EFTA01099134

Filing # 24376381 E-Filed 03/02/2015 04:26:01 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE 15-000072 BRADLEY J. EDWARDS and PAUL G. CASSELL, Plaintiff(s), vs. ALAN M. DERSHOWITZ, Defendant(s). COUNTER-DEFENDANTS' MOTION TO DISMISS COUNTERCLAIM Plaintiffs/Counterclaim-defendants Bradley J. Edwards and Paul G. Cassell, by and through their undersigned counsel, hereby move to dismiss the Counterclaim of defendant/counterclaim-plaintiff Alan M. Dershowitz. Edwards and Cassell have filed a complaint against Dershowitz arising out of Dershowitz's international defamatory assault on Edwards and Cassell. In response, Dershowitz has filed a counterclaim alleging two counts of defamation by Edwards and Cassell: Count I, concerning statements in a pleading filed in federal court; and Count II, concerning Edwards and Cassell's alleged adoption of those statements in comments to various media sources. As a matter of law, the Court must dismiss Dershowitz's Counterclaim. With regard to Count I, the statements Edward and Cassell filed in federal court on behalf of their client are absolutely protected under the litigation privilege. With regard to Count II, the limited statements are not EFTA01099134 Edwards, Bradley vs. Dershowitz Case No.: CACE 15-000072 Counter-Defendants' Motion to Dismiss Counterclaim defamatory and, in any event, are protected under both the fair report privilege and the litigation privilege. BACKGROUND The events underlying this defamation case arise from a lawsuit filed by attorneys Edwards and Cassell in 2008 in the U.S. District for the Southern District of Florida on behalf of two clients, Jane Doe No. 1 and Jane Doe No. 2. These two women alleged that they had been sexually abused by a wealthy Palm Beach financier, Jeffrey Epstein, and that the federal government had reached a secret plea arrangement with him preventing his federal prosecution for those crimes. The two victims alleged that this arrangement violated their rights under the Crime Victims Rights Act (CVRA), 18 U.S.C. § 3771. The case has moved forward through various discovery proceedings and other events, with the victims prevailing against efforts by the federal Government and Jeffrey Epstein to end the case or prevent discovery into the surrounding circumstances. See, e.g., Does v. United States, 817 F.Supp.2d 1337 (S.D. Fla. 2011) (allowing discovery by the victims); Does v. United States, 950 F.Supp.2d 1262 (S.D. Fla. 2013) (rejecting Government's motion to dismiss); Doe No. I v. United States, 749 F.3d 999 (11th Cir. 2014) (rejecting Epstein's argument that plea negotiations are barred from disclosure to the victims). On December 30, 2014, Edwards and Cassell filed a motion on behalf of a third client — Jane Doe No. 3 — seeking joinder in the action. See Jane Doe No. 3's Motion Pursuant to Rule 21 for Joinder in Action, Does v. United States, No. 9:08-cv-80736-KAM (DE 279). Several days later, they filed a corrected motion, fixing the signature block on the pleading (DE 280). Jane Doe No. 3 alleged in her motion that she was the victim of sexual offenses committed by 2 EFTA01099135 Edwards, Bradley vs. Dershowitz Case No.: CACE 15-000072 Counter-Defendants' Motion to Dismiss Counterclaim Jeffrey Epstein, including the offense of sex trafficking. She alleged that Epstein had trafficked her to other wealthy and powerful persons, including one of the defense attorneys who had helped negotiate the plea arrangement: Alan Dershowitz. In the days that followed, Dershowitz made numerous statements on television programs and in other media attacking Jane Doe No. 3 and her attorneys. Dershowitz called Jane Doe No. 3 "a serial liar" who "has lied through her teeth about many world leaders." http://www.cnn.com/2015/01/06/usidershowitz-sex-allegation/. Of particular relevance here, Dershowitz also repeatedly called legal counsel for Jane Doe No. 3 "two sleazy, unprofessional, disbarable lawyers." Id. Dershowitz made statements to the effect that[t]hey [Edwards and Cassell] are lying deliberately, and I will not stop until they're disbarred." Boston Globe — January 4, 2015. On January 6, 2015, Edwards and Cassell filed this action, alleging that Dershowitz had defamed them by attacking their honesty and integrity in the course of their representation of their client. On February 10, 2015, Dershowitz filed an answer to the complaint, denying that he had defamed Edwards and Cassell. He also filed a two-count counterclaim. Count I was entitled False Allegations in Joiner Motion, and alleged that Edwards and Cassell had placed "irrelevant, defamatory and false allegations about Dershowitz" in the motion. ¶ 23. Count II was entitled- extra judicial statements, and alleged that Edwards and Cassell had defamed Dershowitz by making statements to the media such as "w[e] carefully investigate all of the allegations in our pleadings before presenting them." ¶ 31. Count II contended that Edwards and Cassell had "created a false impression" by making such statements. ¶ 38. 3 EFTA01099136 Edwards, Bradley vs. Dershowitz Case No.: CACE 15-000072 Counter-Defendants' Motion to Dismiss Counterclaim ARGUMENT Count I of counterclaim fails to state any grounds for relief, since it rests on statements made in the course of federal judicial proceedings that are immune from defamation action. Count II of the counterclaim fails to state any grounds for relief, since it rests on statements that are reasonably related to the CVRA litigation, are not defamatory and that are, in any event, protected by the fair report privilege. I. Legal Standards for a Motion to Dismiss. "The primary purpose of a motion to dismiss is to request the trial court to determine whether the complaint properly states a cause of action upon which relief can be granted and, if it does not, to enter an order of dismissal." Fox v. Professional Wrecker Operators of Florida, Inc., 801 So. 2d 175, 178 (Fla. 5th DCA 2001) (citing Provence v. Palm Beach Taverns, Inc., 676 So. 2d 1022, 1024 (Fla. 4th DCA 1996)). Florida law is well settled that in order to withstand a motion to dismiss, the complaint must state "ultimate facts sufficient to indicate the existence of a cause of action." Greenwald v. Triple D Properties, Inc., 424 So. 2d 185 (Ha. 4th DCA 1983); see also Fla. Rule Civ. P. 1.110(bX2) ("pleading which sets forth a claim for relief must state a cause of action and shall contain "a short and plain statement of the ultimate facts showing that the pleader is entitled to relief"). It is also "a fundamental principle of pleading that the complaint, to be sufficient, must allege ultimate facts as distinguished from legal conclusions which, if proved, would establish a cause of action . . . ." Maiden v. Carter, 234 So 2d 168, 170 (Fla. 1st DCA 1970). In other words, "[t]he question for the trial court to decide is simply whether, assuming all the allegations in the complaint to be true, the plaintiff would be entitled to 4 EFTA01099137 Edwards, Bradley vs. Dershowitz Case No.: CACE 15-000072 Counter-Defendants' Motion to Dismiss Counterclaim the relief requested." Cintron v. Osmose Wood Preserving, Inc., 681 So. 2d 859, 860-61 (Fla. 5th DCA 1996). II. Count I Must Be Dismissed Because It Rests on Statements Edwards and Cassell Made in the Course of Representing a Client During a Judicial Proceeding Which Are Absolutely Immune from Suit. Florida's litigation privilege extends to attorneys absolute privilege from civil liability for statements made in judicial proceedings. See Levin, Middlebrooks, Moves & Mitchell, P.A. v. U.S Fire Ins. Co., 639 So.2d 606, 608 (Fla. 1994). As the Florida Supreme Court has explained, "Traditionally, defamatory statements made in the course of judicial proceedings are absolutely privileged, no matter how false or malicious the statements may be, so long as the statements are relevant to the subject of inquiry." Id. at 607-08. The litigation privilege "arises immediately upon the doing of any act required or permitted by law in the due course of the judicial proceedings or as necessarily preliminary thereto." Fridovich v. Fridovich, 598 So. 2d 65 (Ha. 1992). The common law has long recognized such a privilege for attorneys. See Burns v. Reed, 500 U.S. 478, 489-90 (1991) ("lawyers were absolutely immune from damages liability at common law for making false or defamatory statements in judicial proceedings (at least so long as the statements were related to the proceedings) . . . ."); Restatement (Second) of Torts § 586 (1977) ("An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications . . . during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding."). That the litigation privilege protects Edwards and Cassell against suit here is apparent from the face of Dershowitz's Counterclaim. Count I is styled "False Allegations in the Joinder 5 EFTA01099138 Edwards, Bradley vs. Dershowitz Case No.: CACE 15-000072 Counter-Defendants' Motion to Dismiss Counterclaim Motion" (emphasis added). If the litigation privilege means anything, it must mean that attorneys are free to make allegation on behalf of their clients in a legal pleading — i.e., in the federal court joinder motion. Florida law has long recognized that attorneys must have immunity for statements they make in the course of judicial proceedings in order for a "free adversarial atmosphere to flourish, which atmosphere is so essential to our system of justice." Sussman v. Damian, 355 So.2d 809, 811 (Fla. 3rd DCA 1977)2 Thus, "[i)n fulfilling their obligations to their client and to the court, it is essential that lawyers, subject only to control by the trial court and the bar, should be free to act on their own best judgment in prosecuting or defending a lawsuit without fear of later having to defend a civil action for defamation for something said or written during the litigation. A contrary rule might very well deter counsel from saying or writing anything controversial for fear of antagonizing someone involved in the case and thus courting a lawsuit, a result which would seriously hamper the cause of justice." Id.; see also David Elder, Defamation: A Lawyer's Guide § 2:5 (2014) (absolute immunity for attorney statements "is justified by the public policy which necessitates free and unencumbered exchange of statements in judicial proceedings in order to assist courts in the truth-seeking process. Any While Florida courts recognize broad immunity for attorneys pursuing the legitimate interests of their clients, see, e.g., Wolfe v. Foreman, 128 So.3d 67 (3rd DCA 2013) (dismissing malicious prosecution claim against attorneys), different considerations apply when a client deliberately presents false claims to an attorney. Such misconduct directly implicates the client in the long- standing tort of malicious prosecution. See Restatement (Second) of Torts § 587, cmt. (a) (noting tort of malicious prosecution for "the wrongful initiation of the proceedings"). 6 EFTA01099139 Edwards, Bradley vs. Dershowitz Case No.: CACE 15-000072 Counter-Defendants' Motion to Dismiss Counterclaim other rule would unduly stifle participants and clog the courts with a multiplicity of suits emanating from prior litigation.").2 At various points in the counterclaim, Dershowitz advances the argument that the allegations in the joinder motion are somehow "irrelevant" to the federal proceeding. But Jane Doe No. 3 has asserted in her currently-pending federal court pleadings nine different ways in which the allegations against Dershowitz are directly relevant to the case. See Plaintiff's Resp. to Motion for Limited Intervention by Alan M. Dershowitz, Jane Does v. United States, No. 9:08-cv-80736-KAM, DE 291 at 17-26 & n.17 (Jan. 21, 2015). Indeed, in her pleading, Jane Doe No. 3 notes that Dershowitz himself has claimed in the media that he was "targeted" by Jane Doe No. 3 because "that could help [her] blow up the [plea] agreement." Id. at 23. The Court can take judicial notice that rescission of the plea agreement — or, as Dershowitz colorfully puts it, "blowing up" that agreement — is the goal of the federal lawsuit. His identity as an attorney who helped negotiate that agreement is thus highly relevant to the federal case — and was appropriately included in the pleadings. 2 In his Counterclaim, Dershowitz also complains about the styling of the signature block by attorney Cassell on the December 30, 2014 pleading, arguing that he did not drop a footnote explaining that the University of Utah was not institutionally endorsing the pleading. But whether or not Cassell styled his signature block correctly did not defame Dershowitz. In any event, Cassell added that standard disclaimer to his signature block on January 2, 2015, so the omission is at most a minor inaccuracy and not actionable. See Florida Standard Jury Instructions—Civil Cases (No. 00-1), 795 So.2d 51, 57 (Fla.2001) (instructing juries to "disregard any minor inaccuracies that do not affect the substance of the statement."). In addition, the missing footnote was merely a single instance of a mistake, which is not actionable. See Craig v. Moore, 4 Media L. Rep. (BNA) 1402, (Fla. Cir. Ct. Duval Cnty. 1978) (copy attached as Exhibit 1). 7 EFTA01099140 Edwards, Bradley vs. Dershowitz Case No.: CACE 15-000072 Counter-Defendants' Motion to Dismiss Counterclaim Dershowitz's claims of "irrelevancy" also misstate the applicable test for what materials are protected by the litigation privilege. The proper test is "not technical legal relevancy but instead a general frame of reference and relationship to the subject matter of the action," Flugge v. Wagner, 532 N.W.2d 419, 422 (S.D. 1995). The appropriate inquiry is thus not whether the allegations were relevant to the case, but only whether they were "pertinent": "Only those statements that are so palpably irrelevant to the subject matter of the controversy that no reasonable man can doubt their irrelevancy and impropriety are not covered by the [litigation] privilege." Miller v. Reinert, 839 N.E.2d 731, 735 (Ind. Ct. App. 2005). The statements in question are clearly pertinent to the federal action. Finally, at various points in the Counterclaim, Dershowitz alleges that Edwards and Cassell somehow defamed him by alerting the media to the case; or providing copies of their December 30 pleading to the media. But this sweeping argument is not the law, as otherwise every law firm website containing recently-filed pleadings would become actionable. CI Cargill Inc. v. Progressive Dairy Solutions, Inc., No. CVF-07-0349-LJO-SMS, 2008 WL 2235354, at *6 (E.D. Cal. May 29, 2008) (no defamation action for posting filed complaint on company website). Courts have recognized that "mere delivery of pleadings in pending litigation to members of the news media does not amount to a publication outside of the judicial proceedings, resulting in the waiver of the absolute privilege. The harm resulting to a defamed party from delivery of pleadings in a lawsuit to the news media could demonstratively be no greater than if the news media found the pleadings on their own. Likewise, we conclude that advising the 3 Edwards and Cassell deny that they alerted the media to their filing. 8 EFTA01099141 Edwards, Bradley vs. Dershowitz Case No.: CACE 15-000072 Counter-Defendants' Motion to Dismiss Counterclaim media that a lawsuit has been filed, including a basic description of the allegations, has no practical effect different from providing the pleadings to the media." Dallas Indep. Sch. Dist. v. FinIan, 27 S.W.3d 220, 239 (Tex. App. 2000) (internal citation omitted); accord Designing Health, Inc. v. Erasmus, 2001 U .S. Dist. LEXIS 25952, 12-13, 2001 WL 36134085 (C.D.Ca1.2001) (letter and news release to publications announcing suit for misappropriation of trade secrets and other claims were protected by the litigation privilege "because they simply informed the recipients of the pendency of the litigation and the claims asserted"). All these well-settled principles lead inexorably to the conclusion that Dershowitz has no viable cause of action for statements made in and statements directly concerning the judicial pleadings. Indeed, Dershowitz himself has admitted this very conclusion! In an op-ed in the Wall Street Journal, Dershowitz discussed his options for challenging the allegations against him: "Well, at least you can sue for defamation the two lawyers and the woman who made the false charges. No, you can't your lawyer tells you. They leveled the accusation in a court document, which protects them against the defamation lawsuit as a result of the so-called litigation privilege." Alan M. Dershowitz, A Nightmare of False Accusation that Could Happen to You, Wall St. J., Jan. 14, 2015 (http://www.wsj.comiarticles/alan-m-dershowitz-a-nightmare- of-false-accusation-that-could-happen-to-you-1421280860). The Court should simply apply the litigation privilege that Dershowitz himself has acknowledged is applicable here and dismiss Counts I and II of Dershowitz's Counterclaim based on that privilege. 