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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.

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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 ...


TOPICS: Culture/Society; Extended News; Front Page News; News/Current Events; US: Florida
KEYWORDS: libel; terri; terrischiavo
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To: IncPen
pulpyteen is not trustworthy, not conservative, and abuses his status as an attorney to chill conservative speakers in this forum

its that simple
81 posted on 10/27/2003 6:12:23 AM PST by Notwithstanding
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To: Chancellor Palpatine
If people are spreading untruth and unchecked incorrect innuendo, then why shouldn't they shut up?

How do we know what's true and what's untrue unless an impartial investigation is done and medical records are opened? We hear Terri's family's side of it --- and we hear her husband side of it and he wants her dead. Neither has been tried in a court of law like OJ Simpson who was not proven guilty. And people still speculate on that after the case has been tried.

82 posted on 10/27/2003 6:14:20 AM PST by FITZ
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To: Notwithstanding
abuses his status as an attorney

Which, based on the pro bono advice he was offering the other night, is questionable as well.

83 posted on 10/27/2003 6:15:28 AM PST by IncPen (So, which of you is a Moderator?)
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To: FITZ; TheAngryClam; ambrose
Neither has been tried in a court of law like OJ Simpson who was not proven guilty.

Where do you think all those court orders and appeals came from? I'll give you three guesses.

84 posted on 10/27/2003 7:44:13 AM PST by Chancellor Palpatine
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To: FITZ
I must have missed it when OJ successfully sued Nicole's landlord for not having steady stairs and thus causing her to fall on a knife.


85 posted on 10/27/2003 8:11:46 AM PST by EllaMinnow
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To: Chancellor Palpatine
...LOL - You're killing me here.

As much as that event might bring much relief to the majority here, I would not wish to give your harpies, to include oneida and the catsmeow, further cause to raise you higher on their shoulder pads.

You act like you want to be taken seriously,

The most common denominator with you and your ugly little clique is your unabashed escape to projection.

...but then you actually believe that the RC annulment process has any bearing whatsoever with the statutory machinations of civil dissolutions?

You are exceptionally careless as best for an attorney, but you may want to rephrase your gem (just for the common folk, you know):

"An RC church annulment is meaningless to civil separation or divorce, nor do civil statutes on annulment follow the same rules as curch annulment.

Now, you have either been careless, deliberately ignorant of the case law, or as I suspect a bit of both compounded by your continued demonstration of pulling everything you need out of your depressing need to be right...much like those thousands of plaintiffs who prevailed in defamation cases.

Say, you're not mochajoke are you?

86 posted on 10/27/2003 10:04:08 AM PST by harrowup (So perfect I'm naturally humble)
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To: Chancellor Palpatine
But put yourself in Terri's family's shoes. The still love her --- she's a daughter and a sister to them. She collapse mysteriously at age 26, they believe she is still responsive in some way with them. If Michael is right ---- she has no brain activity left at all, she's merely a body laying there that thinks nothing, feels nothing, and therefore feels no pain. If the family is right, she is still responding and still can feel pain, sense their presence, see them, hear them.

She requires a little nursing care --- prevention of bed sores, probably a daily bath, some nutrition and fluids ---- but really not much more than that. What is the great harm in leaving her to live? Allowing her family to visit her? Can you imagine the agony of having a child that you've been barred from visiting? Even on his/her deathbed? Even if the family is wrong about Terri's mental ability ---- what is the point in keeping parents from seeing their adult daughter?

Also --- isn't there such thing as a legal annulment? Maybe Bush or the courts could step in and give Michael that so he won't have to worry about his wife being a financial drain on him. For the amount of skilled nursing home care she needs --- I would think a visiting home nurse could provide whatever she needs in 2 hours or so --- it shouldn't cost an extreme amount.
87 posted on 10/27/2003 5:02:17 PM PST by FITZ
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To: FITZ; 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?

Even if her parents were to make a guarantee in writing that MS would not have to pay alimony/maintenance and Terri's future medical bills, the judge in the divorce case would not allow it. The judge would say, "it's against public policy," and order maintenance and payment of all future medical not covered by Medicare.

88 posted on 10/28/2003 9:58:43 AM PST by Catspaw
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To: FITZ
Also --- isn't there such thing as a legal annulment?

A legal annulment would not void any future financial responsibility on the part of MS, even if Terri or MS could get an annulment. An annulment generally voids the marriage based on circumstances at the time of the marriage.

89 posted on 10/28/2003 10:00:52 AM PST by Catspaw
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