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DEFAMATION -- LIBEL: In Florida, Plaintiff Must Prove Falsity
Third District Court of Appeal ^ | March 28, 2003 | COURT OF APPEAL OF FLORIDA, THIRD DISTRICT

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.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n9 See Hepps, 475 U.S. at 779 n.4.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

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 ...


TOPICS: Culture/Society; Extended News; Front Page News; News/Current Events; US: Florida
KEYWORDS: libel; terri; terrischiavo
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If George Jones is still alive and John Smith has never even been in the same state as George, you can not post "John Smith killed George Jones" without subjecting yourself to a defamation action.

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.

1 posted on 10/25/2003 9:22:46 AM PDT by Notwithstanding
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To: Notwithstanding
Thank you for bothering to look it up.

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.

2 posted on 10/25/2003 9:34:47 AM PDT by First_Salute (God save our democratic-republican government, from a government by judiciary.)
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To: NYer
Please ping.
3 posted on 10/25/2003 9:41:33 AM PDT by Notwithstanding
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To: Notwithstanding
Already posted: http://www.freerepublic.com/focus/f-backroom/1007384/posts

with like 1600 posts.
4 posted on 10/25/2003 9:42:50 AM PDT by freedumb2003 (Peace through Strength)
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To: freedumb2003
no, this is not the bar association drivel that palpatine posted - this is actual 2003 case law from a Florida appellate court
5 posted on 10/25/2003 9:44:37 AM PDT by Notwithstanding
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To: Notwithstanding
This subject hasn't had such play here since the early days of "Bat" Jack Thompson.

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.

6 posted on 10/25/2003 9:44:39 AM PDT by mrsmith
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To: Notwithstanding; Chancellor Palpatine; Jim Robinson
now that the truth of this MATTER HAS BEEN EXPOSED, THE FRAUDULENT THREAD POSTED BY PALPATINE SHOULD BE DELETED!
7 posted on 10/25/2003 10:09:12 AM PDT by ckca
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To: ckca
No, I don't think it should be deleted. It seems a lot of people on the thread needed to get some things off their chests and they all got to do that. Gotta vent the steam or people will explode. Plus, it was just a fun thread, even though the original poster had questionable intentions.
8 posted on 10/25/2003 10:15:57 AM PDT by honeygrl (All of the above is JUST MY OPINION)
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To: honeygrl
I notice that the Dark Lord has yet to answer my questions.

Sure made some people angry.

< snicker >
9 posted on 10/25/2003 10:40:11 AM PDT by IncPen (So, which of you is a Moderator?)
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To: IncPen
I think he went AWOL.
10 posted on 10/25/2003 10:46:56 AM PDT by honeygrl (All of the above is JUST MY OPINION)
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To: IncPen
"I notice that the Dark Lord has yet to answer my questions. "

It's Saturday, get a grip.
11 posted on 10/25/2003 10:49:49 AM PDT by Rebelbase
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To: Rebelbase
It's Saturday, get a grip.

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.

12 posted on 10/25/2003 11:05:12 AM PDT by IncPen (So, which of you is a Moderator?)
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To: IncPen
I notice that the Dark Lord has yet to answer my questions.

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

13 posted on 10/25/2003 3:17:38 PM PDT by SauronOfMordor (Java/C++/Unix/Web Developer === (Finally employed again! Whoopie))
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To: SauronOfMordor
You rang? Or was that some other Dark Lord?

Lord of the Weasels

King of Florida Law and Unacknowledged Aliases...

Whereabouts currently unknown.

Presumably changing screen names...

again....

14 posted on 10/25/2003 3:53:30 PM PDT by IncPen (So, which of you is a Moderator?)
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To: Notwithstanding
...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...

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?

15 posted on 10/25/2003 5:45:12 PM PDT by Don Joe
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To: Don Joe
I would add a caveat: what you say is largely true but only
IF Joe Blow was a public figure or a private figure involved in a matter of public concern.
16 posted on 10/25/2003 6:08:41 PM PDT by Notwithstanding
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To: Calpernia; Canticle_of_Deborah; sfRummygirl
ping
17 posted on 10/25/2003 10:20:32 PM PDT by nickcarraway (www.terrisfight.org)
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To: Notwithstanding
Thanks for posting this.
18 posted on 10/25/2003 10:48:33 PM PDT by Canticle_of_Deborah
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To: Notwithstanding
or a private figure involved in a matter of public concern.

Which MS is now, if not then, due to his challenge to Terri's Law.

