media-law-balance

Outline on Media Law from First Amendment Foundation’s Sunshine Seminar in Stuart, FL

Florida Media Law
First Amendment Foundation
Sunshine Seminar at TCPalm
October 22, 2013

Hilary Metz

Mills Metz Law

13385 W. Dixie Hwy.

N. Miami, FL 33161

www.millsmetzlaw.com

hmetz@millsmetzlaw.com

@hilarymetzesq

 

 

 

 

HISTORY OF MEDIA LAW IN FLORIDA
•First Amendment and the Freedom of Speech

The Florida Constitution guarantees freedom of speech.  No state law may be passed stifling freedom of speech of the press.  However, the constitution does provide holding those responsible for abusing these rights, i.e. defamation, which is one of the topics we’ll go through.

Florida’s Court System
•The Florida legislature has divided the state, not only by county lines, but into judicial appellate districts and judicial circuits.

•There are five (5) district court of appeal, and a circuit court in each of twenty (20) circuits.

•The Stuart and West Palm Beach area fall in the Fourth District Court of Appeal, Miami is in the Third District Court of Appeal.

COMMON TERMS RELATING TO LAWSUITS REGARDING MEDIA
•Defamation in general
•Defamation per se
•Private and Public Figures
•Actual Malice and Negligence
•Criminal Libel
•Invasion of Privacy & the Media
•Invasion of Privacy in General
  a. Intrusion Upon Seclusion
  b. Appropriation
  c. Private Facts
  d. False Light Publicity
DEFAMATION IN GENERAL

Elements that you must prove in order to succeed on a defamation claim are:

1. A statement of fact;

2. A defamatory effect from the statement;

3. Identification of the plaintiff as the subject;

4.  Publication to a third person;

5.  Compensable damages to the plaintiff;

6.  Falsity of the statement; and

7.  Requisite fault by the defendant.

In addition to the previous;

A plaintiff must also prove that the defendant at fault for publishing the statements amounted to at least negligence.  Border Collie Rescue v. Ryan, 418 Supp. 2d 1330, 1348 (M.D. Fla. 2006).

Who can be defamed?

•A deceased person……kind of.
•There is a survival statute that allows the personal representative of a decedent to sue if the decedent had a cause of action for defamation when they were still alive.
•Fla. Stat. §46.021
Exceptions to the elements of defamation in Florida:
•In Florida an exception to defamation or another branch of defamation is Defamation Per Se.
•When Courts evaluate whether a statement is defamation “per se” they look to see if the statements, even if a fact, are so egregious that the it could be presumed to have harmed the plaintiff’s reputation.
Exceptions to the elements of defamation in Florida, Cont.:
•Damages are not presumed for defamation per se in lawsuits against media defendants.  *not the case for matters of strictly private concern.
•A statement amounts to defamation per se if it accuses the plaintiff of committing a crime or imputes conduct, characteristics, or other conditions incompatible with their lawful business or profession.
•As of now, it is unclear based on Florida case law whether a blogger or a non-traditional journalist is a “media defendant” for the purpose of this evaluation.
Prerequisite to a Defamation Action
•If intending to file an action for libel or slander against a media defendant, the plaintiff must serve written notice to the media defendant at least 5 days before instituting a civil action for the broadcast or publication.

Retraction

•If a newspaper or a periodical that is published daily or weekly, or a radio or TV station FULLY retracts the libel within 10 days of receipt of the notice of intent to sue,
•AND if the original publication/broadcast was made in good faith, then the plaintiff will only be allowed to recover actual damages as the result of the publication.  Fla. Stat. §770.01
PUBLIC FIGURES
•In Florida, the term “public figure” is construed broadly, for the purpose of determining whether those persons must prove actual malice in order to succeed in a defamation claim.
•The Florida Supreme Court has found police officers, a corrections officer, and administer of a large public hospital as public officials.

In making this determination the courts have looked at factors such as whether someone is a highly visible representative of government authority.

ACTUAL MALICE & NEGLIGENCE
•Generally a private figure bringing a defamation lawsuit must prove that the defendant was at least negligent in their statement regarding the truth or falsity of them.

