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David Arthur Walters

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Florida's SLAPP Legislation Addressed

3/28/2015 6:07:00 AM

by David Arthur Walters


Lawyers use defamation suits to shut people up and extort settlements.

28 March 2015

Senator Don Gaetz
FLORIDA SENATE

Subject: SB 1312 SLAPP Amendment

Honorable Senator Don Gaetz

Thank you for sponsoring SB 1312 to amend Florida’s statute inhibiting government entities and their officials from filing Strategic Lawsuits Against Public Participation against persons to deprive them of their natural and constitutional right to free speech.

The current statute has rarely been invoked. I understand that the amendment will now presumably protect persons not only from government entities but from other persons as well. Please allow me to observe here that SLAPP defamation suits are not only used to shut people up but to extort money from them as well.

I promised to bring my concerns with the Bill as it stands today to your personal attention. Although it is well intentioned, I do not believe it will have much impact because it leaves the judiciary with almost the same questionable discretion as it already has over the same subject matter. Its prime beneficiary is mainstream media.

The most troubling aspect of the Bill is that it separates the notions of Free Speech and Public Issues. Since when is Free Speech not a Public Issue per se?

Now the Bill reads: “It is the intent of the Legislature to protect the right in Florida of Florida’s citizens to exercise their rights of free speech in connection with public issues, and the rights to peacefully assemble, instruct their representatives, and petition for redress of grievances before the various governmental entities of this state as protected by the First Amendment to the United States Constitution… ’Free speech in connection with public issues’ means any written or oral statement that is protected under applicable law and is made before a governmental entity in connection with an issue under consideration or review by a governmental entity, or is made in or in connection with a play, movie, television program, radio broadcast, audiovisual work, book, magazine article, musical work, news report, or other similar work.”

Are we to leave the definition of Public Issue up to the judiciary? Well, here is an example of how that notion may be defined.

An administrative order of the Florida Supreme Court allows the chief judge of a circuit court jurisdiction to make non-confidential records in a case of significant public interest electronically available. I asked Palm Beach Circuit Court Chief Justice Peter D. Blanc to make a case in his course styled Johnson v. Libow available on the basis of its public significance. David Johnson had expended nearly $250,000 to defend himself and his wife from a defamation suit brought by attorneys whom he filed a privileged complaint against with the Florida Bar, and to no avail. After winning the case, he filed a malicious prosecution action against one of the attorneys. I had written several articles about the Johnson Ordeal and published them on line because major media were not interested in the case. I wanted the court to publish the case file online so the public could witness the entire process, including an appeal where the defendant asserted an absolutely privilege to abuse clients.

I pleaded with Judge Blanc that “Johnson v. Libow is of significant public interest inasmuch as its subject matter appertains to the ability of officers of the court to pervert judicial process to intimidate, silence, and punish members of the public who file complaints against them with The Florida Bar. And the case is significant because it appertains to the Bar's failure to restrain all attorneys from doing so, despite the Bar’s opinion, in one case of selective enforcement, that such conduct is unethical inasmuch as it interferes with the administration of justice.”

His response on Sept. 28, 2011, is as follows:

“Amy Borman has advised me that you are seeking a better understanding of my reasons for denying your request that I issue an administrative order making all docket filings electronically accessible to the public free of charge in the case of David Johnson v. Allen H. Libow, Case No: 502011CA001121XXXXMB. You have asked that I take this action based upon your belief that this case is ‘of significant public interest’. Many cases that come through our court system are of significant public interest and the courts and court filings are open to public scrutiny. However, I have never previously taken the action that you are requesting in relation to a particular case and choose not to do so now. I believe there is an inherent conflict between the courts remaining impartial and the courts rating in advance the relative importance to the public of the cases that come before it. It is not appropriate for the court to determine that any one case is worthy of more public scrutiny than another. Although there is an appellate process for trial judges to certify cases of great public importance, those are done primarily in situations where the case raises a conflict in the application of existing laws. The decision that a case is of significant public interest should be made by the public and/or the media, not by the court. It is important to note that the records you seek are all available for review at no charge to you and to all members of the public through the clerk’s office.” ( see Walters, David Arthur, ‘The Judicial Swamp of Impractical Obscurity -- Chief Judge of Palm Beach Circuit Declines Online Access to Case of Significant Public Interest, Online: 2012)
So members of the public can get in their cars or fly to Palm Beach, where they can inspect the records at the courthouse. And they will have a considerable hotel expense given the fact that they will have, in this case and the underlying case it is brought upon for malicious prosecution and an abuse of process that includes dilatory tactics and obfuscation of the issue by clogging the court with massive filings, over 32,000 pages of documents to digest and take notes on. Of course the clerk will be glad to send images of the documents to a member of the public at a rate of $1 per page, and that would run $32,000.

Senator, the bottom line here is that, absent a clamor on the courthouse steps, it is the Establishment’s Press, the so-called Fourth Branch of Government that determines what a Public Issue is. In any case, the cavilers will have a field day in court at great expense to the public arguing over that notion.

Another notion they will cavil over as usual is merit. The Bill reads that, “A person or governmental entity in this state may not shall file or cause to be filed, through its employees, any lawsuit, cause of action, claim, cross-claim, or counterclaim against another a person or entity without merit and primarily solely because such person or entity has exercised the constitutional right of free speech in connection with a public issue….”

Count after count of a defamation complaint will be quibbled over as to whether they are actionable according to the shifting sands of common law rendered subject to the intuition of judges of varying qualifications and personal dispositions. And who can say for sure what the sole reason for a complaint is?

Now examine the remedy given by the Bill, and consider whether it offers anything new in addition to court costs already taxed to the loser and the attorney fees already sanctioned on the plaintiff and counsel in cases of sham pleadings. (Chapter 57)

“The person or entity petitioner may file a motion for summary judgment, together with supplemental affidavits, seeking a determination that the claimant’s or governmental entity’s lawsuit has been brought in violation of this section. The claimant or governmental entity shall thereafter file its response and any supplemental affidavits. As soon as practicable, the court shall set a hearing on the petitioner’s motion, which shall be held at the earliest possible time after the filing of the claimant’s or governmental entity’s response. The court may award, subject to the limitations in s. 768.28, the party sued by a governmental entity actual damages arising from the governmental entity’s violation of this section act. The court shall award the prevailing party reasonable attorney fees and costs incurred in connection with a claim that an action was filed in violation of this section.” (I believe Sec. 768.28 limits damages to one person at $200,000, and $300,000 is the maximum that can be awarded to multiple persons from the same incident. Anything in excess of those amounts may be awarded by the legislature itself.)

Now why “may” the court award actual damages, and only upon a government entity’s violation? Should not the word be “shall,” and government entities and others be treated equally?

Although this current Bill is a step in the right direction, and presents an opportunity to do the right thing, I believe the legislation as proposed offers little more remedy in terms of time and money than is already available to the general public. Its prime beneficiary as it stands would be the well-funded i.e. the established press and its attorneys who will vouch that whatever issue taken up by their clients is of significant public interest or a public issue simply because they published it.

Sincerely,

David Arthur Walters
Independent Journalist

CC:
Samuel J. Morley, General Counsel
Florida Press Association
 

 



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