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)
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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 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?
If people are spreading untruth and unchecked incorrect innuendo ....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?
First of all ... is this sort of thing even a problem?
On the earlier thread, I gave two examples of this:
-- my being perpetually "outed" as LaBelleDameSansMerci for a time on FR even though my never having posted under another handle, here or other forums, evidences my real concern for the integrity of online identity.
-- a hypothetical email the wherein the writer was doing just -- instructing others who might ferry the info to "alternate sites", even -- despite what seemed to be the author's personal knowledge that "real lives" were being wrecked in the process.
I never got an answer.
I'd like to hear your thoughts, though, given your defenses of Schiavo. I'm a little sympathetic, turns out. I too have a inkling of what it's like to be Mr. Schiavo ... the subject of some organized internet "FReeping" to smear and/or silence you, "drive [you] round the bend" so to speak.
I can understand their wanting me to STFU, but did their ends justify their means?
Good points all around, Chancellor!
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