My Helene’s Tree Prophet


Graphic by Darwin Leon
 


THE TREE PROPHET

 
FROM

 

HELENE

 
BY
 
DAVID ARHTUR WALTERS

 

Helene did not know Paul’s acquaintance and consultant of sorts, a man around Lincoln Road Mall sometimes known as Richard the Tree Prophet. Nor would she have wanted too meet him, for Richard was everything in a man Helene despised, a despicability summed up by the word homeless.” As far as she was concerned, any man without ample money and a home to live in was worse than worthless, and this great nation of ours would be even greater if they were loaded into trucks and liquidated, for the expense of keeping them housed was not worth their insults to manhood and especially fatherhood.
Yet Helene, as director of fundraising for the Miami Association for Battered Women, expressed a quite different sentiment for the flat broke and broken women at the nine women’s shelters operated under her organization’s auspices. Her sympathy was indeed with the weaker sex. She had been battered within an inch of her life by so-called gentlemen; that is to say, rich and powerful men. She deified such “gentlemen” because they had terrorized and chastised her throughout her life. She had been a good girl for them, and in the end she herself had been left without a mansion to live in, hence she actually had to work hard for a regular paycheck – Helene was by nature a hard worker, born and groomed to serve men, but women seldom get excellent references for working their domestic tails off for their families. After her fall from the heaven of her gods, she said she lived in her $1,500 month rented condo as a matter of choice; she said she liked it very much, but in fact the smallish one-bedroom apartment was as beneath Helene’s accustomed way of living as sleeping under a bridge would be for her principal hero, George Bush, Jr.
As far as poor Richard was concerned, he was comparatively well off. He had his mental disability check every month, and his so-called life on the street was, when you got right down to it, much better than life in the shelter he had been tossed out of one day during a bout with a fifth of demon rum. He hardly considered himself homeless, thereafter, for he had nested himself and his few possessions in a big tree overhanging the canal, sleeping in a hammock by night and pulling up fish and cooking them in the mornings. He supplemented his income collecting and selling coconuts, and making little dolls out of palm fronds, a big hit with the kids – unbeknownst to Helene, Richard was the faceless, contemptible homeless man who had been stripping the young palms outside her condominium building.
Furthermore, Richard supported his love affair with booze by attending all the art openings where free drinks were served throughout the city. He glanced at the art and engaged in small talk with art patrons, but the main attraction was the open bar, where he drank prodigiously of everything from cheap table wine to designer vodka. Much to his indignation, in addition to being called Richard the Tree Prophet he was dubbed ‘The Man Who Comes To All The Art Openings’. On one occasion he passed out on his feet, keeled over backwards, was declared dead when Emergency Services arrived, but then came to with a jolt and has not missed a single art opening since.
Richard was not out of his element around art. His brilliant mind, dampened by alcohol, had not rendered him entirely incoherent, and the spirits helped inspire him to write several books of rather good Impressionistic poetry, mostly on the subject with which he was best acquainted: Love. Unfortunately, however, poetry readings did not go well for him, as he had lost his front teeth and spat out his words with ample spittle; he sounded like Bugs Bunny, which ruined his chances of striking the right public mood – alas, Governor Bush had cracked down on the false-teeth fund for impoverished people, and the private collection taken by friends had fallen way short of the exorbitant customary price for partials demanded by local dentists..
The poetry of love had brought Richard to Florida on a Greyhound bus from Tennessee. He had a good job in Nashville until his woman sent him out for a bottle of Black Label on Saturday night. They began to argue while polishing it off. She smashed the bottle over the back his head. He turned around and slapped her one. She called the police. He was arrested and charged with battery. She got a restraining order pending the court date. She called him over to get his clothes out of the house, and reported his violation of the restraining order when he showed up. He evaded the police and fled her and the state, hence wound up with the rest of the poor white trash that blows around the most civilized nation in world.
Paul had met Richard at the decrepit old ‘Potemkin Library’ in Collins Park, a virtual day care center frequented mostly by vagrants. Richard sauntered up to him while Paul was reading an entry on Occassionalism in a dictionary of philosophy.
“Hey, excuse me, sir, I’ve seen you around here a lot. I wonder if you would do me a favor. My check is coming this Friday, and….”
“Excuse me,” Paul interjected, “I’m as broke as you are, and I’ll be on the street unless I get a job right away.”
“No problem. My name’s Richard, I’m from Tennessee.”
“I’m Paul, from my mama’s womb, been traveling ever since.”
“Are you going to find a job in that book?”
“Just avoiding reality and realizing that I’m not to blame for it.”
“I hear you. Hey, if things get bad, you can get a place to stay and food real easy, some money too.”
“How’s that?”
Richard explained that all one had to do was to buy a pint of booze, swig it down in front of the CVS store on Lincoln Road, smash the bottle on the sidewalk and start yelling incoherently. “The police will come and process you. Bemoan your addiction to alcohol, plead for help, say you want to stop drinking, and you will find out how to get into rehab. If you follow the procedure and also play the mental disability game, you will wind up with shelter and food and a social worker, who can get you some money for your mental disability.”
“But I don’t drink, smoke, or use other drugs, and I’m not mentally disabled,” Paul responded.
“That’s beside the point, and you’ll be better off, showing how you quit drinking but are still incapacitated,” Richard said with a big grin.
“Oh, I get it.”
“What do you like to do?”
“Write. I’m a writer.”
“I knew it! I’m a poet. You can find a copy of my recent poetry book at Books and Books. I’m about to get a big contract with a publisher. Get yourself on the program, man, and write whatever you like.”