9 EFTA01099142 Edwards, Bradley vs. Dershowitz Case No.: CACE 15-000072 Counter-Defendants' Motion to Dismiss Counterclaim III. Count II Must Be Dismissed Because It Involves Statements That Are Not Defamatory and are Protected Under the Fair Report Privilege. Perhaps recognizing that the allegations about the judicial pleadings will not be actionable, Dershowitz moves on to lodge a second count — Count II — which involves statements made by Edwards and Cassell to the media. But here Dershowitz faces a seemingly insurmountable problem: Edwards and Cassell have refused to comment publicly about Jane Doe No. 3's allegations against Dershowitz, preferring instead to simply litigate the matter in court. As a result, Dershowitz is forced rely on the attenuated claim that in making statements that they were not going to comment publicly, Edwards and Cassell somehow "created a false impression" (¶ 38) or "implied" (39) allegations about him. This claim, too, is without merit, because the limited statements they made are not defamatory as a matter of law. And, in any event, any "impression" Edwards and Cassell created was simply a fair report of a judicial filing. The Court should accordingly also dismiss Count II. A. Edwards and Cassell's Out of Court Statements Do Not Make Allegations Against Dershowitz and are Thus Not Defamatory as a Matter of Law. At the heart of Count II is the following statement that Edwards and Cassell provided to various media refusing to comment on the particulars involving Dershowitz. Edwards and Cassell provided this statement in response to inquiries from media who had heard Dershowitz attack them and called for comment. Edwards and Cassell expressly refused comment on "specific claims" because they did not want to "litgate[] in the press": Out of respect for the court's desire to keep this case from being litigated in the press, we are not going to respond at this time to specific claims of indignation by anyone. As you may know, we are litigating a very important 10 EFTA01099143 Edwards, Bradley vs. Dershowitz Case No.: CACE 15-000072 Counter-Defendants' Motion to Dismiss Counterclaim case, not only for our clients but crime victims in general. We have been informed of Mr. Dershowitz's threats based on the factual allegations we have made in our recent filing. We carefully investigate all of the allegations in our pleadings before presenting them. We have also tried to depose Mr. Dershowitz on these subjects, although he has avoided those deposition requests. Nevertheless, we would be pleased to consider any sworn testimony and documentary evidence Mr. Dershowitz would like to provide which he contends would refute any of our allegations. The point of the pleading was only to join two of our clients in the case that is currently being litigated, and while we expected an agreement from the Government on that point, we did not get it. That disagreement compelled us to file our motion. We intend only to litigate the relevant issues in Court and not to play into any sideshow. We feel that is in our clients' best interest and consequently that is what we are doing. We have every intention of addressing all of the relevant issues in the course of proper legal proceedings. Toward that end we have issued an invitation (a copy of which is attached below) to Alan Dershowitz to provide sworn testimony and any evidence he may choose to make available regarding the facts in our recent pleading that relate to him. The invitation has been extended by Jack Scarola, who is familiar with the issues. We would obviously welcome the same cooperation from Prince Andrew should he choose to avail himself of the same opportunity. Paul Cassell and Brad Edwards, co-counsel for Jane Doe #3. Counterclaim, ¶ 31 (first emphasis in bold added; emphasis in italics in original).4 The accompanying invitation that was sent to Dershowitz by Scarola read as follows: Dear Mr. Dershowitz: Statements attributed to you in the public media express a willingness, indeed a strong desire, to submit to questioning under oath regarding your alleged knowledge of Jeffrey Epstein's extensive abuse of underage females as well as your alleged personal participation in those activities. As I am sure you will recall, ow efforts to arrange such a deposition previously were unsuccessful, so we welcome your change of heart. Perhaps a convenient time would be in connection with your scheduled appearance in Miami on January 19. I assume a subpoena will not be necessary since the deposition will be taken pursuant to your 11 EFTA01099144 Edwards, Bradley vs. Dershowitz Case No.: CACE 15-000072 Counter-Defendants' Motion to Dismiss Counterclaim The first element of a defamation claim is a false and defamatory statement concerning another. Thomas v. Jacksonville Television, Inc., 699 So. 2d 800, 803 (Fla. 1st DCA 1997). As a matter of law, the statement Dershowitz complains about does not amount to defamation. Indeed, the opening sentence makes clear that "to keep this case from being litigated in the press, we are not going to respond at this time to specific claims of indignation from anyone." Thus, the passage is not addressing the kinds of "specific claims" that Dershowitz is concerned about. The two specific sentences that Dershowitz highlights are not defamatory and do not concern him. First, the statement "[w]e carefully investigate all of the allegations in our pleadings before presenting them" is simply a description of Edwards and Cassell's approach to lawyering; it does not specifically apply to Dershowitz — much less defame him. Second, the statement "[w]e have also tried to depose Mr. Dershowitz on these subjects, although he has request, but please let us know promptly if that assumption is inaccurate. Also, note that the deposition will be video recorded. Kindly bring with you all documentary and electronic evidence which you believe tends to refute the factual allegations made concerning you in the recent CVRA proceeding as well as passport pages reflecting your travels during the past ten years and copies of all photographs taken while you were a traveling companion or house guest of Jeffrey Epstein's. Thank you for your anticipated cooperation. Sincerely, Jack Scarola 12 EFTA01099145 Edwards, Bradley vs. Dershowitz Case No.: CACE 15-000072 Counter-Defendants' Motion to Dismiss Counterclaim avoided those deposition requests" is a description of the course of litigation that is not defamatory.5 Whether the statements in questions are defamatory must also be considered by looking at the context of the statements as a whole. Immediately following the two sentences Dershowitz challenges, Edwards and Cassell specifically stated that they "would be pleased to consider any sworn testimony and documentary evidence Mr. Dershowitz would like to provide which he contends would refute any of our allegations." This sentence reinforces the fact that Edwards and Cassell were not making specific substantive claims in the press release about whether or not sexual abuse had or had not occurred, but rather were making procedural representations about how they were handling the case and what types of evidence they were prepared to examine. As lawyers with obligations to continue to monitor their legal allegations for falsity, Edwards and Cassell also made clear that they would review any counter evidence from Dershowitz. The Court can take judicial notice of the fact — and should consider — that in the two months since that invitation, Dershowitz has not provided any such evidence to Edwards and Cassell. Indeed, he has refused to even comply with mandatory discovery requests for this information. See Plaintiffs' contemporaneously filed Motion to Compel. Dershowitz also relies on Edwards and Cassell's statement that "[w]e have requested an opportunity to meet with the U.S. Attorney's Office for the Southern District of Florida so that 5 The description of events is also true, as correspondence with Dershowitz amply demonstrates. Indeed, Dershowitz remarkably quotes in his complaint from correspondence by Jack Scarola attempting to take his deposition. Counterclaim, ¶ 36. Dershowitz, however, does not explain how accurately quoting from correspondence can somehow be defamatory. 