the nation's financial health.
Vital social interests are served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its economic safety and measures aimed at assuring its financial security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy.
E. The Injunction is Overbroad and was Improperly Entered Ex Parte.
To be constitutional, a gag order must be reasonably intelligible and
provide a fair notice to all those covered by the order as to what conduct is
permissible and what conduct is prohibited. See; e.g., Papachristou v.
Jacksonville, 405 U.S. 156, 162 (1972), "[O]ne against whom [an
injunction] is directed should not be left in doubt about what he is to do,"
Pizio v. Babcock, 76 So.2d 654,655 (Fla. 1954). See also Angelino v. Santa
Barbara Enters., LLC, 2 So.3d 1100, 1104 (Fla. 3d DCA 2009) (reversing
entry of temporary injunction because vague language rendered the
injunction overly broad).
The order under review gives neither Forrest nor others who may be
swept within its ambit notice of what is forbidden. The order prohibits
"Forrest and The Forrest Law Finn, and all persons acting in concert with
either, [from] posting, publishing, disseminating, or maintaining materials
from the video depositions of the NTC Employees, until further order by this
Court." App., Tab 1 at 2 (emphasis added). "Publication" is a very broad
term, particularly in the defamation arena. Rodney A. Smolla, Smolla &
Nimmer on Freedom of Speech § 24:5 (3d ed. 1996) ("the definition of
'publication' in defamation ... encompasses any communication of the
defamatory statement to someone other than the plaintiff." Read broadly,
- 35 -
Forrest (or anyone acting in concert with him) could not refer to the fact that the depositions took place, the identity of the deponents, or the content of their testimony.
Moreover, the order does not define what it means to act "in cone eli" with Forrest - arguably even this appeal that challenges the constitutionality of the order violates its terms. Nor does the order define the terms "maintain" or the phrase "from the video depositions." Must Forrest destroy the written transcripts and exhibits authenticated during the depositions, or does the order prohibit Forrest "only" from publishing, disseminating, or maintaining the videotapes themselves? Indeed, the order prohibits Forrest and anyone associated with his law firm from even providing copies of the video depositions in response to requests from the media, law enforcement or the general public. Read literally, Forrest is even prohibited from providing a copy to his attorneys, even though they can view the depositions on the internet.
The ex parte nature of the order compounds its vagueness and overbreadth. Had the hearing taken place with Forrest present, he would have been able to raise these matters. There was no need for such an extraordinary proceeding; a trial court should only order relief in an ex parte proceeding where there exists an immediate threat of irreparable injury that
forecloses the opportunity to give reasonable notice. Hunter v. Hunter, 36
So.3d 148, 150 (Fla. 2d DCA 2010). Under no reasonable measure does the
posting of the video depositions constitute "irreparable harm" to the NTC
Employees, who have been the subject of considerable media scrutiny long
before the depositions at issue were taken.
F. The Depositions are Court Records Available to the Public.
On November 9, 2010, Forrest filed a "Notice of Filing Video
Depositions" with the trial court clerk. App., Tab 5. Thereafter, NTC moved
for the entry of an order seeking to have those court records sealed under
Rule 2.420(c)(9), Fla. R. Jud. Admin. In doing so, NTC acknowledged that
the records were "court records" in the title of its "Motion to Determine
Confidentiality of Court Records," App., Tab 7, but made no attempt to
comply with Rule 2.420( c )(9). The temporary injunction must be
immediately dissolved. 18
The Florida Supreme COU1i has held that "both civil and criminal
court proceedings in Florida are public events and adhere to the well-
established common law right of access to court proceedings and records."
Barron v. Fla. Freedom Newspapers, Inc., 531 So.2d 113 (Fla. 1988). The
F or the reasons set forth in Section I, even if the depositions were not part of the court record, Forrest's posting them on the Internet was fully protected by the First Amendment.
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public's right to access to Court records is codified in Fla. R. Jud. Admin.
2.420. Barron emphasized that "a strong presumption of openness exists for
all court proceedings." Further, the Court stated that closure of court
should occur only when necessary (a) to comply with established public policy set forth in the constitution, statutes, rules, or case law; (b) to protect trade secrets; (c) to protect a compelling governmental interest [e.g., national security; confidential informants] ; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.
531 So.2d at 118. Additionally, "before entering a closure order, the trial
court shall determine that no reasonable alternative is available to
accomplish the desired result, and, if none exists, the trial court must use the
least restrictive closure necessary to accomplish its purpose." Id.