“I appreciate the information, Richard. I sure wish I could give you a few bucks for that info right now. I’m having a bad run of luck. I’m unlucky in money and love lately.”
“Love? That’s my favorite subject. What’s the problem?”
“Ah, well, never mind, I can’t talk about it.”
“Shush!” a library patron yelled.
“Hey, shut up over there!” shouted another.
“Shhhhh!”
“Come on, it’s best to consult a stranger on these things,” Richard insisted. “Let’s go outside and you tell me what’s up.”
Paul, always glad to talk to someone in hopes of getting an interesting story, followed Richard outside and sat down with him on the front steps.
“It’s a woman.”
“What is she like?
Paul described Helene briefly and in very general terms, taking care not to mention anything that would identify her, nor did he mention her feminist cabal to take over Miami politics.
“She got mad and dumped me because I did not know it was her birthday last week.”
“Never, ever, forget a woman’s birthday,” Richard sagely advised.
“I didn’t forget it. I didn’t know it was her birthday. I left my cell at home, and she left an e-text message on it that it was her birthday that day. I spoke with her on a regular phone during the day, but she didn’t say it was her birthday, having supposed that I got the earlier message. I got home and found out it was her birthday, and tried to reach her by phone several times, leaving several messages, but she had turned off her phone. I went by her place. Her lights were on – she said later that she was not at home – she never leaves her lights on when she goes out – but there is no intercom system so I could not get in to knock on her door. Two days later I got an e-text message from her. She said I was an abusive man and that I had stalked her on her cell phone.”
“Okay, so you did not forget her birthday, but you were still wrong,” observed Richard, “for not having your cell phone with you, in which case you would have known. Instead of pestering her, you should have simply apologized and gotten her a little gift. I make nice little dolls out of palm tree fronds,” he offered.
“But that’s not all. I saw her Wednesday, on the street, riding her bike towards me. She was wearing her tight exercise outfit. We stopped and chatted. She invited me up to her place. She likes to watch television a lot, so we were watching LOST, which is entirely pointless so one doesn’t have to think because trying to figure it out would drive you crazy. She was nice at first, but started drinking wine, and got belligerent on the third glass.”
“You let her get into the third glass? Sounds like you made another mistake. You should have taken advantage of the wine, had your way with her.”
“What?”
“Yes, what, that’s the question. What did you really want to do with her? Visualize the scene. Was she sitting down?”
“On the couch.”
“How did she look to you?”
“Well, she looked sexy, come to think of it. Her dress was up a bit above her knees, which were slightly parted, and her face was flushed.”
“So what happened?”
“We got into an argument, or rather she attacked me.”
“What should you have done if you had followed your feelings?”
“Now that I think of it, I should have gotten down on my knees in front of hers and…. Never mind, she’s not that kind of girl.”
“How would you know if you don’t try?” Richard quizzed.
“She’s a prude. She is slighted by the slightest sexual innuendo. She is very intimidating and I can’t keep it up for long when she’s like that.”
“What is said is one thing, what is done is another. So what was the argument about?”
“She started screaming at me, said that I had abused her on her birthday, that I was no gentlemen. She yelled at me to get out and to never contact her again.”
“And?”
“I said she was behaving foolishly, and I tried to explain how I felt. She said she did not care about how I felt or what I said, that she cared about what I did.”
“There you go. You should have been on top of the situation by then.”
“And she said she would never forgive me for what I did, abuse her on her birthday, the most important day of her life. Then she went on and on about how I was no gentleman, so I said the kind of gentlemen she probably loves are the ones who beat the hell out of her then rape her to make amends. And I left.”
“That’s it?”
“Yes. What do you think?”
“I think you’re on a one-way street. She’s selfish, and that’s her right, there’s nothing wrong with that, but you should forget her. There’s nothing in the relationship for you. She’s a taker, not a giver.”
“Well, when I asked what sort of a man she liked, she said she was so sick and tired of giving all her life that she wanted a giver and not a taker.”
“So you’re too late – she’s a taker now. Take my word for it if not her word. She doesn’t give a damn about you or your opinion on anything at all. When it comes to social class, she looks down on you like you were common scum. The only thing she likes about you is your creativity, and she will do her best to stifle it in the end, so you will not be able to get it up for any woman again. Don’t waste your time, because if you want anything from her, you will get hurt.”
“But I don’t need anything from her. And she’s fun to hang out with when not drinking, and she feeds me good food.”
“A sexual relationship would probably be orgasmic dynamite, probably too much for you,” proclaimed the tree prophet. “You would wind up a as limp rag, never fully satisfying her, and she would laugh and shame you, or you would die of a heart attack.”
“I love her because underneath it all I know she is like me, and I love myself a lot, so there is nothing I really want except myself, but it would be nice to have company. The differences between us are superficial, the products of our conditioning.”
“Okay, then. But expect nothing from her. If I were a writer with your feelings I would beat around my bush until I found an attractive and affectionate woman who likes to converse and does not bicker, someone who is sincerely interested in your interests, and hopefully financially independent so she doesn’t have to work and can be your companion.”
“Find? Where would I find a woman like that?”
“Your heart is in the right place. Read some of my poetry. My work is very romantic and spiritual. Thanks for telling me your story. I’m going fishing now. See you later.”
XYX

 

Free Speech in the Public Interest – Attention Bloggers!

SLAPP

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.

  1. 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.

  1. “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?

  1. 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.

  1. 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.

  1. 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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