DEFAMATION -- LIBEL AND SLANDER [Florida Law

DEFAMATION -- LIBEL AND SLANDER

The First Amendment to the Constitution provides a broad right of freedom of speech. However, if a false statement has been made about you, you may have wondered if you could sue for defamation.

Generally, defamation consists of: (1) a false statement of fact about another; (2) an unprivileged publication of that statement to a third party; (3) some degree of fault, depending on the type of case; and (4) some harm or damage. Libel is defamation by the printed word and slander is defamation by the spoken word.

If the statement is made about a public official - for example, a police officer, mayor, school superintendent - or a public figure - that is a generally prominent person or a person who is actively involved in a public controversy, then it must be proven that the statement was made with knowledge that it was false or with reckless disregard for whether the statement was true or false. In other words, the fact that the statement was false is not enough to recover for defamation. On the other hand, if the statement was made about a private person, then it must be proven that the false statement was made without reasonable care as to whether the statement was true or false.

There are a number of defenses available in a defamation action. Of course, if a statement is true, there can be no action for defamation. Truth is a complete defense. Additionally, if the statement is an expression of an opinion as opposed to a statement of fact, there can be no action for defamation. We do not impose liability in this country for expressions of opinion. However, whether a statement will be deemed to be an expression of opinion as opposed to a statement of fact is not always an easy question to answer. For example, the mere fact that a statement is found in an editorial is not enough to qualify for the opinion privilege if the particular statement contained in the editorial is factual in nature.

There is also a privilege known as neutral reporting. For example, if a newspaper reports on newsworthy statements made about someone, the newspaper is generally protected if it makes a disinterested report of those statements. In some cases, the fact that the statements were made is newsworthy and the newspaper will not be held responsible for the truth of what is actually said.

There are other privileges as well. For example, where a person, such as a former employer, has a duty to make reports to other people and makes a report in good faith without any malicious intent, that report will be protected even though it may not be totally accurate.

Another example of a privilege is a report on a judicial proceeding. News organizations and others reporting on activities that take place in a courtroom are protected from defamation actions if they have accurately reported what took place.

If you think you have been defamed by a newspaper, magazine, radio or television station, you must make a demand for retraction before a lawsuit can be filed. If the newspaper, magazine, radio or television station publishes a retraction, you can still file suit, but your damages may be limited. Unless the media defendant acted with malice, bad faith or reckless disregard for the truth or falsity of the story, you can only recover your actual damages. No punitive damages can be assessed in the absence of these elements.

An action for libel or slander must be brought within two years of the time the statements were made. If you wait beyond this two year period, any lawsuit will be barred.

Libel and slander cases are often very complicated. Before you decide to take any action in a libel or slander case, you should consult with an attorney. An attorney can help you decide whether you have a case and advise you regarding the time and expense involved in bringing this type of action.

(updated 12/01)

Hi Calpernia

"The post I was making gets to both liability and damages - people spreading wild statements on the internet as fact without checking them out or having firsthand knowlege, followed by phone calls, emails and faxes (many of which were based on or even contained portions of those wild tales) to the governor and legislators of Florida, who used that information to act in a manner contrary to the legal rights and interests of Michael Schiavo. That doesn't even mention the effect of the bad info bandied about regarding Felos, Greer, experts, conspiracies, UFOs and the Devil's Triangle."

667 posted on 10/24/2003 5:24 PM EDT by Chancellor Palpatine

In regard to the post in question, yes, I think Chancellor Palpatine is distressed that FReepers succeeded in gaining the attention of Florida government officials, who passed Terri's Law in response to thousands of faxes, emails and phone calls expressing concern and outrage; our activism, as you said.

However, I disagree with CP that Michael Schaivo's rights were violated by the passage of Terri's Law, and his belief that "wild tales" told by FReepers resulted in passage of an unconstitutional law.

Terri's case is unique in that she left no written directive specifying a wish to have a feeding tube and hydration removed should she become disabled; her husband and her family hold opposite views about her wish to ever be starved and dehydrated to death; and her husband and her family hold opposite views about her level of awareness, and the circumstances of her initial injury.

Until Jeb Bush intervened, Michael Schaivo had succeeded in getting a death sentence passed based on disputed hearsay evidence, with the help of favorable rulings by Judge Greer which deprived Terri of her rights. She was deprived of a guardian ad litem, she was deprived of basic medical care, rehabilitation therapy, family visitation and Last Rites, all on orders from Michael Scaivo, who has sole control of her fate, and a vested interest in seeing her dead.

Aside from the separate issue of her disputed wish to having nutrition and hydration removed, Schaivo seems to have demonstrated a lack of concern for Terri's rights as a disabled person, in violation of laws designed to protect those rights.

Schaivo has treated Terri as chattel, with the help of Greer, whose rulings ignored the Scaivo's vested interest and possibly suspect motives.

Gov. Jeb Bush has an interest in seeing that no resident of Florida can be put to death by a probate court judge, based on disputed hearsay evidence. When civil litigation can be used to apply a death sentence, in a manner which would be ruled illegal if applied to a convicted murderer ("cruel and unusual punishment," hearsay evidence) there exists an inequity in application of law (civil vs. criminal) which calls for government intervention.

Jeb Bush did not cave in to "wild tales" from overly-emotional FReepers. There is a need for review of the process utilized by Schaivo and Felos which led to her death sentence being passed, against the wishes of her family and quite possibly against the best interests of Terri Schaivo.

Terri is entitled to equal protection under the law. When an injustice occurs, or is in the process of occurring, the Governor is empowered to exercise his authority to prevent the injustice. His intervention was proper and I believe Terri's Law will be upheld, Chancellor Palpatine's warnings notwithstanding.

While that maxim "Ignorance of the law is no excuse." is still the rule, it is less and less of a good rule for the reason given you. It is being questioned in legal circles, in legislation discussions, in discussions of regulation law.

Here is one example from CATO:

The sheer volume of modern law makes it impossible for an ordinary American household to stay informed--and yet the U.S. Department of Justice vigorously defends the old legal maxim that "ignorance of the law is no excuse.'' That maxim may have been appropriate for a society that simply criminalized inherently evil conduct, such as murder, rape, and theft, but it is wholly inappropriate in a labyrinthine regulatory regime that criminalizes activities that are morally neutral. It has been estimated that the number of new enactments by legislative bodies ranging from city councils to Congress is 150,000 per year. At that rate, a conscientious citizen would have to study 410 laws each and every day all year long--a full-time task, to say the least.
Source: http://www.cato.org/pubs/handbook/hb105-22.html

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