•Public officials must prove that the defendant acted with actual malice, in other words, the defendant knew at the time that the statements were false or made with disregard that they were false.

CRIMINAL LIBEL
•Chapter 836 of the Florida Statutes still recognizes criminal libel, however the elements of criminal libel are not defined.

•The statute prohibits false statements that harm a bank or other financial institution’s reputation or that accuse of female of being unchaste.

Defenses to Defamation

•Substantial Truth
•Opinion and fair comment privileges
•Fair Reporting Privilege
•Wire Service Defense
•Neutral Reporting Privilege
•Constitutional Privilege
•Defenses to claims of defamation are rooted in the First Amendment’s guarantee of free speech.  John B. McCrory et al, Constitutional Privileges in Libel Law 15 (1994).
•These privileges recognize that in some instances, an individual’s interest in his reputation is subordinate to the constitutional right to publish information freely.  Id.
Supreme Court Cases
•Sullivan Case
•“A rule compelling the critic of officials conduct to guarantee the trust of all his factual assertions…leads to a comparable ‘self-censorship.” Sullivan, 376 U.S. at 279.
•Supreme Court Cases
•Gertz v. Robert Welch, Inc.
•“Under the First Amendment there is no such thing as a false idea.  However pernicious an opinion may seem, we depend for its correction, not on the conscience of judges and juries but on the competition of other ideas.  But there is no constitutional value in false statements of fact.”
•The Neutral Reportage Privilege is not formally recognized by the Florida Supreme Court.
•However, there are two reported cases where lower courts have recognized this privilege.  See Smith v. Taylor County Pub. Co., 443 So.2d 1042, 1044 (Fla. 1st DCA 1983) and Huszar v.Gross, 468 So.2d 512, 515 (Fla. 1st DCA 1985).
•Smith v. Taylor County Pub. Co.,
443 So.2d 1042 (Fla. 1st DCA 1983).
•Smith, a newspaper publisher of “The Taco Times”, filed a complaint for libel against Taylor, a publisher of a competing local newspaper, “The Perry News-Herald.”
•After Smith’s complaint was dismissed for failure to state a cause of action, the 1st District Court of Appeal reversed the order.
•Smith v. Taylor County Pub. Co.
•The suit was based on 3 separate “articles” printed in “The Perry News-Herald.”

•The 2nd article, was a “news story,” printed on December 24, 1980, reporting an alleged physical confrontation between Kenneth Smith and a Buddy Sadler.

•The judge held that the “news story” was protected by the neutral reporting privilege, because the article was a disinterested report of a newsworthy event, which was simply a reprint of statements made by a police officer and Sadler.

•With respect to the column the court determined that “a writer’s opinion about a newsworthy item is a protected privilege.” citing Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

•The judge commented, while the Plaintiffs may not like what is written, the column is the type of commentary protected by Gertz and the cases that have followed.
•Huszar v. Gross
•The trial court dismissed Huszar’s complaint against Gross for libel with prejudice.
•Huszar appealed.
•The Court found that Gross was acting within the course & scope of his employment.
•Furthermore, after a reading of the allegedly libelous newspaper article in question, the court found that is was the type of disinterested and neutral reporting the First Amendment  privilege was intended to protect.
•The Court went on to rule that there is a qualified privilege to make reports of judicial and quasi-judicial proceedings as long as they were accurate, fair, and impartial.
•The article was a report on the status of a lawsuit filed by the Comptroller against Huszar’s client, and of public interest.
•The article at issue “Squabble Over Legal Fees Stalls Rabbit Breeder Case” written by Martin Drummond of the Gainsville Sun.
•Attorney Huszar was refusing to turn over signed settlement documents, claiming that she was owed more than $1,000.00 in legal fees.
•The article quoted several of parties stating that Huszar’s practices were unethical and whatnot.
Statute of Limitations for Defamation
•The statute of limitations for defamation is two (2) years.  Fla. Stat. §95.11(4)(g)
•The single publication rule is applied in Florida.  See Fla. Stat. §770.07
•Jews for Jesus, Inc. v. Rapp
•Although never actually discussed, defamation by implication, is and was recognized by the Court as a cause of action.
•Jews for Jesus, Inc. v. Rapp
•The Jesus Court held that defamation by implication is a tort and a valid variation of defamation.  See Boyles v. Mid-Fla. Television Corp., 431 So.2d 627 (Fla. 5th DCA 1983)(reversing dismissal of libel per se claim based on statements that implied that plaintiff was a suspect in the death of the child, was a habitual tormentor of retarded patients, and had raped a patient in his care).
•Citing the holding of Brown v. Tallahassee Democrat, Inc., 440 So.2d 588 (Fla. 1st DCA 1983) in which the district court of appeal reversed the trial court’s dismissal of the plaintiff’s complaint.
•The facts therein, that defendant published plaintiff’s photograph in a story about a murder in which the plaintiff was not involved but the position of the photograph implied his association with the murder).
•Invasion of privacy is a tort, also brought as a cause of action in civil court.  This claim, as well as defamation, can be tried before a jury, and if prevailing the plaintiff can seek punitive damages.

