By: D.T. COLEN / FASP Founder
Last Updated: Monday, May 1, 2017
Innocuous name‑calling and insults do not, under any circumstance, constitute actionable defamation in the State of Florida. The statutes and case law make this very clear. But
many attorneys, and even worse, some trial judges, have shown a complete obliviousness to this aspect of the law.
A rock-solid first indication that you're being hit with a bogus lawsuit should be the plaintiff's inclusion of any expressions of pure opinion in his complaint.
For instance, the defamation lawsuit I am currently defending says that my co‑defendant's use of the word "greedy" is "false."
That, right there, in plain view for all the world to see, represents a complete, manifest, fundamental, and to be perfectly candid, shamefully inexplicable
misunderstanding on the part of both the plaintiff and his attorney of the law.
Problem is, there's nobody at any courthouse in Florida who looks at civil complaints and says to attorneys, "Hey, you can't file this garbage!"
Even more pathetic is that the Florida Bar has nobody on its massive staff to oversee
meritless filings and say to attorneys, "You have a fucking law license, for crying out loud. You should know better than to file this crap!"
As hurtful, heartless, and mean-spirited as it may be to call someone "fat" or "ugly" or "painfully stupid" or to say that a restaurant makes the "absolute most disgusting pizza" you've ever tasted,
doing so is a valid expression of free speech, and therefore, fully protected by both the Constitutions of the United States and Florida.
Everyone is entitled to an opinion. No matter how unpopular. The actual malice standard for public figures aside,
you're permitted to say, without fear of any formal reprisal, that Scott
Fitzgerald was a shitty writer. Or that Michael Jordan sucked at basketball. Or that you find Gisele Bündchen unattractive.
Expressing any of those opinions publicly would most likely result in laughter and ridicule; but, of course, it would be the constitutionally protected
prerogative of anyone on American soil to express that derision back at you.
I quoted the controversial journalist Glenn Greenwald last year during my first summary judgment hearing. Unfortunately, the sentiment fell on deaf ears and my motion was denied.
But it's extremely important for every jurist and attorney to read: "The entire point of the First Amendment is that Americans should be free to express the most
marginalized, repellant, provocative and offensive ideas. Those are the views that are always targeted for suppression.
Mainstream orthodoxies, harmless ideas, and inoffensive platitudes require no protection as they are not, by definition, vulnerable to censorship."
To state a valid claim for defamation in the State of Florida, a plaintiff must present in his complaint an actual false statement.
Something that can be proven true or false by an objective core of evidence.
(Each and every alleged challenged statement must also be specifically contained in the plaintiff's pre-suit notice, a topic on which we will extrapolate
on a separate page of this website).
If I wrote that John Doe was arrested last Saturday night in Boca Raton, Fla., and that he was charged with driving under the influence, a police report from the Palm Beach
County Sheriff's office
could prove the truthfulness of that statement.
Conversely, if Mr. Doe were not arrested, a written statement or oral testimony from the sheriff indicating his department detained no such person on the date in question or in
connection with any such allegations, would prove the falsity of such a statement.
You would hope and like to believe that every trial judge would understand and empathize with a pro se defendant who was being harassed and shaken down by a bogus defamation lawsuit,
and dismiss, sua sponte, any action that does not contain a false statement.
Wishful thinking. That's not how the courts work. Not even close. Many trial judges maintain personal relationships with the attorneys who appear before them. And remember, trial judges
were attorneys before being elected to the bench; so it should come as no surprise to see one attorney look out for another.
Be that as it may, if you are served with a SLAPP in Florida, you must file a motion to dismiss,
as your very first response to the lawsuit, and cite all of the relevant case law. So here it is.
Stembridge v. Mintz 652 So.2d 444 (Fla. Dist. Ct. App. 1995)
"[S]tatements of pure opinion cannot constitute actionable defamation."
Hammond v. Times Publishing Co., 162 So.2d 681, 682 (Fla. 2nd DCA 1964) citing
McCormick v. Miami Herald Publishing Co., 139 So.2d 197, 200 (Fla. 2nd DCA 1962)
"Although truth is a complete defense to a libel action, it is the Plaintiffs who bear the burden of proving that any challenged statements are both defamatory and false, the two
essential elements of any libel claim."
McCormick v. Miami Herald Publishing Co., 139 So.2d at 200-201 affirming dismissal of complaint;
Linafelt v. Beverly Enterprises-Fl., Inc., 745 So.2d 386, 389 (Fla. 1st DCA 1999)
"A defamatory statement is not actionable if the plaintiff[s] cannot allege and prove it is false and thus not even "substantially true."
Byrd v. Hustler Magazine, Inc., 433 So.2d 593 (Fla. Dist. Ct. App. 1983):
"A false statement of fact is the sine qua non for recovery in a defamation action."
That final bit of case law most succinctly makes the case for a speedy dismissal of any libel action that does not contain an objectively false statement.
In plain English, "sine qua non" means something which is absolutely essential. Its literal translation is "[a condition] without which it could not be."
So take your time, copy-and-paste from the plaintiff's complaint all of the expressions of pure opinion that are alleged to be defamatory, and reference the case law in your motion.
Then set your motion for a special set on the judge's calendar (be sure to allow for more than enough time to make your points) and bring to the hearing copies of the case law
for both the judge and opposing counsel.
You should not be penalized by the judge presiding over your case for being pro se. America is a nation of laws; laws that
apply to everyone ‑‑ both the wealthy and the poor, both those represented by
high‑priced attorneys and those representing themselves.
Any judge who denies a motion to dismiss a defamation lawsuit that contains no false statement is abusing his authority;
he is legislating from the bench, and sadly, there probably will not be a whole heck of a lot you can do about it in the short‑term.