13 EFTA01099146 Edwards, Bradley vs. Dershowitz Case No.: CACE 15-000072 Counter-Defendants' Motion to Dismiss Counterclaim we can seek their assistance in presenting evidence (including evidence possessed by the government) that will help Jane Doe #3 respond to these unfair attacks." Counterclaim, ¶ 34. Stating that attorneys have requested to meet with prosecutors to gather evidence on behalf of their client is not defamation. Equally meritless is Dershowitz's argument that Cassell defamed him by "suggesting specific questions [a BBC reporter should] . . . ask Dershowitz in interviews." Counterclaim, ¶ 30. Dershowitz fails to set out any specific question, which is itself grounds for dismissal. See Lipsig v. Ramlawi, 760 So. 2d 170, 184 (Ha. 3rd DCA 2000) ("[t]he general rule in Florida is that allegedly defamatory words should be set out in the complaint for the purpose of fixing the character of the alleged libelous publication as being libel as per se." (internal quotation omitted)). But more fundamentally, suggesting a question for a reporter to ask is simply not defamation. That the ultimate recipient of a question from the media may prefer "not [to] answer the questions . . . is not sufficient to support his defamation claim. Indeed, . . . it is the paradigm of a properly functioning press." Abbas v. Foreign Policy Grp., LLC, 975 F. Supp. 2d 1, 16-17 (D.D.C. 2013); see also Phantom Touring, Inc. v. Affiliated Publ'ns, 953 F.2d 724, 730 (1st Cir.1992) (holding that statements in a series of articles published in the Boston Globe, including a rhetorical question regarding whether plaintiff was "trying to score off the success of Andrew Lloyd Webber's `Phantom' were not defamatory because they "reasonably could be understood only as [the author's] personal conclusion about the information presented, not as a statement of fact"). As one appellate court explained, "inquiry itself, however embarrassing or unpleasant to 14 EFTA01099147 Edwards, Bradley vs. Dershowitz Case No.: CACE 15-000072 Counter-Defendants' Motion to Dismiss Counterclaim its subject, is not accusation." Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1094 (4th Cir. 1993). Whether statements can be reasonably interpreted as defaming a plaintiff is a question of law for the court. Art of Living Foundation v. Does, 2011 WI, 2441898 (N.D. Cal. 2011). As a matter of law, the narrow media statements that Dershowitz highlights simply do not defame him. B. Any Impression Edwards and Cassell Created Was Simply a "Fair Report" of a Filed Judicial Document. The Court must also dismiss Count II because any "impression" created by Edwards and Cassell was simply a description of the pleadings that had been filed in court. Absolute privilege attaches to a fair report of judicial proceeding. Count 11 must be dismissed for this reason as well. The fair report privilege provides that a publication of defamatory matter concerning another in a report of an official proceeding is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported. See Restatement (Second) of Torts § 611 (1977). As Florida case law recognizes, the privilege extends to the publication of even the otherwise defamatory contents of official documents, as long as the account is reasonably accurate and fair. See, e.g., Rasmussen v. Collier Cnty. Pub. Co., 946 So. 2d 567, 571 (Fla. 2d DCA 2006). The privilege is most commonly exercised by newspapers and others who are in the business of reporting news to the public. It is not, however, limited to the media, but extends more broadly to any person who makes an oral, written or printed report to pass on the information that is 15 EFTA01099148 Edwards, Bradley vs. Dershowitz Case No.: CACE 15-000072 Counter-Defendants' Motion to Dismiss Counterclaim available to the general public. See Restatement (Second) of Torts § 611, cmt. c (1977). The privilege also applies even in situations where the person republishing the information knows them to be false. Restatement (Second) of Torts § 611 cmt. a (1967).6 The fair report privilege applies to judicial proceedings. See, e.g., Harper v. Walters, 822 F. Supp. 817, 824, (D.D.C. 1993), aff'd, 74 F.3d 1296 (D.C. Cir.), cert. denied, 519 U.S. 809 (1996). Dershowitz's counterclaim alleges that that Edwards and Cassell somehow created a "false impression" by referencing those judicial pleadings. But Edwards and Cassell are certainly entitled to fairly report on those pleadings, particularly where they did nothing more than respond to inquiries from the media. All Edwards and Cassell reported was that they had properly filed pleadings in the federal case. Such a limited statement is not actionable under the fair report privilege, and thus the counterclaim must be dismissed on this ground as well. CONCLUSION The Court should dismiss both Counts of Dershowitz's Counterclaim for failure to state a claim on which relief can be granted. 6 In light of this breadth of the privilege, the Court can dismiss the complaint as a matter of law, even though Dershowitz has alleged actual malice by Edwards and Cassell. To be clear, Edwards and Cassell deny any such malice. 16 EFTA01099149 Edwards, Bradley vs. Dershowitz Case No.: CACE 15-000072 Counter-Defendants' Motion to Dismiss Counterclaim I HEREBY CERTIFY that a true and correct cop of the foregoing was sent via E-Serve to all Counsel on the attached list, this GI Nth day of I Wth— , 2015. ack 'carol Florida B• No.: 169440 Atiome E-Mail(s): jsx@searcylaw.com and ep earcylaw.com ary E-Mail: _scarolateam@searcylaw.com arcy Denney Scarola Barnhart & Shipley, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Phone: (561) 686-6300 Fax: (561) 383-9451 Attorneys for Plaintiffs/Counter-Defendants 17 EFTA01099150 Edwards, Bradley vs. Dershowitz Case No.: CACE 15-000072 Counter-Defendants' Motion to Dismiss Counterclaim COUNSEL LIST Thomas Emerson Scott, Jr., Esquire Thomas.scott@csklegal.com; Steven.safra@csklegal.com Cole Scott & Kissane P.A. 9150 S Dadeland Boulevard, Suite 1400 Miami, FL 33156 Phone: (305)-350-5329 Fax: (305)-373-2294 Attorneys for Defendant/Counter-Plaintiff 18 EFTA01099151 4 Med. L. Rptr. 1402 Craig v. Moore III rowers of violations) may be retarding In conclusion, I find the legislative his- achievement of substantial compliance tory insufficient to persuade me that we with that Act=s should ignore the plain meaning of the I join, therefore, with appellant in feel- words. Rather, I agree with judge Taman: ing that further study and some change is the result ofapplying Exemption 8 as writ- necessary. But I join with the majority of ten is not "absurd," "unreasonable," or this panel and the District Court in sug- "'plainly at variance with the policy of the gesting that it seek relief from Congress legislation as a whole' * • *.' United States rather than the courts. v. American Tniching Ass'ns, Inc., supra. 310 U.S. at 543. Yet I do not think that our and Congress' result sits entirely comfortably with the broad thrust of the FOIA, or that congressional alterations could not im- prove enforcement of the Truth in Lend- ing Act. Indeed, the matter is, I believe, in serious need of legislative attention. First, CRAIG v. MOORE a central proposition underlying Exemp- tion 8 -- that certain information must be Florida Circuit Court kept from the public for fear that it will be Duval County misunderstood and lead to overreaction — is somewhat inconsistent with the phi- GUY R. CRAIG, v. ALLEN MOORE, losophy behind the FOIA.21 Second, the JOSEPH J. MCCLUSKEY, General Man- mere fact that there is a long-standing tra- ager of Radio Station WAPE-690; WAPE- dition of confidentiality for bank records 690, a radio station licensed to do business — a tradition occasionally referred to with in the State of Florida, and S.I.S. RADIO, some reverence in testimony before the INC., No. 78-3204-CA, August SO, 1978 Senate subcommittee21— stnkes me as ir- relevant. It may be time for a reexamina- REGULATION OF MEDIA CONTENT tion. Third, the Comptroller's argument Defamation — Defamatory content that confidentiality is necessary to main- tain the smooth functioning of the exami- (§11.05) nation process and the cooperation of Defamation — Standard of liability — bank officials seems to me to be of very Public official/figure plaintiffs — limited force. Not only does the Comptrol- Knowledge of falsity ($11.3011) ler have a considerable arsenal of weapons Defamation — Standard of liability — at his disposal to compel disclosure,23 but Public official/figure plaintiffs — the costs of employing.that arsenal are as- Reckless disregard (§11.3012) sessed upon the institutions he super- vises2e Recalcitrance on the part of the Radio station's broadcast labeling banks would therefore lead simply to high- mayor who was running for re-election as er assessments. Further, it should go with- "deceptive individual" who "often out saying that preserving good relations misleads, if not blatantly lies" to station's between regulators and those they regu- reporters is, in mayor's Florida libel action late is a goal which, however desirable in against station, constitutionally protected moderation, can if overemphasized be statement of editorial opinion concerning flatly inconsistent with the very purposes mayor's fitness for office. of regulation itself. Fourth, the present practice ofnot disclosing the identities of banks which.violate the Truth in Lending Act (and of not notifying injured bor- 23 This question was slated for further study by the House Committee on Government Operations in its 1977 report. See note 14 supra. 