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Florida’s harassing telephone call statute

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By Pierce Kelley

M. T. of Fowler’s Bluff asks, “I have an ex-boyfriend who is so angry at me because I broke up with him, and put him out of my house, that he keeps calling me and calling me and won’t stop. He leaves nasty messages on my answer machine, too. Is there anything I can do to stop him?”

Dear M.T.:
You ask a very interesting question. It is also extremely relevant because it is a question frequently asked, so there must be a number of people out there who are experiencing similar problems. Here is my response:
Yes, there are things you can do to stop the scorned boyfriend. First of all, I suggest that you begin by writing down each and every contact by date, time and duration. If messages are left on an answer machine, get them onto a hand-held recording device. Once you have a sizable list prepared, contact the Police Department. There are laws against making harassing phone calls, and the laws apply not just to boyfriends, but also to creditors, salesmen and others, too.
Florida Statute 365.16, entitled OBSCENE OR HARASSING TELEPHONE CALLS, reads as follows:

Whoever:
Makes a telephone call to a location at which the person receiving the call has a reasonable expectation of privacy, and during such call makes any comment, request, suggestion, or proposal which is obscene, lewd, lascivious, filthy, vulgar, or indecent, and by such call or such language intends to offend, annoy, abuse, threaten, or harass any person at the called number;
Makes a telephone call, whether or not a conversation ensues, without disclosing his or her identity and with intent to annoy, abuse, threaten, or harass any person at the called number;
Makes or causes the telephone of another to repeatedly or continuously to ring, with intent to harass any person at the called number; or
Makes repeated telephone calls, during which conversation ensues, solely to harass any person at the called number…
Is guilty of a misdemeanor of the second degree.

So, M.T., if you have received phone calls which fit into any of those categories your ex-boyfriend could be guilty of a crime.
However, things are never quite that simple, are they? The courts across the country go to great lengths to protect First Amendment rights of Freedom of Speech. I cite the case of Durie vs. State of Florida, 799 So. 2d 1081 (Fla. 5th DCA 2001) as an example.
In that case, the Court closely examined the facts to determine if the “sole” purpose was to harass, or if there was some legitimate reason for the conversation. The trier of fact had to decide if the caller “intended“ to harass, or if there was a reasonable purpose for the call. The Durie Court specifically said that it is difficult, especially in romantic and family conflicts, which is when many of those repeated unpleasant and heated conversations occur, to determine if the statute has been violated or not.
So, M.T., you will have to prove that he intends to harass you and that is his “sole” purpose in making the calls. In other words, the relationship is over and it isn’t about reconciliation. He is just being abusive to you.
And though you didn’t ask the question, M. T., I believe the potential for abuse is even greater through the use of Facebook, Twitter and e-mails. The difference is that you can print out the offensive material and use that as evidence, whereas in a telephone conversation you are unable to do so and…you cannot tape record a conversation without letting the other side know that you are doing so. That is considered wire-tapping, and that is a much more serious criminal offense. Using a message left on an answer machine is not illegal, nor does someone have an expectation of privacy when posting a Facebook message or sending an unfriendly tweet.
So, if your ex-boyfriend posts something on his Facebook page, for example, which defames you, or tends to harm your reputation in the community by lowering what others think of you or, more broadly, says something that exposes you to hatred, ridicule, contempt or injures your business, reputation or occupation you could file suit for defamation and seek monetary damages.
I hope I have answered your question, M.T., and I hope that you are able to use some of the information provided herein to convince your “ex” to leave you alone. Good luck.
Any readers with specific legal questions for this “Ask a Lawyer” column are invited to submit those questions to the Editor of this newspaper who will pass it along to the attorney. If you need assistance with a consumer matter, such as an unfair and deceptive collection practice, or garnishment of wages, a mortgage foreclosure or other such things, and you cannot afford an attorney, call the Legal Services office closest to you, which provides free legal assistance to qualified individuals, or call the Florida Bar Referral service at 1-800-342-8011. I wish you good luck in obtaining access to our legal system, no matter what your income and asset level might be.

The foregoing was written by attorney Pierce Kelley, who is a member of the Florida Bar Association. The contents reflect his personal opinions and beliefs.