Skip to comments.DEFAMATION -- LIBEL: In Florida, Plaintiff Must Prove Falsity
Posted on 10/25/2003 9:22:45 AM PDT by Notwithstanding
Next, in Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 89 L. Ed. 2d 783, 106 S. Ct. 1558 (1986), the court found that at least where a media defendant is concerned, an actionable statement on matters of public concern must be provable as false by the plaintiff before there can be liability under state defamation law. The Hepps court limited its holding to cases involving media defendants and left open the question of the standard for non-media private defendants raising statements of public concern about public figures. n9 This is precisely the issue presented here. That is, this case raises the question of the applicable [*480] standard for an alleged defamed public official by a private defendant on matters of great public concern.
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n9 See Hepps, 475 U.S. at 779 n.4.
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In the absence of any direct precedent from either the United States Supreme Court or Supreme Court of Florida on this issue, I believe that at the very minimum, the standard set forth in the New York Times [**21] line of cases, requiring actual malice, must govern. See Milkovich, 497 U.S. at 20 n.6 ("prior to Hepps, . . . where public official or public figure plaintiffs were involved, the New York Times rule already required a showing of falsity before liability could result." (citations omitted)).
Since actual malice requires more than the mere publication of a falsity, I believe that footnote 6 of the majority's opinion is misplaced. The ultimate issue here is not whether Horan's statements were false, but rather whether Horan knew or "recklessly disregarded" that his statements were false. See Nodar, 462 So. 2d at 806. Thus, it is not necessary, or even desirable, for Barnes to subpoena and depose the attorneys and sitting judges in Monroe County. n10 Moreover, the results of the "opinion poll," embraced by the majority, could not reliably discern the truth or falsity of Horan's assertions regarding Monroe County's judges' and lawyers' opinions of Barnes as a lawyer and/or candidate. See, e.g., Ollman v. Evans, 242 U.S. App. D.C. 301, 750 F.2d 970, 1006 (D.C. Cir. 1984) (a community's opinion of a plaintiff's stature [**22] in the community is incapable of being adjudicated with any expectation of accuracy). (Bork, J., concurring). Accordingly, I believe that such discovery is impermissible and should not be allowed to take place.
Barnes v. Horan, 841 So. 2d 472, 479-480 (Fla. App. , 2002)
Foremost, we think Hepps [ Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S. Ct. 1558, 89 L. Ed. 2d 783 (1986)] stands for the proposition that a statement on matters of public concern must be provable as false before there can be liability under state defamation law, at least in situations, like the present, where a media defendant is involved. (footnote omitted) Thus, unlike the statement, "In my opinion Mayor Jones is a liar," the statement, "In my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin," would not be actionable. Hepps ensures that a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection (footnote omitted).
Next, the Bresler-Letter Carriers-Falwell [**13] line of cases provide protection of statements that cannot "reasonably (be) interpreted as stating actual facts" about an individual. Falwell, 485 U.S., at 50. This provides assurance that public debate will not suffer for lack of "imaginative expression" or the "rhetorical hyperbole" which has traditionally added much to the discourse of our Nation. See id., at 53-55.
The New York Times-Butts and Gertz culpability requirements further ensure that debate on public issues remains "uninhibited, robust, and wide-open," New York Times, 376 U.S., at 270. Thus, HN6where a statement of "opinion" on a matter of public concern reasonably implies false and defamatory facts regarding public figures or officials, those individuals must show that such statements were made with knowledge of their false implications or with reckless disregard of their truth. Similarly, where such a statement involves a private figure on a matter of public concern, a plaintiff must show that the false connotations were made with some level of fault as required by Gertz.
Milkovich, 110 S. Ct. at 2707. Thus, in the instant case [**14] assuming medical costs and insurance are a subject of public concern, which we concede they are, if the statements are capable of being proved false, they are not protected.
Florida Medical Center, Inc. v. New York Post Co., 568 So. 2d 454, 458 (Fla. App. , 1990)
(Excerpt) Read more at 3dca.flcourts.org ...
If George Jones is still alive but John Smith is purposefully seeking to have George's respirator turned off - and the case is widely reported in the news and all three branches of government have taken action on the issue - then you can post "John Smith is a murdering SOB" on a forum that notes on every page that all posts are opinions of the authors - without fear of losing any defamation claim.
I'd like to add ---
The only things that I fear, are God, my parents' and our forebears' trust that we preserve the liberty that they have sacrificed for us and our children, and that without a thoughtful effort to maintain the foundations of our liberty, we will be compelled by sloppy, self-important, and self-absorbed government officials and their servitude, to settle the matter on the field of battle --- because government is failing to adhere to the limits set forth lawfully by the people.
I'm not worried, but given the obvious malice (fervor) of many posters, and their attempts to sound authoritative whether they are or not I'd like to see the dispute between property (reputation) and free speech on the internet addressed by the courts.
Go read the thread.
He rode it for 5+ hours, and fled when the going got tough.
Hasn't been back since. Check it out.
You rang? Or was that some other Dark Lord?
In any event, I agree with Notwithstanding that referring to the hubbie as wanting to murder his wife in this context is an accurate observation
Lord of the Weasels
King of Florida Law and Unacknowledged Aliases...
Whereabouts currently unknown.
Presumably changing screen names...
Since actual malice requires more than the mere publication of a falsity...
If I'm reading that correctly, it would seem to me that if a person believes that someone is trying to commit a heinous act, and thus expresses an opinion as to his character, based on that belief, that there would be no malice involved, since "malice" would inherently require that the speaker know that his statements were false.
So, if this is correct, if you believe that Joe Blow is trying to steal your neighbor's car, and you say "Joe Blow is trying to be a car thief", you cannot be acting out of malice, even if Joe Blow is not trying to steal the car.
To be acting out of malice (if I understand this correctly), you would have to know that he is not trying to steal the car, and then make the claim even though you know it's false.
Is my understanding correct?
Which MS is now, if not then, due to his challenge to Terri's Law.