26 See authorities cited at majority op. note In the instant case appellant has submitted af- 19. fidavits suggesting that a policy of disclosure 2'-e See 1964 Senate Hearings, supra note 8, at can be an important way of furtherinK Truth in 177e, 179, 191,549. Lending Act enforcement. See Affidavit ofJohn 23 See 12 U.S.C. 6481 (1976) (giving examin- K. Quinn, Superintendent of the Bureau of ers power to examine all documents and to com- Consumer Protection for the State of Maine. pel testimony, and setting forth sanctions for February lb. 1977. JA 63a1 Affidavit of Law- failure to cooperate). rence Connell, jr., Bank Commissioner for the 26 See 12 U.S.C. §3481.482 (1976). State of Connecticut, March 9, 1977, JA 67n. EXHIBIT I I EFTA01099152 Craig". Moon 4 Med. L. Rptr. 1403 Libel action against radio station. On ants made this statement knowing it to be defendants' niotion for summary judg- false or having serious doubts as to its ment. truth with intent to harm through fal- Granted. sehood. On the other hand, there is no dis- David U. Tumin and William M. Tom- ute but that the defendant Moore, as linson,Jacksonville, Fla., for plaintiff: N ews Director of the station, had reports from his reporters. and others, that the Harold B. Wahl and George D. Gabel, jr.,Jacksonville. for defendant. mayor could not be relied upon and that they could not trust his statements: that Full text of Opinion thepublication was inertly an honest ex- Oakley, J.: pression and opinion based upon the ex- periences with the mayor. This cause came on to be heard on de- fendants' motion for summary judgment As stated in Gertz v. Welch (1974) 418 in this libel suit, supported by the plead- U.S. 323 ( 1 Med.L.Rptr. 1633) at 344 and ings, the depositions of plaintiff and de- 345: fendants, and various affidavits. "An individual who decides to seek gov- • Paragraph 7(A) of the Complaint al- ernmental office must accept certain leges: necessary consequences of that involve- "(A) On or about September 28, ment in public affairs. He runs the risk of 1977. at the peak of a political campaign closer public scrutiny than might other- where in the plaintiff was running for re- wise be the case. And society's interest election as Mayor of the City ofJackson- in the officers of government is not • vile Beach, Florida, the defendant, strictly limited to the formal discharge Allen Moore, as News Director/Com- of official duties. As the court pointed mentator of Radio Station %TAPE-690. out in Garrison v. Louisiana, 379 U.S. at broadcast at 6:00 a.m. a news story 77, 13 L.Ed 2d, 125, 85 S.Ct. 209, the about 'beach cleanliness.' concluding public's interest extends to 'anything therein as follows: which might touch on an official's fitness for office. . .' Few personal attributes 'Well, what else can we expect from are more germane to fitness for office Mayor Guv Craig? This deceptive in- than dishonesty, malfeasance, or im- dividual who quite often misleads, if proper motivation, even though these not blatantly Des to reporters from characteristics may also affect the offi- this radio station. What often* (sic) cial's private character." could you expect from him? Can you believe people elected him to begin * * * with? Can you believe people will probably reelect hint' ". . .the communications media are en- *else" titled to act on the assumption that pub- lic officials and public figures have vol- It is clear that at a time ofa political elec- untarily exposed themselves to in- tion when plaintiff was seeking reelection creased risk of injury from defamatory as mayor, the defendants expressed their falsehood concerning them. No such as- opinions or ideas as to the fitness of the sumption is justified with respect to a plaintiff for public office and why he private individual. He has not accepted should not be reelected. public office or assumed an 'influential When the mayor's deposition was taken, role in ordering society'. Curtis Publish- both he and his counsel conceded, as they ing Co. v. Butts, supra, at 164. 18 1..Ed. necessarily must have done, that the lan- 2d 1094 (Warren, C.J.. concurring in the guage sued on was an editorial commen- result.)" (Italics here and elsewhere tary. It was clearly an expression ofopinion, added unless otherwise indicated.) as the mayor conceded at pages 27 and 40. There has been no showing that this ex- Further it is stated at pages 339 and 340: pression of opinion was a calculated false- "Under the First Amendment there is no hood. See Curtis v. Butts (1967) 388 U.S. such thing as a false idea. However perni- 130, at 153, (1 Med.L.Rptr. 1568] where cious an opinion may seem, we depend the court said that the burden was on the for its correction not on the consciences plaintiff to prove "in effect, a calculated ofjudges andjuries but on the competi- falsehood". There is no evidence of any tion of other ideas." kind, let alone evidence of convincing For plaintiff to recover for libel he must clarity ]as required by New Fork Times v. Sul- show "by proof of convincing clarity that livan (1964) 376 U.S. 254,11 Med.L.Rptr. the publication was false and that the de- 1527] and succeeding asses] that defend- fendants either knew it was false or had se- EFTA01099153 4 Med. L.Rptr. 1404 Craig a Moore nous doubts (reckless disregard) as to its such cartoons as depicted the school truth". See New York Times, supra, at 286; buildings falling down or crumbling St. Amant v. Thompson (1968) 390 U.S. at under plaintiff's leadership, as typical 731 (1 Med.L.Rptr. 1586); and Beckley v. examples. Hanks (1967) 389 U.S. at 83 [1 We do not here attempt to discuss'or Med.L.Rptr. 1585]. classify more than a smattering of the The burden is on the plaintiff to prove in several hundred derogatory articles and car- effect "a calculated falsehood". Curtis, toons which defendants published ofand supra, at 153. concerning plaintiff. Suffice it to say that Defendant is not required to have even while most of the articles and cartoons ran "a reasonable belief" in the truth of the fairly be described as slanted, mean, vicious, publication. Garrison v. Louisiana (1964) and substantially below the level of objectivity 379 U.S. 64 at 78 and 79. that one would expect of responsible journal- A case strikingly similar to this one is ism, there is no evidence called to our attention that of Palm Beach Newspapers v. Early (Fla. which clearly and convincingly demonstrates D.C.A.4, 1976) 334 So.2d 50, cert. den., that a single one ofthearticles was °false state- 354 So.2d 351, where the trial jury gave a ment glad made with actual malice as defined million dollar verdict to the plaintiff coun- in the New York Times case. We thus con- ty school superintendent after the newspa- dude that the defendants' motion for a per had run several hundred articles, directed' verdict at the close of the evi- which was reversed completely on appeal. dence.should have been granted by the As stated on page 51 of the Opinion: trial court. The judgment is therefore ". . .Bothpapers, through their respec- reversed and the cause remanded with tive editorial and news staffs, embarked directions to enter a judgment in favor upon a concerted campaign admittedly de- of the defendants." signed to bring about the removal ofMr. Early The Early decision was not only upheld from his elected position. In pursuance by the Honda Supreme Court when it de- of this objective, the defendants pub- nied certiorari, but is supported by the lished over a period of approximately decisions of the United States Supreme fourteen months several hundred news Court.In Greenbelt v. Buster (1970) 398 U.S. articles and editorials, all of which were 6 [1 Med.L.Rptr. 1589), at 11, 14 and 15, generally hostile to or critical of Early charges of "blackmail" were held insuffi- and many of which were of a defamatory cient; in OldDominion Utter Carriers v. Austin