Bloggers are protected as “Media” – Comins v. VanVoorhis (Chapter 2)

It’s an all-too-common scenario: A blogger criticizes someone online, and then gets sued for his statements.   But two things make this case unique: First, the plaintiff sued because of the blogger’s characterizations of him shooting two dogs at close range; second, the defendant blogger was in Florida – and thus protected by Fla. Stat. § 770.01. (I am proud to have represented Mr. VanVoorhis, the blogger in this case).

Florida’s pre-suit notice statute, § 770.01, requires defamation plaintiffs to alert defendants to the allegedly defamatory material before filing suit. The statute reads, in its entirety:

770.01 Notice condition precedent to action or prosecution for libel or slander.

Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory

Florida’s appellate courts have interpreted this very strictly. Essentially, the statute doesn’t let you sue someone (as long as they are covered by the statute) unless you meet its conditions. It has a tendency to relieve courts of the burden of at least some frivolous defamation litigation, because the statute requires a defamation plaintiff to focus his attention on what, precisely, he finds to be defamatory and to articulate his concerns in writing. Theoretically, we must presume that such an exercise generates at least some self-reflection by parties and attorneys who might otherwise file unsupportable SLAPP suits.

The fact that 770.01 applies to newspapers and periodicals has never been challenged. When the legislature added “other medium” to the statute in 1976, I think it was being forward-thinking in trying to make the statute broad enough to embrace new media that might come into being. I always felt that “other medium” was clear enough. The Internet is a “medium,” so why shouldn’t 770.01 protect bloggers? We raised that issue at the trial court in this case, and the court gave us a pretty succinct ruling in our favor. (Trial Court Order).

Comins appealed, and he took the position that the words “other medium” did not extend to the Internet, and even if it did, it would only apply to news media. (Appellant’s brief at 14-15). Comins further argued that even if it extended to the Internet, Mr. VanVoorhis was not a “media defendant,” since he was not “a journalist.”

We argued that the language “or other medium” includes the Internet, and most certainly includes blogs. (Answer Brief). In fact, we took the position that the statute should apply to everyone, media, non-media, or anyone else. (The court did not hold that broadly). However, we also argued that no matter how the court looked at the scope of 770.01, it should apply to our client, because he was a “media defendant,” despite the fact that he “only” published on a blog.

The essential point, which the appellate court agreed with, is that a “journalist” is not something you are but is rather something that you do. Mr. VanVoorhis’ blog was journalism, and thus he was considered to be a “media defendant.” In agreeing, the appellate court gave us some wonderful language supporting the proposition that bloggers serve an essential function.

[I]t is hard to dispute that the advent of the internet as a medium and the emergence of the blog as a means of free dissemination of news and public comment have been transformative. By some accounts, there are in the range of 300 million blogs worldwide. The variety and quality of these are such that the word “blog” itself is an evolving term and concept. The impact of blogs has been so great that even terms traditionally well defined and understood in journalism are changing as journalists increasingly employ the tools and techniques of bloggers – and vice versa. In employing the word “blog,” we consider a site operated by a single individual or a small group that has primarily an informational purpose, most commonly in an area of special interest, knowledge or expertise of the blogger, and which usually provides for public impact or feedback. In that sense, it appears clear that many blogs and bloggers will fall within the broad reach of “media,” and, if accused of defamatory statements, will qualify as a “media defendant” for purposes of Florida’s defamation law as discussed above.

There are many outstanding blogs on particular topics, managed by persons of exceptional expertise, to whom we look for the most immediate information on recent developments and on whom we rely for informed explanations of the meaning of these developments. Other blogs run the gamut of quality of expertise, explanation and even- handed treatment of their subjects. We are not prepared to say that all blogs and all bloggers would qualify for the protection of section 770.01, Florida Statutes, but we conclude that VanVoorhis’s blog, at issue here, is within the ambit of the statute’s protection as an alternative medium of news and public comment.

The presuit notice requirement of section 770.01 applies to allegedly defamatory statements made in such a public medium the purpose of which is the free dissemination of news or analytical comment on matters of public concern.(Op. at 23-24)

In other words, if a blog is a legitimate news source, it is just as protected as if it were The New York Times.

But, the court did not go so far as to say that everyone gets protection under the statute, and not every blog is a member of the media. There are certainly blogs out there that have different missions, and those would not be covered.

This is a great decision for bloggers, especially those who might find themselves under the threat of a defamation suit in Florida.

