By: D.T. Colen / FASP Founder
Last Updated: Monday, May 1, 2017
The first few components for a valid claim of defamation that typically come to the minds of jurists and credible attorneys in the State of Florida are
falsity, damages, and pre‑suit notification.
But there actually are a few other requirements that could mean the difference between a defamation action ever being set for trial and being dismissed on its face.
A plaintiff also must allege and prove negligence, damage to his reputation, and that all of the challenged statements specified in his complaint were made or published in a forum where
people would "expect to find facts."
It is the latter of those three requirements that we'll explain on this page.
Of course, the evening national broadcast news programs hosted by David Muir, Lester Holt, and Scott Pelley (formerly Peter Jennings, Tom Brokaw, and Dan Rather during my childhood)
are obvious examples of places where folks would expect to find facts.
Other examples, inarguably, include the non‑editorial pages of iconic American newspapers such as
The Washington Post
, The New York Times
, The Wall Street Journal
, The Los Angeles Times
, and even USA Today
It would be nearly impossible to convince any juror otherwise of the cultural and journalistic importance each of those aforementioned media outlets still maintains
in the United States.
Other examples of places where facts are expected to be found include the pages of law reviews, encyclopedias, websites of companies traded on the NYSE or NASDAQ,
medical journals, Securities and Exchange Commission filings, and the press releases of any publicly elected official or law enforcement agency.
Places that trial courts in SLAPP hearings have ruled do not merit that same reverance are posting forums, social media accounts, homemade websites, and online portals such as Yelp
that encourage visitors to post anonymous reviews of local businesses.
In other words, if some jackanape takes it upon himself to excoriate an individual or business with all sorts of false statements on his Twitter, Facebook, or Instagram page,
it would be just about impossible to assert that a factfinder would look to those silly, unserious platforms for truth.
So if you've been served a defamation lawsuit in Florida (or another state that has adopted meaningful anti-SLAPP legislation), be sure to consider where the statements alleged to be
defamatory were made.
In the defamation lawsuit I am currently defending, I mentioned in my answer that the websites made by my co‑defendant were all
"rank-amateur, rambling, loaded with invective and anger, sloppily crafted, with no elements of design, no citations, no footnotes, and no reference articles
In the event all of this sounds a bit too familiar, you will want to file a Motion To Dismiss the plaintiff's lawsuit as your very first response once you've received
the defamation complaint from his process server.
The case law you will need to incorporate into your MTD appears below. Be sure to print out copies of the case law for both the judge and opposing counsel at your hearing.
Byrd v. Hustler Magazine, District Court of Appeal of Florida, Fourth District 433 So.2d 593
(Fla. Dist. Ct. App. 1983):
"Courts are to view any alleged defamatory statement within the totality of its context and decide whether a factfinder could reasonably determine such a statement to be defamatory in
the context in which it appears."
Cooper v. The Miami Herald Publishing Co., Supreme Court of Florida, Special Division A 159 Fla. 296 (Fla. 1947):
Any challenged statement is to be viewed "not by extremes, but rather as the common mind would naturally understand it."
Byrd v. Hustler Magazine, District Court of Appeal of Florida, Fourth District 433 So.2d 593 (Fla. Dist. Ct. App. 1983);
Owner's Adjustment Bureau, Inc. v. Ott, 402 So.2d 466, 468 (Fla. 3d DCA 1981);
Wolfson v. Kirk, 273 So.2d 774, 778 (Fla. 4th DCA 1973);
Valentine v. C.B.S., Inc., 698 F.2d 430, 432 (11th Cir. 1983);
Nelson v. Associated Press, Inc., 667 F. Supp. 1468, 1477 (S.D. Fla. 1987):
"Florida's courts maintain a 'prominent function' in determining whether statements are defamatory, and if a statement is not capable of a defamatory meaning,
they should not be submitted to a jury."
Chaker v. Mateo, Court of Appeal, Fourth District, Division 1, California, 147 Cal.Rptr.3d 496 (Cal. Ct. App. 2012)
Summit Bank v. Rogers, Court of Appeal, First District, Division 4, California, 142 Cal.Rptr.3d 40 (Cal. Ct. App. 2012):
Any challenged statement must contain "the formality and polish typically found in documents in which a reader would expect to find facts."
Chaker v. Mateo, Court of Appeal, Fourth District, Division 1, California, 147 Cal.Rptr.3d 496 (Cal. Ct. App. 2012):
"With respect to statements posted in a section of the Craigslist Web site entitled 'Rants and Raves,' the court in Summit Bank found that a reader should
be predisposed to view them with a certain amount of skepticism, and with an understanding that they will likely present one-sided viewpoints rather than assertions of provable facts.
[A]ny reader familiar with the culture of ... most electronic bulletin boards ... would know that board culture encourages discussion participants to play fast and loose with facts.
Indeed, the very fact that most of the posters remain anonymous, or pseudonymous, is a cue to discount their statements accordingly."