19 posted on 10/26/2003 1:15:32 AM PST by HiTech RedNeck
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To: Notwithstanding
Would Terri's situation be considered a matter of public concern even before Terri's Law was passed? The matter of Mike's pushing the court decision okaying Terri's death creating a bad precedent and a blot on the conscience of the nation? This was, and is, an issue bigger than Terri.
20 posted on 10/26/2003 1:21:25 AM PST by HiTech RedNeck
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To: Notwithstanding; msmagoo
Ping. This might make for an interesting thread.
21 posted on 10/26/2003 8:43:45 AM PST by Calpernia (Innocence seldom utters outraged shrieks. Guilt does.)
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To: ckca; Chancellor Palpatine
I do hope you come to this thread Chancellor.
22 posted on 10/26/2003 8:44:33 AM PST by Calpernia (Innocence seldom utters outraged shrieks. Guilt does.)
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To: Calpernia
QED, all he has to say is this - No, I didn't strangle or beat her, I sought court approval for every nickel out of her fund and committed no theft, I didn't enter into a grand conspiracy, and made rehabilitative efforts were taken".

Its akin to having your neighbor go up and down the street with a megaphone saying you're a bestialist - its untrue (I hope) - you deny, the burden shifts, and they have to prove it.

23 posted on 10/26/2003 9:03:46 AM PST by Chancellor Palpatine
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To: Chancellor Palpatine
all he has to say is this

You know him personally? Ask him why he doesn't just get a divorce, move on with his life and new family and just leave Terri to be --- her family can worry about her --- he really doesn't have to.

24 posted on 10/26/2003 9:20:05 AM PST by FITZ
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To: Chancellor Palpatine
Has Michael Schiavo responded publically to the allegations made by the Schindler family?

IMO there is enough evidence to support a belief he is not acting in the best interests of his wife. Do you believe he would benefit from her death?
25 posted on 10/26/2003 9:20:30 AM PST by msmagoo
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To: FITZ
One factor in his decision would be the notion of "lifetime maintenance". This would include picking up every nickel of every whackjob treatment that the Schindlers could ever dream up that wasn't covered by medical insurance (no doubt all dried up by now), or Mediscare (pretty stringent on what it pays). All collectible under the contempt powers of the court, which includes jail time. It doesn't matter what the Schindlers promised - the divorce court would insist on large pay in maintenance, and assign him 100% of those uncovered medicals. To top off the joyous occasion of having this obligation, maintenance is not dischargeable in bankruptcy, and a chapter 7 wouldn't get him out of collection efforts in the future.

And of course, he'd lose the ability to control any aspect of his future medical obligations to her care if he turned it over to the Schindlers, and to them, no expense is too great to them - at least, not so long as somebody else is picking up the check.

26 posted on 10/26/2003 9:31:39 AM PST by Chancellor Palpatine
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To: msmagoo
He has stayed remarkably silent.
27 posted on 10/26/2003 9:32:28 AM PST by Chancellor Palpatine
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To: Chancellor Palpatine
If money is the issue ---Would he leave her alone if there was a guarantee that he would be allowed to cut off all financial support for her in a divorce? I could see why someone might not want to or feel they could pay nursing home costs the rest of their lives especially if the lawsuit money is all gone.

I believe he should be able to just get out and move on. As far as taxpayers ---- we're certainly paying the support for millions of able-bodied who are producing kids and all the rest --- who could work if they wanted, I don't mind my tax dollars paying for someone like Terri.
28 posted on 10/26/2003 9:38:11 AM PST by FITZ
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To: FITZ
That would take more than promises from the parents - it would take a statutory rewrite that would affect thousands of cases for years.
29 posted on 10/26/2003 10:09:53 AM PST by Chancellor Palpatine
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To: Chancellor Palpatine
I take issue with Schiavo and Felo's "right to privacy" position. They claim that 'we should all have the right to determine (medical treatment)....' in rebuttal to Bush's intervention. What their position overlooks is that Michael Schiavo is acting as a proxy for Terri. Terri's actual wishes are not documented, but her family, who arguably knows her better than her husband, says she would want to live. There is no living will. Michael's word is only hearsay, and should be given little weight because he stands to benefit from her death. He reversed his position on her wish to live or die after collecting a hefty million-dollar settlement to pay for her rehabilitation and care. Can you explain why that is not fraudulent, and why he was not removed as her guardian for his conflict of interest?
30 posted on 10/26/2003 10:20:59 AM PST by msmagoo
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To: Chancellor Palpatine
<< Its akin to having your neighbor go up and down the street with a megaphone saying you're a bestialist - its untrue (I hope) - you deny, the burden shifts, and they have to prove it. >>

Yeah, but things like that only happen in real life. Here on the Internet, anything goes--and that seems to be what people use to gauge how laws should work, or how society should behave-probably why they are often surprised when real life won't cooperate.

