Sonjia McSween’s daughter once attended the New School of Orlando. From what I understand, it is a pretty ritzy place to send your kids. She wasn’t happy about the service she got, so she launched a blog about the place. I don’t know if her statements are true or not. I don’t care. This post is not a defense of Ms. McSween – but a critique the New School’s foolish lawsuit and how it has been handled to date.
Problem Number 1: The Streisand Effect.
A few years ago, 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.
Here is the original website that started the fight between New School and McSween. Note the hit counter: 109 visits. Since the lawsuit, the number of people who know about Ms. McSween’s gripe with the New School has exploded one hundred fold. The Orlando Sentinel did a story on it, and at press time that story had 619 comments. Some of them back up the New School’s general claim that it is a good school — but others back up Ms. McSween’s specific criticisms. One news station reports that the school threatened to remove another kid from the school or they would remove her child. (source). The Miami Herald covered the story, with mixed opinions in the comments, as did the St. Petersburg Times.
I can hear Barbara singing now…
Any lawyer who files a defamation action needs to, even if just for CYA purposes, advise their client in writing of the Streisand effect.
Problem Number 2: Major overreaching.
The complaint alleges some defamatory statements that, if they are indeed false, could prove sticky. However, it seems that most of the complained-of statements are mere hyperbole. Nevertheless, the New School demanded that the entire website come down. Here is a copy of the Original Website, and the demand letter calling for the complete and total cessation of publication of the website.
What on this page is defamatory? To have defamation, you need a false unprivileged statement of fact, about another, that is damaging to the plaintiff.
In an ABC News interview, New School’s lawyer, David Simmons claims that the suit is all about the “kickback” statements:
This has nothing to do with someone not liking a school or not liking their treatment,” said David Simmons, the lawyer representing the prep school, who brushed aside the notion that the school was just unhappy about the negative attention. “It has everything to do with the allegations that there was a kickback scheme that she has no basis for. We are suing her to make her stop.” (source)
I can see the possible defamation by implication claim stemming from the question about “kickbacks,” but what else on the site is problematic? Look at paragraph 10 of the complaint. Only sub paragraph “d” relates to kickback statements. If this suit is only about that narrow allegedly defamatory comment, Mr. Simmons could have salvaged a lot of credibility by filing suit based only upon the “kickback” comments.
Unfortunately, the complaint targets a lot of rhetorical hyperbole and mere opinion. Worse yet, the complaint not only seeks an injunction against McSween making more defamatory statements, but it also seeks an injunction against Ms. McSween making any additional “disparaging” comments.
Sorry, New School, “disparaging” comments are not defamatory, but they are are protected by the First Amendment.
Should Ms. McSween really have taken the demand letter seriously? When a letter demands that an entire website come down, yet fails to point out the actual defamatory statements, it negatively affects my opinion of the author. When a complaint seeks to squelch criticism, even if part of it may be justified, I see any overreaching as (at best) foolish.
Problem 3 – Section 770.01
Florida has a relatively simple law that requires pre-suit notice before filing a defamation claim. This demand letter doesn’t cut the mustard.
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. (emphasis added)
Case law interpreting Sect. 770 is confusing. In 1997, the Fourth DCA ruled in Tobkin v. Jarboe that 770.01 does not mean what it says, but rather what it thinks that it should say – that 770.01 only applies to “media defendants.” On the other hand, in 1993, the Florida Supreme Court held that it applies to all defendants:
Although chapter 770 primarily addresses media defendants, we note the chapter is broadly titled Civil Actions for Libel. We hold the above statute applicable to all civil litigants, both public and private, in defamation actions. Wagner, Nugent, Johnson, Roth, Romano, Erikson & Kupfer, P.A. v. Flanagan, 629 So. 2d 113 (Fla. 1993)
The Tobkin v. Jarboe court distinguished this by pointing out that the Wagner court was only looking at Section 770.07, which pertains to the statute of limitations for defamation actions. The Fourth DCA then relied upon a 1951 decision reviewing Section 770.01, when 770.01 had been overhauled in 1976.
