Orlando Police Chief vs. The First Amendment

Val Demings:  First she lost her gun.  Then she lost all sight of what "uphold and defend the Constitution" means.

Val Demings:
First she lost her gun. Then she lost all sight of what 'uphold and defend the Constitution' means.

by Marc J. Randazza

There aren’t too many elected officials in Flori-duh that I respect. Orlando Police Chief Val Demings, used to be one of the select few. She hasn’t done a perfect job, and had a particularly embarrassing incident in which her gun was stolen. Nevertheless, my general impression of her has been that she is competent and ethical.

Not anymore.

Val Demings vs. the First Amendment

The Orlando Sentinel reports that Demings is threatening to sue an Orlando resident for creating a website that criticizes her performance in office.

Valdemings.com is run by Ezell “Easy” Harris, a frequent critic of Demings’, and contains a disclaimer stating the chief has no association with the site.

Demings’ attorney, Griffith J. Winthrop III, accuses Harris in an April 17 letter of “maligning” and defaming the chief. The letter also says Harris violated the law by using her “persona” and identity and claims Harris’ behavior is “malicious.”

Demings is demanding that the Web site be taken down and threatens to sue Harris if he refuses. (source) (links added)

Harris refused to take down the site – correctly claiming that he is “simply exercising his First Amendment rights.” However, Winthrop (Demings attorney) says that Harris is portraying Demings in a “false light.”

Winthrop would not elaborate on Demings’ claims or the logic behind them. He said he prefers to argue the matter in court. (source)

Poor Mr. Winthrop. When you represent a public figure and threaten a citizen for criticizing that public figure, you have to go to two courts — one being the court of public opinion. Winthrop and Demings need to simply back out of this hole slowly, apologetically, and contritely. If Winthrop does get a chance to argue this matter in court, it isn’t going to end well for his client.

I get a funny feeling that Mr. Winthrop and Ms. Demings are about to learn some valuable lessons about defamation law and litigation public relations. In fact, I’ll provide some here, free of charge.

Litigation Public Relations 101: The Streisand Effect

Shoulda kept your trap shut, Babs.

Shoulda kept your trap shut, Babs.

Once upon a time, Kenneth Adelman posted aerial photos of Barbara Streisand’s home on the intertubes. Streisand got all Barbara on him and sued him for $50 Million. Before the suit, almost nobody had seen Adelman’s website. The lawsuit generated so much attention that millions of people hit his site and the photo was picked up by the AP as newsworthy. Barbara’s tantrum caused the exact opposite effect that she had hoped for.

Just watch, as this story grows legs, how much traffic floods in to valdemings.com.

As of April 26, 2009 at 6:45 AM, valdemings.com had 1572 hits. I wonder how few it had before Winthrop sent his inadvisable letter. Lets see how many it gets over the next few weeks, because the blawgosphere is going to have a field day with this.

Why will the blawgosphere have a field day with this? Aren’t Demings’ claims supportable?

No they aren’t.

I don’t usually prefer to slam the lawyer in cases like this, but Winthrop is really asking for it.

“Truth is not always a defense,” Winthrop said. “I hope he [Harris] gets himself a really good lawyer,” he said. (source)

Even this guy has heard of New York Times v. Sullivan

Even this guy has heard of New York Times v. Sullivan

The last thing that Winthrop should hope for is for Harris to get a “really good lawyer.” Even a half-assed moron of a lawyer would know that Demings’ claims are unsupportable, and that Winthrop is completely off-base. In Massachusetts, truth isn’t necessarily a defense to a defamation action — if the speech is on a matter of private concern. Here in Florida, Winthrop is dead wrong. Whoever taught this guy defamation law should be fired.

Defamation Generally

In order to sustain a cause of action for defamation in Florida, the Plaintiff must show, at a minimum, that there were:

  1. False statements of fact;
  2. Published to a third person;
  3. Which caused damage to the Plaintiff.

Without those essential elements, there is no defamation. See, e.g. Valencia v. Citibank, 728 So.2d 300 (Fla. 3d DCA 1999); Cape Publications, Inc. v. Reakes, 840 So.2d 277, 279-80 (Fla. 5th DCA 2003); Linafelt v. Beverly Enterprises-Florida, Inc., 745 So.2d 386, 388 (Fla. 1st DCA 1999); Smith v. Cuban Am. Nat’l Found., 731 So.2d 702, 705 (Fla. 3d DCA 1999).

Defamation of Public Figures

As a public figure, Demings must prove the same elements shown above, but she will also have to prove “actual malice” on Harris’ part. While Demings may believe that this term fits, “actual malice” has a precise legal meaning, i.e.; known falsity or a reckless disregard for the truth. See New York Times v. Sullivan, 376 U.S. 254 (1964):

[There is] a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

The purpose of the First Amendment is to ensure the unfettered exchange of ideas among the American people. See Roth v. United States, 354 U.S. 476, 484 (1957). Florida courts have held that the First Amendment requires neither politeness nor fairness. See Pullam v. Johnson, 647 So.2d 254, 258 (Fla. 1st DCA 1994); Mile Marker Inc. v. Petersen Publ’g LLC, 811 So.2d 841, 845 (Fla. 4th DCA 2002). Moreover, the Plaintiff must prove the actual malice element by clear and convincing evidence. Id.; Friedgood v. Peter’s Publishing Company, 521 So.2d 236, 239 (Fla. 4th DCA 1988).