nature." (1974)418 U.S. 264, the charge of being a "traitor" was held insufficient; in Curtis v. See further on page 52: Birdsong (C.A.5 1966) 364 F.2d 344, at 348, "Plaintiff/appellee complained that the the charge of being a "bastard" was held defendants characterized his tenure in insufficient; and in Time v. Johnston (C.A.4 office as unsuccessful, and stated that he 1971) 448 F.2d 378, at 384, the charge of was unfit to hold the office of Superin- being "destroyed" was held insufficient; tendent ofPublic Instruction because of the courts in all those cases holding the his ineptness, incompetence and indeci- charges were merely "rhetorical hyperbo- siveness. All ofthese charges were clear- le" and the "conventional give and take in ly matters of opinion, not statements of our economic and political controversies". fact,.and were proper subject of com- See also Bennett v. Transamerican Press • inepton a public official's fitness for of- (U.S.D.C. Iowa 1969) 298 F.Supp. 1013, fice." where a charge against a legislator that he We quote further on pages 53 and 54: was a "liar" was held to be merely the ex- "Most of the articles and cartoons would pression of the opinion of the wnter, and fall in the category of what the courts not libelous under the New York Tunes stan- have chosen to call 'rhetorical hyperbole' or dard. 'the conventional give and take in our In addition to the Bennett case where the economic and political controversies.' court held that the word "liar" was not ac- In this category were statements to the tionable, the Illinois court has likewise effect that public confidence in the held the word "liar" would be non-action- school system was eroding, that the pub- able in an appropriate context such as lic was clamoring for new leadership in here. See Wade v. Sterling Gazette Co. (Third the school system, that plaintiff enjoyed District, 1965) 56 III.App.2d 101. TV and news exposure, that plaintiff Other cases have held non-actionable hadnot, prior to his election, held an ad- the words "lousy agent", Valentine v. North ministrative position in the school sys- American Co. (III. Third District, 1973) 16 tem higher than acting principal, and I11.App.3d 227; "scab" and "traitor", Old EFTA01099154 - Craig v. Nfriore 4 Med. L. Rptz. 1;05 Dominion Letter Carriers v. Austin (1974) 418 preciably injure the plaintiff's reptita. U.S. 264; "dishonorable and deluded", non". Delis v. Sepsis, (111.App., 1972)9 111.App.3d Nor is it libelous to charge an individual 317; "fixes parking tickets", (III.App., with a single mistake or of acting foolishly 1967), Kamler v. Chicago American Publishing on a single occasion. Co., 82II1.App.2d 86; "nut". "mishuginer" This principle is well illustrated by Twig- and "screwball", Skolnick a Mittelman, gar v. Ossining Printing & Publishing Co. (111.App., 1968), 95 1II.App.2d 293, 237 (1914), 161 App.Div. 718, 146 N.Y.S. 429. N.E. 2d 804; "completely loses his cool. where the article said that the plaintiff, a turns purple •* Prussian dictator", dentist, had removed the root of a tooth so (M.App., 1973) Von Solbrig v. Licata, 15 unskillfully that three other teeth were ex- M.App.3d 1025, 305 N.E. 2d 252; and posed, and a cavity in the roof of the pa- "asshole", McGuire v. fankiewicz, (III.App., tient's mouth and a disease of the gums 1972), 8 App.3d 319,'290 N.E.2d 675. andjaws set in. The Court held thatinfalli- The courts have held that these expres- bility is not a human trait and even the sions "may be characterized as extreme. most skillful may make a mistake on a sin- bitter, and may hold up plaintiffs to ex- gle occasion, so that the assertion of a sin- ecration, yet are not libelous per se". gle act of negligence was not libelous. In Cohen v. New York Times (1912), 153 See also Battersby v. Collier, (1898) 34 App.Div. 242, 138 N.Y.S. 2d 206, someone, App.Div. 347, 54 N.Y.S. 363; Arnold Bern- friend or foe, inserted an advertisement in hard & Co., Inc. v. Finance Publishing Corp., the New York Times that Cohen had died (1968), 32 A.D.2d 516, 298 N.Y.S.2d 740; on May 6. Cohen sued the newspaper. His Hirschhorn v. Group Health Ins., (1958), 13 complaint was dismissed, the Court saying Misc. 2d 338, 175 N.Y.S.2d 775; Cowan v. at page 246: Time Inc., (1963) 41 Misc.2d 198, 245 "Such publication may be unpleasant; it N.Y.S. 2d 723. may annoy or irk the subject thereof, it One of the strongest cases is the deci- may subject him to joke or jest or banter sion of the United States Court of Appeals from those who knew him, even to the for the 2nd Circuit in Hotchner v. Castillo- extent of affecting his feelings but this is Puche (1977), 551 Fed.2d 910 [2 not enough". Med.L.Rptr. 1545]. There, the author de- Forty years later a similar joke was scribed the plaintiff "as a manipulator, a played on John Cardiff. The announce- 'toady', a 'hypocrite' and 'exploiter' of ment went a step further and stated that Hemingway's reputation, who was never the plaintiff was lying "in state at 566 4th 'open and aboveboard'." The author also Avenue" which was the address of his said about plaintiff, "1 don't really trust saloon. Still the Court held there was no him." libel, C.ordiff u. Brooklyn Eagle Inc., (1947), The lower Court entered up judgment 190 Misc. '730, 733, 75 N.Y.S. 222, hold- for the plaintiff which was reversed by the ing: Court of Appeals, and the United States "At its worst the publication might Supreme Court denied certiorari at cause some amusement to the plaintiff's U.S. . the key point of the opinion friend. But it is difficult to see where his is found at page 913; reputation would be impaired in the "A writer cannot be sued for simply ex- slightest degree and the law of defama- pressing his opinion of another person, tion is concerned only with injuries however unreasonable the opinion or thereto." vituperous the expressing of it may be. In Kimmerle v. New York Evening Journal, See Gertz v. Robert Welch, 418 U.S. at 339- inc., (1933) 262 N.Y. 99, the plaintiff was 40; Buckley v. Littell, 539 Fed.2d 882 at described as being courted by a murderer 893." who had left "a dirty, blood-stained record The Hotchner case is squarely in point behind" him in Chicago and who was later here. The defendants merely express their hung. In dismissing the complaint, the opinion of Mayor Craig and there can be Court of Appeals said (262 N.Y. at 103): no recovery "however unreasonable the "Embarrassment and discomfort no opinion or vituperous the expressing ofit doubt came to her from the publication, may be." as they would to any decent woman See also Edwards v. National Audubon Soci- under like circumstances. Her own reac- ety, et seq. USCA 2 [2 Med.L.Rptr. 1849] tion, however, has no bearing on her (1977) 556 Fed. 2d 113, cert. den. reputation . . .We are unable to find U.S. ; and Rinaldi v. Holt, (N.Y. anything in this article which could ap- 1977) 42 N.Y. 2d, 396, 2 Med.L.Rptr. EFTA01099155 4 Med. L.Rptr. 1406 Craig v. Moore 2169. There, New York's highest Court Cf. Columbia Broadcasting System, Inc. a Dem- upheld Summary judgment against the ents& National Committee, (1973)412 U.S. plaintiff public official and said at 2 94 [1 Med.L.Rptr. 1855) (broadcaster has Med.L.Rptr. 2173; right to refuse paid editorial advertise- "The expression of opinion, even in the ments; where the Court said: "For better form of pejorative rhetoric, relating to fit- or worse, editing is what editors are for; ness forjudicial office or to performance and editing is selection and choice ofmate- while in Judicial office, is safeguarded. rial." 412 U.S. at 124.) (Cf., Old Dominion Branch No. 496, Beyond their specific holdings, Tornillo Assn. of Letter Carriers v. Austin, 418 U.S. and CBS serve as a reminder that any "in- 264, 283-284.) Erroneous opinions are trusion into the function of editors' can- inevitably made in free debate but even not be permitted under the First Amend- the erroneous opinion must be pro- ment; to forget that reminder is to run the tected so that debate on public issues risk that "uninhibited, robust and wide- may remain robust and unfettered and open" debate, New York Times v. Sullivan. concerned individuals may have the nec- (1964) 376 U.S. 254, 271, will be lost, and essary freedom to speak their con- that the expression of personal opinions science. (See New York Times Co. v. Sul- and views which is fundamental to vigor- livan. 