In this case, the trial court and NTC followed none of the Supreme
Court's directives set forth in Barron and flatly ignored the public's right of
access to court records. Rather than seek a closure order as it sought to do in
the Motion to Determine Confidentiality of COUli Records, NTC sought and
obtained an ex parte injunction against Forrest and his law firm which is not
only procedurally improper, but also impermissibly broad in scope.
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II. THE TRIAL COURT'S FAILURE TO REQUIRE A BOND IS FATAL.
Even if the order were to survive scrutiny under the First Amendment,
which it cannot, the order nevertheless must be vacated for the fatal absence
the requirement that NTC post a bond, as expressly required by Rule
1.6l0(b), Fla. R. Civ. P. (2010), which states that:
[n]o temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined.
A trial court may not waive the bond requirement or satisfy that
requirement by setting a bond in a nominal amount, F on-est has been
unlawfully enjoined and the trial court failed to require the posting of a bond
as mandated by Rule 1.610(b). See United Farm Workers of Am., AFL-CIO
v. Quincy C01p., 681 So.2d 773, 777 (Fla. 1st DCA 1996) (finding reversible
error in failure to require a bond where Rule 1.610(b) requires bond and no
rule exceptions applies); Florida High School Activities Ass 'n v. Mander,
932 So.2d 314 (Fla. 2nd DCA 2006) (stating that a trial court cannot waive
bond requirement, or satisfy that requirement by setting bond in a nominal
amount); Pinder v. Pinder, 817 So.2d 11 04 (Fla. 2nd DCA 2002) ("Under
the compulsory language of the Rule, the trial court has no discretion to
dispense with the requirement of a bond."); Hathcock v. Hathcock, 533
So.2d 802, 804 (Fla. 1 st DCA 1988). "Failure to do so is reversible error."
Spradley v. Old Harmony Baptist Church, 721 So.2d 735, 738 (Fla. 1st DCA
1998) (citing United Farm Workers 0/ Am., supra.)). See also City a/Sunny
Isles Beach v. Temple B 'Nai Zion, Inc., 43 So.3d 904, 906 (Fla. 3d DCA
2010). Consequently, the temporary injunction was improperly entered and
should be vacated.
Based on the foregoing arguments and authorities, Forrest respectfully
requests that this Court vacate the preliminary injunction.
Cooperating Attorney for the ACLU
Foundation of Florida, Inc.,
Law Office of Andrea Flynn Mogensen, P.A 200 South Washington Boulevard, Suite 7 Sarasota FL 34236
Florida Bar No. 0549681 Andrea@SarasotaCriminalLawyer.com
Is James K. Green
JAMES K. GREEN
Cooperating Attorney for the ACLU Foundation of Florida, Inc.,
Florida Bar No.: 229466
Suite 1650, Esperante' 222 Lakeview Ave
West Palm Beach, Florida 33401-6145 Telephone: 561.659.2029
/s Randall Marshall
RANDALL C. MARSHALL LEGAL DIRECTOR
Florida Bar No.: 181765 firstname.lastname@example.org
MARIA KAY ANAN, ASSOCIATE LEGAL DIRECTOR Florida Bar No.: 305601 email@example.com
American Civil Liberties Union Foundation of Florida, Inc.
4500 Biscayne Boulevard, Suite 340 Miami, FL 33137-3227
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished
by Regular U,S. Mail, via facsimile and via e-mail this 9th day of December,
2010, to: Christopher Denton Forrest, Esq., 1990 Main Street, Suite 750,
Sarasota, FL 34236 (888-608-7613; christopher@forrest-Iaw.com);
Katherine Giddings and Nancy Wallace, Akerman Senterfitt, 106 East
College Ave., Ste. 1200, Tallahassee, FL 32301 (850-325-2526;
katherine,firstname.lastname@example.org, nancy.waIlace@akerman,com); Adina L.
Pollan, 50 North Laura Street, Suite 2500, Jacksonville, Florida 32202 (904-
- 41 -
798-3730; email@example.com); William P. Heller, Las Olas Centre II, 350 East Las Olas Blvd., Suite 1600, Fort Lauderdale, FL 33301 (954- 463-2224; firstname.lastname@example.org); Jessica Conte, Esq., 10004 N Dale Mabry Hwy, Ste 112, Tampa, FL 33618-4421 (813-880-8800; email@example.com); Richard A. Ulrich, Esq., 2940 S. Tamiami Trail, Sarasota, FL 34239-5105 (941-953-2485; firstname.lastname@example.org).
ANDREA FL YNN MOGENSEN, Esq CERTIFICATE OF COMPLIANCE
The undersigned certifies that this brief complies with the font requirements set forth in Rule 9.210(a) 2