To make it more confusing still, the Fourth DCA punted on an opportunity to clarify whether 770.01 applies to websites in Zelinka v. Americare Healthscan, Inc. In that case, the defendant was not a publisher of a website, but rather posted allegedly defamatory comments to a message board operated by someone else.
It may well be that someone who maintains a web site and regularly publishes internet “magazines” on that site might be considered a “media defendant” who would be entitled to notice. Zelinka does not fall into that category; he is a private individual who merely made statements on a web site owned and maintained by someone else. Zelinka v. Americare Healthscan, Inc., 763 So. 2d 1173, 1175 (Fla. 4th DCA 2000)
Therefore, the leading authority on 770.01 states that “someone who maintains a website and regularly publishes internet ‘magazines’ on that site” might be protected by 770.01. Obviously, the judge who wrote that opinion went to the Ted Stevens school of technology, but he may have left enough room in the opinion for Ms McSween.
Regardless of your interpretation of 770.01, any attorney and who sends a cease and desist letter to someone for a threatened defamation action, yet fails to send a 770.01 notice, is making a serious blunder.
How much extra work would it have taken to point out which statements New School complained about? This demand letter could have been written with an additional five minutes of work and an extra grain of attention to detail. Doing so would have either resolved the issue or could have conclusively seized 770.01 protection from the defendant. It also would have helped to narrow down the issues to be raised in the complaint.
Even if the suit has merit, the demand letters and the complaint’s overreaching destroy the New School’s credibility.
Ms. McSween clearly has the right to criticize the New School of Orlando. If she stepped over the line with one or two sentences, then those sentences are the proper subject of a demand letter and a complaint. Had New School’s attorneys demanded the removal of the defamatory statements, Ms. McSween might have complied. After all, the “kickback” sentences don’t truly appear to be central to her story. Instead, they tried to bully her into taking down the entire website, she felt backed into a corner, and now there is a big public lawsuit that will ensure the immortality of McSween’s statements.
The drama continues…
Despite the nebulous nature of the demand letter, Ms. McSween took down the website, but put a second one up. This is where McSween gets a little lashing from your humble narrator. Lets just pretend that 770.01 doesn’t exist, or that it doesn’t apply. Even then, once she got the demand letter, the proper reaction was to either call a lawyer (who likely could have negotiated a solution), ignore the letter, or comply with the letter. Taking down one site and putting up another is not “compliance.”
When McSween got the demand letter, I presume that she did not consult an attorney (although I have no actual knowledge). If she had consulted anyone with any legal training at all, they should have been able to spot the deficiencies in the demand letter, and they could have helped her to negotiate some edits to the website that would have left her message intact, but removed any defamatory statements or implications.
Once McSween put up her second website, she got yet another nebulous and bullying demand letter.
You guessed it, someone still forgot to read Section 770.01.
What is next?
Now, nobody wins.
The New School is going to receive 10 times the negative publicity that McSween could have generated on her own. If anything she said is true, then New School is really in a bad spot. They have forced McSween to prove the veracity of her statements in court. If she can do that, they become a matter of public record. However, the widespread republication of the statements will also do its damage. In 5 years, after nobody remembers the name “McSween,” people who heard about the suit will remember that it was about someone complaining of their kids being mistreated there. Unless the New School can completely and conclusively discredit Ms. McSween, they are going to take a heavy public relations hit.
I am willing to believe that everything on McSween’s website is false. Nevertheless, the manner in which New School handled this dispute thus far ensures that I will never have a positive opinion of them — even if everything McSween said is false. The way they handled this seems like an extreme and heavy-handed reaction that raises my hackles. Had New School simply ignored McSween or countered her speech with their own public relations campaign, they would have gotten a lot more mileage than they will get from this ill considered suit. The Streisand effect has already begun. Just look at the Topix comments on the Orlando Sentinel story.
On the other hand, McSween is going to be dragged through a mess of a lawsuit that she too could have avoided. Had she engaged New School’s attorneys early on, she might have been able to find a way out of this. Now she is in a death-match with the New School.
In my eyes, both parties need to have their knuckles rapped with a ruler.