376 US 254, 271-272, supra.) ous debate will be stifled. Plaintiff may not recover from defend- The editorial in question here is an ex- ants for simply expressing their opinion pression of opinion for which the plaintiff ofhis judicial performance, no matter how cannot constitutionally recover in a libel unreasonable, extreme or erroneous these action. Accordingly, the defendants' Mo- opinions might be. (See Hotchner v. tion for Summary_ Judgment must be sus- Castillo-Puche, 551 F.2d 910, 912.) tained. The publisher had accused the plaintiff, The burden is on plaintiff to prove his Judge Rinaldi, of being incompetent, stat- case by "clear and convincing" evidence. ed that he should be removed from office, Gertz v. Robert Welch, Inc., (1974) [1 and that he was probably corrupt. None- Med.L.Rptr. 1633] 418 U.S. 323, 342; theless, the Court held defendants had the Beckley Newspapers Corp. v. Hanks, (1967) [1 right to have and express their opinion. Med.L.Rptr_. 1585], 389 U.S. 81, 83; New What is expressed in an editorial opin- York Times v. Sullivan, (1964) [1 Med.L.Rptr. 1527) 376 U.S. 254, 285-286. ion like that here is a matter which is be- Accordingly, the plaintiffmust show, when yond the reach of libel law. The plaintiff challenged by the Motion for Summary who claims he has been libeled by anoth- Judgment filed by the defendants, that the er's published opinion of him, if he is a evidence he will introduce at trial will es- public official, cannot, consistent with the tablish constitutional malice with the con- First Amendment, sue the publisher for vincing clarity required of him. Fadell v. having expressed his opinion. Such an ac: Minneapolis Star & Tribune Co., Inc. don constitutes an "impermissible intru- (U.S.C.A. 7 1977) 557 F.2d 107 [2 sion into the function of editors," Miami Med.L.Rptr. 2198), cen. den. (1977) Herald Publishing Co. v. Tornillo, (1974), 418 U.S. 98 S. Ct. 508, af£g (N.D. Ind. U.S. 241 [1 hfed.L.Rptr. 1898], 258. In 1976) 425 F.Supp. 1075 [2 Med.L.Rptr. Tornillo, the Supreme Court invalidated a 1961); Canon v. Allied News Co., (U.S.C.A. 7 Florida statute granting a political candi- 1976) 529 F.2d 206; Bon Air Hotel, Inc. v. date equal space for reply in newspapers Time, Inc., (U.S.C.A. 5 1970) 426 F.2d 858; which were editorially critical of him, say- Wasserman v. Time, Inc. (U.S.C.A.D.C. ing: 1970) 424 F.2d 920 (Wright, J., concur- "The choice of material to go into a ring); United Medical Laboratories v. Columbia newspaper, and the decisions made as to Broadcasting System (U.S.CA. 9 1968) 404 limitations on the size and content of the F.2d 706; Washington Post Co. v. Keogh paper, and the treatment of public is- (U.S.D.C. 1966) 365 F.2d 965; Hutchinson sues and public officials - whether fair or v. Proxmire, (W.D. Wis. 1977) 431 F.Supp. unfair - constitute the exercise of edi- 1311; affirmed (U.S.C.A. 7 1978) -F.2d-, 4 torial control andjudgment. It has yet to Med. L Rptr. 1016 (involving Senator be demonstrated how governmental Proxmire's "opinion" ofplaintiffHutchin- regulation of this crucial process can be son); Wolston v. Reader's Digest Assn., Inc., exercised consistent with the First (D.C.D.C. 1977) [2 Med.L.Rptr. 1289]; Amendment guarantees of a free press 429 F.Supp. 167; Oliver v. Village Voice, Inc., as they have evolved to this time.' 418 (S.D.N.Y.1976) 417 F.Supp. 235; Raganov U.S. At 258. v. Time, Inc., (M.D. Ma. 1969) 302 F.Supp. EFTA01099156 Craig v. Moore 4 Med. L Rptr. 1407 1005; Bandelin v. Parnell, (1977) 98 Idaho lic concern that the courts have more 337. 563 P.2d 396 [2 Med.L.Rptr. 1600]; and more taken the position that the Johnson v. Capita( City Press. (La. 1977) 346 First Amendment issues which arise out So.2d 280 [2 Med.L.Rptr. 2255); Adams v. of libel suits should be disposed of on sum- Frontier Broadcasting Co.. (Wyo. 1976) 555 war, judgment where a public official P.2d 556 [2 Med.L.Rptr. 1166); O'Brien v. plaintiff has failed to establish 'actual Tribune Publishing Co., (1972) 7 malice'. . . Wash.App. 107, 499 P.2d 24. "In Washington Post Co. v. Keogh. [supra). The court in Bandelin v. Nisch, supra, the court stated: . . . said as follows in upholding Summary 'In the First Amendment area, summary Judgment: procedures are even more essential. For the "When a defendant's communications stake here, if harrassment succeeds, is are constitutionally privileged [under free debate. One of the purposes of the New York Times], a plaintiff cannot pre- [New York Times v. Sullivan] principle, in vail at trial unless he establishes malice addition to protecting persons from with convincing clarity. This is the stan- being cast in damages in libel suits filed dard against which the court must exam- by public officials, is to prevent persons ine the evidence on motion for summary from being discouraged in the full and judgment because this is the standard that free exercise of their First Amendment determines materiality of disputed rights with respect to the conduct of questions of fact. Unless there is evi- their government. The threat of being dence which if believed by a jury would put to the defense of a lawsuit brought establish malice clearly and con- by a public official may be as chilling to vincingly, a defendant is entitled to sum- the exercise of First Amendment free- mary Judgment. Disputed issues of fact doms as fear of the outcome of the law- that if resolved in favor of the plaintiff suit itself especially to the advocates of would still fall short ofestablishing mal- unpopular causes."' . ice with convincing clarity are not mate- rial." 563 P.2d at 399. See also Guitar v. Westinghouse Electric Corp., supra, 396 F.Supp. at 1053 ("Summa- The plaintiff cannot resist the defend- ry judgment is the ride, and not the exception. in ants' Motion for Summary Judgment defamation cases" (emphasis in original); merely by arguing that there is an issue for Grant v. Esquire, Inc.. 367 F.Supp. 876, 881 thejury as to malice, unless he makes come (S.D.N.Y. 1973) (public figure plaintiff specific showing from which malice may must "make afar more persuasive showing than definitely be inferred. Thompson v. Evening required of an ordinary litigant in order to defeat Star Newspaper Co.. (1968) 129 U.S. a defense motion for summary judgment.") App.D.C. 299, 394 F.2d 774; Johnson v. In Jenoff v. Hearst (U.S.D.C. Md. 1978) Capital City Press. (La. 1977) 346 So.2d 820. F.S. 4 Med.L.Rptr. 1023 at 1028, It is not enough for the plaintiff to allege as late that a defamatory falsehood has been pub- ing authorities: 1978, the court held, cit- as June 27, lished, or that the defendant acted care- lessly; absent proof with "convincing clari- "Of course, where the actual malice ty", summary judgment must be granted standard of New York Times v. Sullivan is to the defendants. Fadell v. Minneapolis Star applicable, the granting of summary judg- & Tribune Co., Inc. (U.S.C.A. 7 1977) 557 ment is the ride, rather than the exception be- F.2d 107 [2 Med.L.Rptr. 2198], cert. den. cause of the difficulty encountered by a (1977) U.S. 98 S.Ct 508, affig plaintiff in showing the existence of ac- (N.D. Ind. 1976) 425 F.Supp. 1075 [2 tual malice. Anderson v. Stanco Sports Med.L.Rptr. 1961). Library, 542 F.2d 638, 640 (4th Cir. To require the defendants to incur the 1976); Time, Inc. v. Johnston, 448 F.378 further expense of a trial in this matter, (4th Cir. 1971) at 383-84." where on this record there is no proof, let There are discussed hereinafter the alone clear and convincing proof, of con- Florida cases, including many from Duval stitutional malice on their part, would be County, upholding the right of the media wholly contrary to the command of the defendant to summary judgment in situa- New York Times v. Sullivan principle. In tions like that here. Fade!! v. Minneapolis Star and Tribune Co., Of interest is the decision of the United Inc., supra, the district court stated: States Court of Appeals for the Second "It is in order to prevent the 'chilling ef- Circuit in Lando v. Herbert (1977) 568 F.2d fect' of such burdens on the press, and 974 [3 Med.L.Rptr. 1241], which went so to facilitate free debate on issues ofpub- far as to prevent pretrial discovery or dis- EFTA01099157 4 Med. L. Rptr. 1408 Craig v. Moor! closure of the editorial process of the press dismissed at 183 So.2d 215; Carroll v. Flori- in deciding what to publish. da Publishing Company (Fla. C.C. Duval Plaintiff contends that he is entitled to 1965) 25 Fla.Supp. 5; West v.. Florida recover in an individual capacity even if he Publishing Company (Fla. C.C. Duval 1968) cannot recover as mayor. Unfortunately 30 Fla. Supp. I; LaBruzo v. Miami Herald for plaintiff, this contention has been (Fla. C.C. Dade 1971) 