As a practice note, I have often said that filing a defamation claim in Florida without sending a 770.01 notice should be per se legal malpractice. The simple exercise of sending a letter, where you articulate your legal theory, should be no great burden on any plaintiff. This case should make that clear. We certainly believed (and argued) that the defense should have prevailed on the merits. See Answer brief at 36-68. However, neither the trial court nor the appellate court ever looked at the merits — since the claims were barred completely by the plaintiff’s failure to comply with the simple exercise of sending a pre-suit letter.

Conversely, if you’re defending a blogger in Florida, do not fail to raise the 770.01 issue at the pleading stage. While it may be more satisfying to prevail on the actual merits of the case, this route is a lot easier and cheaper than a trial on the merits.

Case Documents:

    Comins Appellant Brief

    Van Voorhis Answer and Cross-Appeal Brief

    Comins’ Reply and Cross-Appeal Opposition

    Van Voorhis’ Cross-Appeal Reply Brief

    Appellate Court Opinion

11 Responses to Bloggers are protected as “Media” – Comins v. VanVoorhis (Chapter 2)

  1. Yeah, I think your argument is sound as to the definition. I was speaking with someone who was on a committee working on a federal journalistic privilege statute. The definition they came up with turned on the specific intent of the person.

    I know you’re on about the journalistic privilege statute and civil defamation, but I’d add that this subjective intent concept is important in another respect when it comes to protecting ordinary people who blog. It is a way to challenge the intent element of those disorderly conduct/interfering with an officer type charges that get employed against ordinary people who take pictures of police or government officials and so on. Those statutes always have an intent element. I’d argue the state has the burden to show beyond a reasonable doubt the person’s intent was other than a good faith exercise of protected rights, and that the defendant can ask for jury instructions as to that.

    Someday I’ll write that article. Yeah.

  2. andrews says:

    It appears that much is made of the distinction between “media” and “non-media” defendants.

    The problem is that 770.01 says only that

    Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall …

    I am not seeing anything in there which would support a judicial gloss that only a “media defendant” who publishes a libel is entitled to notice. True, there is nothing that expressly says a “non-media defendant” is so entitled; the statute appears merely to say that “the defendant” is so entitled.

    • I agree, and I argued that it shouldn’t matter who the defendant is — media, nonmedia, anyone. But, as a fallback position, we argued that this blog was “media.”

      The Florida courts have universally held that 770.01 applies only to “media,” despite the clear language of the statute. I believe that your interpretation is correct, but thus far, the courts do not seem disposed to opening up this statute to everyone. I’m a little confused as to why, because it isn’t as if it provides thick protection — it just requires that a plaintiff take a deep breath before filing a defamation suit.

      • andrews says:

        universally held that 770.01 applies only to “media”

        That’s true, but I think they may be following an old case where the statute did refer to media.

        I don’t have any defamation cases at the moment, but if I did I should surely plead the failure even for a non-media defendant. I won’t rely on that, though; I think interrogatories asking them to identify the specific untruthful statements and tell me why they are untrue would at least force some reflection on the plaintiff’s part.

        Our Florida anti-SLAPP statutes appear to be rather thin gruel. And one of these days, someone is going to sue over one of my newspaper columns.

        Our offer of judgment statute and rule seem pretty good. I have seen plaintiffs decide against proceeding when hit with one of those. Offer the plaintiff the princely sum of $1.00 when you are pretty sure he takes nothing, and at least he has to weigh his odds.

  3. […] one of the fundamental protections that the First Amendment provides to citizens and the media – including bloggers. New York specifically memorializes this protection in Civil Rights Law § 74, precluding any cause […]

  4. […] one of the fundamental protections that the First Amendment provides to citizens and the media – including bloggers. New York specifically memorializes this protection in Civil Rights Law § 74, precluding any cause […]

  5. […] as an alternative medium of news and public comment.” As the trial lawyer representing VanVoorhis described it in a blog post about the judgement: “The essential point, which the appellate court agreed with, is that a […]

  6. […] alternative medium of news and public comment.” As the trial lawyer representing VanVoorhis described it in a blog post about the judgement: “The essential point, which the appellate court agreed with, is that a […]

  7. […] dalla legge essendo un mezzo alternativo di notizie e commenti del pubblico”.  Come  spiega in un post Marc John Randazza, il legale che assisteva l’ imputato, “il punto essenziale su cui la […]

  8. […] prevista dalla legge essendo un mezzo alternativo di notizie e commenti del pubblico”.  E come  spiega in un post Marc John Randazza, avvocato difensore dell’ imputato, “il punto essenziale su cui la corte si […]

  9. […] prevista dalla legge essendo un mezzo alternativo di notizie e commenti del pubblico”.  E come  spiega in un post Marc John Randazza, avvocato difensore dell’ imputato, “il punto essenziale su cui la corte si […]

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