One who gives publicity to a matter concerning another that places the other before the public in a false lights is subject to liability to the other for invasion of his privacy, if

•(a) the false light in which the other was place would be highly offensive to a reasonable person, and
•(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
•Gannett Co. v. Anderson, 947 So.2d 1 (Fla. 1st DCA 2006).
•Difference between False Light & Defamation
•False Light
•Can be based on statement that is not defamatory.
•It is enough to show that the statement would be highly offensive to a reasonable person.
•Designed to protect an emotional harm.
•Defendant is not afforded an opportunity to correct an error by make a retraction; reporting privileges may or may not apply.
•May be actionable even in absences of malice.
•Generally longer statute of limitations.
Defamation
•Based on false statement
•Defendant published a false statement;

2. about the plaintiff

3. to a third party; and

4.  the falsity of the   statement caused injury   to the plaintiff.

•Defamation affords a remedy for damage to a persons reputation.
•2 year statute of limitations

Gannett Co. v. Anderson, 947 So.2d 1 (Fla. 1st DCA 2006).

•Similarity of False Light & Defamation

•Whether a claim is based on the publication of false facts or the publication of true facts that are stated in such a way as to create a false impression is a distinction of no consequence. Gannett Co. v. Anderson, 947 So.2d 1 (Fla. 1st DCA 2006).
•In either case, the falsity of what the publication communicates is the essence of the claim. Id.
•Although practically all the cases mention false light, libel, and defamation, Florida does NOT actually recognize the tort of False Light, because it is so similar to defamation.
•The Jews for Jesus case held that a false light claim should not be able to be used to get around the protections of the First Amendment which restrict defamation actions.
•Approximately a year ago the Broward Bulldog through founder Dan Christensen filed a complaint in the U.S. District Court against the FBI & the U.S. Justice Department.

•The Herald-Tribune Media Group and the Miami Herald Media Co. have joined the lawsuit asking a federal judge to order FBI officials to release information about a 9/11 investigation in Sarasota.

•The Complaint alleges that information regarding a Saudi Arabian family living in Sarasota linking them to the 9/11 attach’s has been withheld from the media and the public.

Quick Tips for Reporters/Media
•Get permission to be someone’s property as far in advance as possible.  -not always practical, but try.
•Have consent forms with you, consent from owner allowing you on property.
•Do not pretend to be someone you are not.
•Do not obstruct actions of police/paramedics
•Do not act like paparazzi
Resources
•Attorney General’s Office http://www.myfloridalegal.com
•Brechner Center for Freedom of Information
http://www.brechner.org
•First Amendment Foundation http://www.floridafaf.org
•Florida Press Association http://www.flpress.com
•Investigative Reporters and Editors/National Institute for Computer-Assisted Reporting http://www.ire.org
•Media Law Resource Center http://www.medialaw.org
•National Freedom of Information Coalition http://www.nfoic.org
•Reporters Committee for Freedom of the Press
http://www.rcfp.org
•Society of Professional Journalists http://www.spj.org
•Student Press Law Center http://www.splc.org
•The Freedom Forum- First Amendment Center at Vanderbilt University
http://www.freedomforum.org/ http://www.firstamendmentcenter.org

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