36 Fla. Supp. 1; Sul- squarely rejected in both Gertz, supra, and livan v. Florida Publishing Company (Fla. C.C. Garrison, supra, where the court held that Duval 1966) 26 Fla. Supp. 57; Merritt-Chap- "the public's interest extends to anything man v. Associated Pins (Fla. C.C. Dade 1970) which might touch on an official's fitness 33 Fla. Supp. 102; MacGregor v. Miami Her- for office and that few personal attributes ald (Fla. D.C.A.2 1960) 119 So.2d 85; are more germane to fitness for office than Walker v. Times Publishing Co. (C.C. Pinellas dishonesty, malfeasance, or improper 1965) 26 Ha. Supp. 90; Menendez v. Key motivation, even though those charac- West Newspaper Corp. (Fla. D.C.A.3 1974) teristics may affect the official's private 293 So.2d 731; and Nelson v. Globe Commu- character" and defendants' First Amend- nications (C.C. Duval 1977) 45 Fla. Supp ment protection "is not rendered inap- 48 [2 Med.L.Rptr. 1219]. plicable remedy because an individual's See also the decision of the Supreme private reputation, as well as his public Court of Florida in Florida Publishing Com- reputation, is harmed". See 379 U.S. at 77. pany v. Fletcher (1976) 340 So.2d 914 [2 In sum, this court holds that here the Med.L.Rptr. 1088], cert. Supreme den. (5-25-77) U.S. , where the news media defendants, as they had a right of Florida reversed the District Court Court of to do, expressed their opinion ofplaintiffs Appeal and upheld summary judgment fitness for office and of the way in which he by the Duval County Circuit Court handled that office and his dealings with enteredfor the newspaper at 40 Fla. Sup_p. 1; and the press and public; that there is no show- Ocala Star-Banner v. Damron (1971) 401 ing under the New York Times cases which U.S. 295 [1 Med.L.Rptr. 1624], where the permit recovery. United States Supreme Court reversed a Under the circumstances, it is the libel judgment for the plaintiff which the court's duty to enter up summary judg- District Court of Appeal and the Florida ment to avoid the expense, delay, and haz- Supreme Court had refused to set aside. ard of a trial and to protect the First Thereafter when the case came back, sum- Amendment rights of the news media. See mary judgment was entered by the same Bon Aire Hotel v. Time (C.A.5 1970)426 F.2d judge who had upheld the original judg- 858, 863-865, pointing out why summary ment to the plaintiff, and the First District judgment is required. See also Washington Court of Appeal unanimously affirmed at Post v. Keogh (U.S.C.A. D.C. 1966) 365 F.2d 263 So.2d 291, stating at page 292: 965 at 968, cert. den., 385 U.S. 1011, hold- "Apparently the Federal Supreme ing that "in the First Amendment area Court has ruled that a public figure is summary procedures are evenmore essen- without recourse when the news media, tial". without proof of 'express malice', of Bishop v. Wometco (Fla. D.C.A.3 1970) 'convincing clarity' chooses to publish 235 So.2d 759 (cert. den. at 240 So.2d defamatory falsehoods about such pub- 813) upheld summary judgment and lic figure. Thus we are compelled to af- quotes many of the same authorities cited firm the (summary) judgment ap- in Bon Air. It also calls attention to the fact pealed." that the court in White v. Fletcher (Fla. 1956) As late as April 26, 1978, the Supreme 90 So.2d 129, affirmed summary. libel Court of the United States again affirmed judgment (for defendant) and "anticipat- freedom of speech and of the press grant- ed the later decision in New York Times". ed by the Constitution. We quote from Among the other Florida cases uphold- First National Bank of Boston v. Bellotti (April ing summary judgments for the news 26, 1978), U.S. , 55 L.Ed.2d 707, media in such situations (and where the at 717 [3 Med.L.Rptr. 2105], 718: showing for the plaintiff was more and that "'The freedom of speech and of the for the media was less, if anything, than press guaranteed by the Constitution here) are Hill v. Lakeland Ledger (Fla. embraces at the least the liberty to dis- D.C.A.2 1970) 231 So.2d 254; Amos v. Flor- cuss publicly and truthfully allmatters of ida Publishing Company (Fla. C.C. Duval public concern without previous re- 1964) 23 Fla. Supp. 169; Barrow it Florida straint or fear of subsequent punish- Publishing Company (Fla. C.C. Duval 1965), ment . . . . Freedom of discussion, if it affirmed per curiam at 178 So.2d 28, cert. would fulfill its historic function in this EFTA01099158 Craig v. Moore 4 Med. L. Rptr. 1409 nation, must embrace all issues about remarked that 'as is the case with ques- which information is needed or appro- tions of privilege generally, it is for the priate to enable the members of society trial judge in the first instance to deter- to cope with the exigencies of their pen- mine whether the proofs show respond- od.' Thornhill v. Alabama, 310 U.S. 88, ent to be a 'public official". We think the 101-102, 84 L.Ed. 1093, 60 S.Ct. 736 same rule should be applied when the (1940)." question is whether a plaintiffis a'public • • 4, • figure'. The Court observed '[such a course will both lessen the possibility "As the Court said in Mills v. Alabama, that a jury will use the cloak of a general 384 U.S. 214, 218, 16 L.Ed.2d 484, 86 verdict to punish unpopular ideas or S.O. 1434 (1966), 'there is practically speakers, and assure an appellate court universal agreement that a major pur- the record and findings required for re- pose of [the First] Amendment was to view of constitutional decisions.' 383 protect the free discussion of govern- U.S. 88 n.15. We add that a jury of mental affairs.' " laymen is hardly qualified to apply the nice and sometimes intricate distinc- tions between public and private figures A very recent case is the decision of the which have been developed in the cases United States Court of Appeals for the following New York Times Co. v. Sul- Third Circuit in Pierre v. Capital Cities Com- livan, 376 U.S. 254 [ I Med.L.Rptr.1527] munications (April 12, 1978) 576 F.2d 495, (1964)." 3 Media Law Reporter 2259, where the The Court further said at page 2339: court under the First Amendment upheld summary judgment and where the Media "We reject the argument that Barron Law Reporter Headnote reads: was reckless because he failed to make inquiry to verify the statements in the "CA 3: Federal district court did not err F.B.I. report. Failure to investigate does not in granting summary judgment for tele- itself establish bad faith or recklessness. New vision station in libel action brought by York Times Co. v. Sullivan, 376 U.S. former chairman ofDelaware River Port 254, 287-88 [I Med.L.Rptr. 1527] Authority for station's broadcast of pro- (1964); St. Amant v. Thompson, 390 gram concerning port authority, based U.S. 727, 733 [1 Med.L.Rptr. 1586] on evidence demonstrating that broad- (1968)." (underlining added.) cast's only false statement was 'honest utterance, even if inaccurate,' on evi- Construing the case here most strongly dence showing that certain other state- against the defendants there is no basis on ments challenged as libelous would be which ajury could find proofofconvincing construed by reasonable viewers as hy- clarity of calculated falsehood. The deci- perbole, and on finding that station s sions of the United States Supreme Court failure to positively rule out possibility and of the Florida courts make it clear that that plaintiff used insider information susummaryjudgment is the remedy in a situ- did not constitute actual malice." ation of this kind. In Wolston v. Reader's Digest (U.S.C.A. - IT IS ORDERED that the plaintiffCraig D.C. 1978) F.2d , 3 Media Law take nothing by his suit; that each of the Reporter 2334, the court upheld summary defendants go hence without delay, and judgment for the publisher, and affirmed that each of-the defendants have and re- the trial court in holding that whether cover its or his costs from the plaintiff, plaintiff was a public figure was a question such costs to be hereafter taxed by the of law for thecourt. We quote from page court. 2335: DONE AND ORDERED atJacksonville, "PUBLIC OR PRIVATE FIGURE - A Duval County, Florida, this 30th day ofAu- QUESTION OF LAW gust, 1978. The District Court held that whether Wolston was a public figure was a ques- don of law, to be decided by the court. Wolston contends that in this the court erred because 'this complex factual question . . . whether plaintiff is a public figure is properly a jury matter.' We think. the District Court was right. In Rosenblatt v. Baer, 383 U.S. 75, 88 [IMed.L.Rptr. 1558] (1966) the Court EFTA01099159