INDEPENDENT ANALYSIS OF ANTI-SLAPP SENATE BILL 1312
Free Speech in the Public Interest
31 March 2015

By David Arthur Walters
MIAMI MIRROR

Florida Senator Don Gaetz has sponsored Senate Bill 1312 to amend Florida’s current statute, Section 768.295, 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. SLAPP suits are not only used to shut people up but to extort money from them as well.
Anti-SLAPP legislation has become popular in the United States over the past few years. Florida has lagged behind progressive states inasmuch as its legislation was emasculated to be effective only against government entities that cause its employees or agents to file a legal claim against someone solely to prevent them from exercising their constitutional rights to participate in government business. Although lawyers, who are after all the ones who file such suits, are “officers of the court,” there exists a longstanding judicial prejudice against holding them responsible as if they were public officials instead of private individuals.

The remedy provided is an “expeditious” judicial dismissal of valid SLAPP actions filed in court along with the award of court costs, attorney fees, and limited actual damages. The current law has rarely been invoked.

Although the old title is retained, “Strategic Lawsuits Against Public Participation (SLAPP) suits by governmental entities prohibited,” the proposed amendment as it stands today adds the wording, “constitutional rights of free speech” and will presumably protect persons not only from government entities but from other persons as well.

For example: from larger businesses most likely to use the courts to stifle public criticism of their products and conduct, the very interests whose powerful lobby caused the original legislation to be whittled down to actionable against government entities only.

And, rarely, the proposed amendment may protect persons from lawyers who file defamation suits against persons who file complaints against them with the Florida Bar, the disciplinary arm of the Florida Supreme Court, simply to shut them up. Such complaints are “privileged” even if the complaints are false because it is in the public interest to protect people from the powerful legal industry by encouraging them to speak up. The Florida Bar may discipline attorneys for threatening to file defamation suits for that reason although it may choose not to intervene in litigation once a suit is filed pending its resolution. There are less than a handful of such instances that I am aware of.

Now the Bill reads, in part: “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.”

The Bill as it stands today will not have much impact if passed into law because it leaves the judiciary with almost the same questionable discretion as it already has over the same subject matter. Its prime beneficiary would be the legal industry in its representation of big businesses, namely, mainstream media in its struggle with big business.

1. “Free speech in connection with public issues.”

One 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? Is not free speech always of the highest public interest? Do The People really want to leave the definition of what is a public issue or what is in the public’s best interest up to a few judges instead of their political representatives?

The indefinite notion of public interest has long protected fair comment under common law. The standard enunciated in New York Times Co. v. Sullivan, 376 U. S. 254 bars media liability for defamation of a public official or public figure absent proof that the defamatory statements were published with knowledge of their falsity or in reckless disregard of the truth. It is certainly not in the public interest to expose the lives of private individuals to calumny and ridicule.

The Sullivan court stated that an advertisement run in the New York Times “communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought financial support on behalf of a movement whose existence and objectives are matters of the highest public interest and concern.”

The U.S. Supreme Court, in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), commented on the public interest standard it set in Sullivan v. New York Times: “A publisher or broadcaster of defamatory falsehoods about an individual who is neither a public official nor a public figure may not claim the New York Times protection against liability for defamation on the ground that the defamatory statements concern an issue of public or general interest.”

The media defendant in that case claimed that the plaintiff, a lawyer, was a public official, so its statements were protected as being in the public interest under the New York Times standard. The magazine had published a story that his representation of a murder victim’s family in civil litigation against a convicted police officer was part of a Communist conspiracy to discredit the local police, that he had arranged Nuccio's "frameup," had a criminal record, and was a "Communist-fronter."

The Gertz court held that the lawyer was not a “de facto public official” simply because he had served briefly on housing committees, and had appeared at a coroner’s inquest: “Our cases recognize no such concept. Respondent's suggestion would sweep all lawyers under the New York Times rule as officers of the court, and distort the plain meaning of the "public official" category beyond all recognition. We decline to follow it.”