31 posted on 10/26/2003 10:36:21 AM PST by unsycophant
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To: Chancellor Palpatine
Palpy, you are misleading all concerned. You are purposefully misstating the legal standard.

Given hubby's place at teh center of a matter of public concern, hubby "...must show that such statements were made with knowledge of their false implications or with reckless disregard of their truth."

His denials and claims do not suffice as proof of anything especially given a host of public facts about which opposite conclusions may easily and reasonably be drawn.

Stop grandstanding as a legal sage - you are not.

You are a Culture of Death shill and you are abusing your credentials as member of the bar to shut people up.








32 posted on 10/26/2003 10:37:50 AM PST by Notwithstanding
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To: msmagoo
see 32
33 posted on 10/26/2003 10:38:47 AM PST by Notwithstanding
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To: FITZ
see 32
34 posted on 10/26/2003 10:39:45 AM PST by Notwithstanding
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To: HiTech RedNeck
correctamundo - see 32
35 posted on 10/26/2003 10:40:22 AM PST by Notwithstanding
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To: Calpernia
see 32
36 posted on 10/26/2003 10:40:43 AM PST by Notwithstanding
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To: Chancellor Palpatine
Mr. Schiavo is a lying adulterous scumbag who's using the courts to attempt to finish the job he botched himself.

Let me know if he needs my address to serve me.

L

37 posted on 10/26/2003 10:43:29 AM PST by Lurker (Some people say you shouldn't kick a man when he's down. I say there's no better time to do it.)
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To: Notwithstanding
I think the best thing would be for Michael to be released from his marriage and any financial obligations he has by being married. Once you commit adultery, you have broken your marriage vows --- he shouldn't be "unmarried" in one way -- having a new family going with a live in lover, but still "married" as far as having complete authority over his wife's life.

He may or may-not have remembered something Terri said many years ago, maybe he just thinks he heard her say something ---- memories 14-15 years later aren't always very reliable. She never put anything in writing or apparently told her family or loved ones --- his memory shouldn't be enough to condemn her to death.

38 posted on 10/26/2003 10:47:24 AM PST by FITZ
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To: Chancellor Palpatine
The "actual malice" necessary to overcome constitutional privilege in a defamation action is different from the express malice necessary to avoid the common-law qualified privilege. The elements of "actual malice," and the standard of proof, differ from those of express malice. "Actual malice," which under federal constitutional law must be shown before a public official or public figure may recover for defamation relating to a matter of his official conduct or of public concern, consists of knowledge of falsity or reckless disregard of truth or falsity, and must be shown by clear and convincing evidence. Express malice under the common law of Florida, necessary to overcome the common-law qualified privilege, is present where the primary motive for the statement is shown to have been an intention to injure the plaintiff. The plaintiff need only show this fact by a preponderance of the evidence, the ordinary standard of proof in civil cases.

Where the defense that a defamation case is analyzed under an "actual malice" standard, the judicial characterization of a plaintiff as a public official or public figure has far-reaching consequences. The "actual malice" rule places a very heavy burden of proof upon the public official or public figure who seeks redress for defamation from one who criticizes or discusses the official or public conduct of the plaintiff. Constitutional guarantees require a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice," that is, with knowledge that it was false or with reckless disregard of whether it was false or not. What the "actual malice" rule ultimately protects is defamatory falsehood. No matter how gross the untruth, the "actual malice" rule deprives a defamed public official of any hope for legal redress without proof that the lie was a knowing one or uttered in reckless disregard of the truth.

The "actual malice" rule in defamation cases must apply not only to public officials and public figures but also to private persons defamed in the course of media publications or broadcasts reporting or commenting on or discussing matters of public interest. The purpose of the "actual malice" rule is to remedy the chilling effect which the common-law rule of strict liability for libel and slander might have on the uninhibited vigor of a free press. It exacts a correspondingly high price from the victims of defamatory falsehood. Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the "actual malice" test.

The constitutionally protected right to discuss, comment upon, criticize, and debate, indeed, the freedom to speak on any and all matters is extended not only to the organized media but to all persons.