In other words, Winthrop couldn’t have his defamation law more backwards. If his client thinks that she can bring a defamation action on these facts, she is in for a rude awakening. Not only is truth a defense, but even if Harris’ website does contain defamatory falsehoods, Demings’ case should not survive a motion to dismiss. Given that she is a public official, Demings would need to prove by clear and convincing evidence that Harris published false and defamatory statements while knowing them to be false, or while subjectively entertaining serious doubts as to the truth of the publication. New York Times v. Sullivan, 376 U.S. 254. Fortunately for Harris, all the statements on his website appear to be republications from other news sources or facts gathered from the public record.

What About “False Light”?

Winthrop doesn’t only allude to a defamation action, but claims that “truth is not always a defense,” and that Harris portrayed his client in a “false light.” I guess Winthrop can be forgiven for not knowing that this is a cause of action that no longer exists in Florida. Well, maybe not. But, lets cut the guy some slack. In all fairness, that has only been the state of the law for the past five months. Of course, every other lawyer in Flori-duh knows this, but maybe he was on vacation in the Andes or something.

Florida’s Anti-SLAPP Law

Florida has a particularly weak anti-SLAPP statute (SLAPP stands for Strategic Lawsuits Against Public Participation). However, if Demings brings this suit, it could be one of the select few cases that actually fall under § 768.295, Fla. Stat. (2008) – the Citizen Participation in Government Act. This statute provides as follows:

No governmental entity in this state shall file or cause to be filed, through its employees or agents, any lawsuit, cause of action, claim, cross-claim, or counterclaim against a person or entity without merit and solely because such person or entity has exercised the right to peacefully assemble, the right to instruct representatives, and the right to petition for redress of grievances before the various governmental entities of this state, as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution.

If the demand amounts to more than mere chest-thumping, and Demings does actually bring a suit against Harris, this statute should apply. Harris would then be entitled to an expeditious resolution of the claim under a special motion to dismiss or a motion for summary judgment. If successful, he would be awarded reasonable attorneys’ fees, and coould be awarded damages as well. While this statute has not appeared in any reported decisions, there is a similar provision regarding Florida homeowners’ associations. See § 720.304(4), Fla. Stat. (2008), which prevents homeowners’ associations from filing similar suits against their members. That has only been used once, and it didn’t end well for the SLAPP perpetrator.

Conclusion

Three Orlando area bowlers expressions say it all <br> One quipped, 'Are you telling me these clowns never heard of New York Times v. Sullivan?'

Three Orlando area bowlers expressions say it all
One quipped, 'Are you telling me these clowns never heard of
New York Times v. Sullivan?'

Winthrop and Demings both ought to be forced to attend a remedial course in Constitutional Law. The First Amendment requires politicians and other public figures to have a reasonably thick skin and endure a substantial amount of harsh criticism. Unfortunately for Demings, she seems to lack that thick skin, and didn’t seem to get the best advice. Winthrop really should have known better.

My prediction: Demings will eventually be forced to back down. I can’t really see anyone being stupid enough to file a suit like this. Wait, scratch that, I’ve seen many lawyers dumb enough to file a suit like this. Despite Winthrop’s ill-advised statements to the media, I’m not betting that he is one of them.

And by the way, from the time I started writing this piece until I hit “publish” — the counter on valdemings.com rose to 1682.

I can hear Barbara Streisand singing now…

UPDATE: Mr. Winthrop contacted me about this posting. My terms of use make it clear that I will adjust stories if the subject feels wronged, and the adjustment is accurate and fair. I explained this to Mr. Winthrop, and he stated that he had “no problem” with the story. He might have made an error, but he certainly is a class act.

6 Responses to Orlando Police Chief vs. The First Amendment

  1. shg says:

    But Demings is a woman. That changes everything and violates Demings cyber civil rights. Sheesh, you would think a lawprof like you would know this sort o stuff.

  2. blueollie says:

    See if I understand this: suppose I wanted to criticize President Bush so I put out information that, say, he had personally authorized for, say, Al Qeada suspects to be broken on the wheel.

    President Bush can’t sue me for defamation unless he could prove that I KNEW that my charges were false and I knew that I had a wide audience for my “report”?

    I suppose this is the balance between having a free and open debate versus having people knowingly spread harmful lies?

    • Not just that: Bush would have to prove, by clear and convincing evidence, that you published the false statement while knowing it to be false, or while subjectively entertaining serious doubts as to the truth of the publication.

      Of course, then he would also have to prove damages — which he wouldn’t be able to do.

  3. Clint says:

    Interesting stuff :) ))))

  4. [...] Free Speech: The Legal Satyricon talks about an interesting free speech case in Florida: evidently a police chief is trying to get a website taken down because she claims that the website is portraying her in a fal…. [...]

  5. John David Galt says:

    I’m surprised Demings doesn’t just arrest her opponent (or worse) for “contempt of cop.” As a police officer, I assume she has immunity from being prosecuted for it (even if the police who have the monopoly on the right to prosecute anyone would ever go after one of their own).

    No one must ever be above the law. But many now are, and will stay that way until we all insist that our legislators do something about that fact.

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