Furthermore, “To extend the New York Times standard to media defamation of private persons whenever an issue of general or public interest is involved would abridge to an unacceptable degree the legitimate state interest in compensating private individuals for injury to reputation and would occasion the additional difficulty of forcing courts to decide on an ad hoc basis which publications and broadcasts address issues of general or public interest and which do not.”

There really is no tidy definition of public interest in any nation let alone in Florida. A judge may simply wash his hands of the question. For example, 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 rather peculiar case public in the public interest. I pleaded that “it 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.”

He responded on Sept. 28, 2011: “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…. 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.”

The bottom line there is that, absent a public clamor on the courthouse steps, it is the Establishment’s Press or 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.

Is it in the public’s interest to know that a Florida attorney refused to pay a court reporter her fee after he won his case, that she sued him and won on appeal, and that she complained about him in her blog, and he sued her for defamation? The Miami SunPost, a tiny newspaper, published the story about her plight. The attorney threatened to sue the reporter, namely me, offering to buy me a steak at a fine restaurant in order to serve me with process.

He was courteous. I harbor no hard feelings towards him. I said my report was obviously not libelous. He said that only the court could decide one way or another. A defense would cost me at minimum a $20,000 retainer. I had no time nor will to represent myself over one of a thousand articles. He was just routinely cleaning up his Internet reputation.

That is what lawyers do. And that behavior should be more expressly confronted by any amendment to Florida’s SLAPP statute. Free speech is in the public interest if not invasive of privacy of private individuals.

2. “Protected under applicable law”

Of course one should not be restrained in advance from speaking freely. That does not mean that inciting riots and wrongly defaming people should be protected. Applicable law holds people to account for speech harmful to the public interest. The problem with applicable law, when it is common law including interpretation of vague legislation, is that it is whatever judges say that it is, and that changes from time to time in an irrational manner. Anti-SLAPP legislation should be more specific about the nature of laws The People want to be applicable.

3. “Without Merit”

It would be contrary to the public interest to dismiss meritorious defamation suits. And jurists will cavil ad infinitum over merit. Again, 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….”

For instance, multiple counts 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?

4. “Expeditiously disposed of.”

The Bill reads, “It is the intent of the Legislature that such lawsuits be expeditiously disposed of by the courts,” but no deadlines are given, such as 30 days, or 60 days.

“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.”

What, “As soon as practicable?” The cases may drag on interminably, and then there are the appeals.

5. “The court may award.”

“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.” 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.

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?

The remedy given by the Senate Bill as it now stands offers nothing new to non-government entities over what can already be had without the anti-SLAPP legislation. Court costs taxed to the loser, and attorney fees may be sanctioned on the plaintiff and counsel in cases of sham pleadings, are already available under Chapter 57 of the Florida Statutes.

What the anti-SLAPP amendment should do is provide for the award of costs, attorneys fees, actual damages for all, and a mandatory fine of $100,000 against persons who file SLAPP pleadings. All the above should be imposed jointly and severally on the lawyers and their clients.

6. The Attorney General may defend.

The fact of the matter is that most journalists today, although not paupers, cannot afford to hire attorneys to mount any sort of defense to a defamation suit including a SLAPP pleading. Indeed, they might be impoverished whether they respond or not.

It is therefore in the public interest, if that is what legislators are really concerned about, to provide that the Attorney General may upon request defend any person whose net worth is less than $500,000 from SLAPP suits.

Conclusion:

The Senate Bill as it stands today is a step in the right direction, and presents an opportunity to do the right thing. However, the legislation as now proposed by the Senate offers little more remedy in terms of time and money than is already available to the general public. Its prime beneficiary 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.

The Florida Press Association has not responded by press time to our comments on the proposal. The establishment press has not reported on this important legislative effort in the public interest. That may be because it fears big business will mount a formidable opposition, and attempt to corrupt legislators. The Florida Bar apparently considers the Bill of little moment since it has taken no position on the proposal, and its general counsel has not responded to requests for comment.

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