One who publishes defamatory matter concerning another is not liable for the publication if: (a) the matter is published upon an occasion that makes it conditionally privileged and (b) the privilege is not abused. The law of Florida embraces a broad range of the privileged occasions that have come to be recognized under the common law. A communication made in good faith on any subject matter by one having an interest therein, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, even though it contains matter which would otherwise be actionable, and though the duty is not a legal one but only a moral or social obligation.

If statements are made without express malice, that is, if they are made for a proper purpose in light of the interests sought to be protected by legal recognition of the privilege, then there can be no recovery. The determination that a defendant's statements are qualifiedly privileged eliminates the presumption of malice attaching to defamatory statements by law. The privilege instead raises a presumption of good faith and places upon the plaintiff the burden of proving express malice, that is, malice in fact as defined by the common-law doctrine of qualified privilege.

In cases of qualifiedly privileged publications, the presumption which attends cases not so privileged of malice from the publication of libelous language does not prevail; the burden of proof is changed, and, in order for the plaintiff to recover, he is called upon affirmatively and expressly to show malice in the publisher. This malice may be inferred from the language itself, or may be proven by extrinsic circumstances. While the malice may be inferred from the communication, it is not inferable from the mere fact that the statements are untrue.

Where a person speaks upon a privileged occasion, but the speaker is motivated more by a desire to harm the person defamed than by a purpose to protect the personal or social interest giving rise to the privilege, then it can be said that there was express malice and the privilege is destroyed. Strong, angry, or intemperate words do not alone show express malice; rather, there must be a showing that the speaker used his privileged position to gratify his malevolence. If the occasion of the communication is privileged because of a proper interest to be protected, and the defamer is motivated by a desire to protect that interest, he does not forfeit the privilege merely because he also in fact feels hostility or ill will toward the plaintiff. The incidental gratification of personal feelings of indignation is not sufficient to defeat the privilege where the primary motivation is within the scope of the privilege.

These are all comments made by legal scholars that summarize law that was applied in a Florida Supreme Court Case Nodar v. Galbreath, 462 So. 2d 803 (Fla. , 1984) - which law is still valid today.

40 posted on 10/26/2003 11:19:32 AM PST by Notwithstanding
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To: Notwithstanding
Suzanne, your comments often read like you're very angry about something. It distracts from whatever point(s) you're trying to make.
41 posted on 10/26/2003 12:08:28 PM PST by unsycophant
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To: dasboot
ping
42 posted on 10/26/2003 12:19:41 PM PST by nickcarraway (www.terrisfight.org)
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To: unsycophant
Your timing of that remark was especially bad, given the comprehensive knock-down summary by NWSG that happened to directly precede it!
43 posted on 10/26/2003 12:28:27 PM PST by bvw
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To: Notwithstanding; ambrose; TheAngryClam; onyx; Catspaw; habs4ever; Gringo1; lugsoul; LPM1888; ...
You are a Culture of Death shill and you are abusing your credentials as member of the bar to shut people up.

If people are spreading untruth and unchecked incorrect innuendo, then why shouldn't they shut up? They have nothing of worth to add if thats all they can do.

Seems to me that there is an intrinsic unworthiness to contribute to an untrue smear campaign, even for a cause someone deems ethical. Or do the ends justify the means?

44 posted on 10/26/2003 12:37:28 PM PST by Chancellor Palpatine
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To: Lurker
Hey!

Trust all is well with you and yours.
45 posted on 10/26/2003 12:38:14 PM PST by Askel5
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To: bvw
Notwithstanding likes to play act at psycho lawyerdom, but ain't the real thing.
46 posted on 10/26/2003 12:38:19 PM PST by Chancellor Palpatine
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To: Askel5
Let's see. We have CP, Askel, Lurker and US in the same thread. Looks like I picked the wrong day to quit drinking.
47 posted on 10/26/2003 12:44:09 PM PST by AppyPappy (If You're Not A Part Of The Solution, There's Good Money To Be Made In Prolonging The Problem.)
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To: bvw
I have no idea what you're talking about. Thanks anyway.
48 posted on 10/26/2003 12:45:51 PM PST by unsycophant
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To: AppyPappy
First pint's on me, Pappy.
49 posted on 10/26/2003 12:46:04 PM PST by Askel5
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To: unsycophant
Diversity is good. Just to add to your native confusion.
50 posted on 10/26/2003 12:50:32 PM PST by bvw
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