Gag Order on Hologram USA Founder Alki David Rejected as Unconstitutional

Issue 35 FEA Alki David - H 2012
Christopher Patey

Issue 35 FEA Alki David - H 2012

Tagging someone as Hitler on Instagram doesn't always rise to the level of cyberstalking. So determined a Florida appeals court on Wednesday.

The dispute involves two colorful characters on the forefront of digital entertainment — Hologram USA founder Alki David and Pulse Evolution Corp. chief John Textor — who have been duking it out in court for control of holographic technology used to project an image of the late Michael Jackson at the 2014 Billboard Music Awards.

The full outrageous story of the backstage brawling over the technology that has been used to revive dead stars and allow living ones to be in multiple places can be read here. We'll leave out a lot of the background to discuss the most pertinent aspects of a fascinating dispute that caused a free speech issue, interjection by the ACLU, and today's opinion.

Around the time of the Michael Jackson spectacle at the 2014 Billboard Music Awards, which Textor worked on and for which David demanded credit, the two sides furiously communicated with each other and took their battle to the public.

Textor claimed that David was cyberstalking him based on a text message that stated, "You will be ruined I promise you," an email that promised to release unsavory information about Textor, a press interview where David was quoted as saying he "would have killed [Textor] if he could" and articles about Textor that David tweeted or retweeted.

Plus, there was David's Instagram tagging of a Hitler photo with Textor's name. Not to mention a petition that referred to tweets and Textor's trouble with the state of Florida over the digital studio founded by Avatar director James Cameron.

This led to Textor going to a Florida court to obtain an injunction against David, who responded with the argument that Textor was abusing Florida's cyberstalking statute to gain leverage in the business dispute over holograms.

A state judge sided with Textor, ordering David to "immediately cease and desist from sending any text messages, emails, posting any tweets (including the re-tweeting or forwarding), posting any images or other forms of communication directed at John Textor without a legitimate purpose."

An appeal followed.

"Because we conclude that the conduct alleged in the petition is not cyberstalking and the injunction violates the First Amendment, we reverse," writes judge Martha Warner.

She reads the state's cyberstalking statute and legal precedent and comes to some conclusions about the communications at issue in the case. The guiding principles, she writes, are that courts should narrowly construe whether a communication causes emotional distress, that courts should broadly construe whether a communication serves a legitimate purpose and that "where comments are made on an electronic medium to be read by others, they cannot be said to be directed to a particular person." 

Given these rules of the road, the communications that came directly from David to Textor — texts and emails — are deemed as having a legitimate business purpose that shouldn't have caused distress to a sophisticated businessman. The online postings, though they might have been embarrassing, likewise shouldn't have caused distress, Warner opines. As for the interview, the judge nods to the journalist's note that David was joking. 

Perhaps more importantly, given the possibility that other judges out there might be inclined in other disputes to adopt cyber-gagging orders, Warner writes, "An injunction in this case would also violate First Amendment principles ... Here, the online postings simply provide information, gleaned from other sources, regarding Textor and the many lawsuits against him. The injunction prevents not only communications to Textor, but also communications about Textor. Such prohibition by prior restraint violates the Constitution. If David’s communications about Textor are defamatory, then Textor can sue David for damages."

Here's the full opinion.

David was represented by Gary Betensky and Leslie Metz at Richman Greer, along with co-counsel Ryan Baker from Baker Marquart,