Innocence taking refuge in the arms of Justice, (oil on canvas) Elisabeth Louise Vigee-Le Brun (1779)
The Miami Herald reported a developer has filed a $25 million defamation lawsuit against a Miami real estate blogger. The developer claims the blog post, which has been removed (along with the blogger, who was fired) contained false statements about the developer harmful to his reputation, including that the developer went “bankrupt” in the 1980s. The developer says he never went bankrupt. The blogger claims his writing is only his opinion and constitutionally protected free speech.
Since I have not read the post or the complaint, I have no opinion on the likely outcome. But the case provides an opportunity to throw a little legal light on the subject of the First Amendment (my favorite of the top ten Bill of Rights), defamation and blogging. Perhaps it may help some blogger down the road.
First, the right to free speech, although rightfully given enormous elbow room, is not an absolute right; nor is all speech entitled to the same degree of constitutional protection. There are exceptions, where speech can be restricted and prosecuted, including speech creating a “clear and present danger” (yelling “fire” in a crowded real estate conference room); involving national security (leaking the date and location of the Normandy invasion in a phone call to Adolph); “false” commercial speech (the dog store advertising a mutt as a pure breed); or defamation, false statements of fact which harm the reputation of another person (or product, in the form of product disparagement). Since the case involves defamation, let’s take a closer look at what must be proved.
Defamation (libel if written, slander if spoken (remember s for spoken)), is a legal determination which requires proof, by a preponderance of credible evidence (not beyond a reasonable doubt, which is the criminal law standard of proof), of all of these elements:
- a false statement of fact
- published to a third party
- understood as referring to the plaintiff (must be a living person, not a large group)
- made by the defendant
- which harms the reputation of the plaintiff
- if the plaintiff is a public figure, the added element of “actual malice” is required. Actual malice means knowledge of falsity or a reckless disregard for the truth.
In the case at hand, the elements central to winning the case are 1. the false statement of fact and 5. proof of damages to the developer’s reputation. Element 6, actual malice, would make the case harder to win. But that would require the developer to be classified as a “public figure” (more on this later). Malice is why newspapers and tabloids rarely lose libel cases against public figures, such as celebrities. Let’s take a closer look at these elements of proof.
1. False statement of fact.
Truth is a complete defense to a defamation suit. If what the blogger wrote was true, he wins the case. [There are also some privileges (eg. witness testimony) which let's falsity off the hook, but no privilege appears to apply here.]
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. — Supreme Court Justice Powell in Gertz v. Welch (1974)
Opinions are not actionable as defamation. Opinions are not fact. All true champions of free speech recognize that opinions are essential to a free society’s debate of issues and should not be censored, but debated openly (unless you run a blog camp in Arizona). So, if the blogger wrote “in my opinion”, or the court construed the statements as “opinion”, he would be on strong legal ground. But where opinion is mixed with fact, you have to be sure those statements are made in good faith, i.e. with a reasonable basis to believe they are true. The standard of reasonableness is likely lower for a blogger (who could read one report and rely on it as true) than a newspaper, where journalistic standards might require checking multiple sources.
The meaning of bankrupt may be unclear.
I see an issue concerning the definition of the word “bankrupt”. The word implies an inability to manage one’s business affairs– not a good label to pin on a developer, especially during hard economic times. But what does “bankrupt” mean as a statement of fact. There is, of course, the legal notion of filing for bankruptcy for relief from one’s creditors, which the developer claims never happened. But perhaps bankrupt also means insolvent, regardless if one filed for legal relief. [If the blogger used the term "went" bankrupt, it only adds to the difficulty, since it could be argued "went" meant "filed". (Damn, we lawyers can hair split)] .
Even the Florida Supreme Court Committee on Standard Jury Instructions (Civil) had trouble with the word “bankrupt”. Webster offers a definition as one who becomes insolvent (liabilities in excess of assets or the inability to pay debts as they become due). This is not an easy call. In any case, if it comes down to it, the blogger might have to prove bankruptcy in the non-filing context.
5. Harms the reputation
A problem with this element is proving actual damages. If even one buyer withdrew from a purchase after reading the blog post and will state under oath that was the reason, you’ve proven actual damages. Merely claiming “we haven’t sold a unit since that blog post” is speculation, a result that can be attributed to the stock market nose dive, the sub prime debacle, or anything else (I’d blame it on the awful humidity down there). If buyers backed out but did not believe the story, that is not proof that the statements caused the harm to the developer.
Defamation per se.
Like the 7 dirty words, certain false statements are considered defamatory as a matter of law in most states, including Florida — meaning you do not have to prove actual damages. The statements are presumed to be harmful to one’s reputation. These are:
- statements affecting the plaintiff in his profession, trade, business or office (eg took a bribe)
- statements that an unmarried person is unchaste
- statements that a person is infected with a sexually transmitted disease;
- statements that the person has committed a crime of moral turpitude (eg rape)
While being a bankrupt may fit the defamation per se standard as damaging to one’s business reputation, I would not start counting my millions. Courts have awarded $1 as damages absent real “dollars and cents” proof the plaintiff lost business. In addition, if the statement was that the developer was bankrupt in the 1980s, it may not meet the standard, absent proof the blogger wrote the developer is now bankrupt or about to file bankruptcy.
6. Actual malice toward a public figure.
The seminal defamation case concerning a publisher’s liability for false statements about public v. private figures is Gertz v. Welch, decided by the US Supreme Court is 1974 (the vote was close– 5 to 4). The Court held that public figures, like public officials, are required to prove malice in a defamation suit. A private person was not required to prove it against a publisher (in that case a newspaper), even if the false statements involve an issue of public concern.
What makes for a public figure? The Gertz Court said a public figure “invites attention and comment”. Has the developer invited enough local press to be considered a public figure? The Sun Post named the developer one of the Power Developers of South Florida. Whether there is enough evidence to elevate him to public figure status is up to a court to decide. It may be that he is a “limited public figure”, only so far as Miami real estate is concerned. In any case, the question is likely to be argued by the defense. The burden of proof is on the blogger.
The Blogging Lesson to be Learned
Bloggers should be careful to couch all writing as opinion, double check sources and watch it when it comes to private figures. A general disclaimer on all posts may not be a bad idea. Or you can play it safe and just call someone a “dumb ass“.
Related Posts:
Playboy Playmate Sues Blogger for Libel
Author’s Disclaimer: I am an attorney licensed in New York, not Florida. This is not to be taken as a legal opinion on the case (unless someone sends me a check).
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