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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Taking Out My Trash

TAKING OUT TRASH PIC

TAKING OUT MY TRASH
BY
DAVID ARTHUR WALTERS

What a writer should or should not throw away, that is the question. Dedicated to Humpty Dumpty

“Writing is knowing what to throw away,” is an old cliché. But I seldom throw anything away. If I trust my initial creative instinct, I know I can somehow salvage almost anything I originally produced, no matter how awful or boring it may seem after I have fallen out of love with it, perhaps because I grew tired of it, thought I could do better, or was just in a bad mood.

Would anyone end a marriage or throw a baby away on a fleeting feeling or whim? Many fine manuscripts have been tossed into the fire on a whim much regretted thereafter. I recall rooting around in the garbage on the curb for a manuscript I had deemed worthless the day before, as if my life depended on finding it. Never again, I told myself.

On the other hand, I think a visionary artist, an artist who has a vision of what he wants to represent, should know what to keep and what to throw away. Surely he would agree that, “Sculpting is knowing what to throw away.” He would have an image in mind in the first place. We would not find him scrounging around in the rubble for his Humpty Dumpty, for, as every British school kid used to know very well, Humpty Dumpty can never be put back together again; you have to start from scratch and forge a better cannon to mount on the wall.

Yet here I am trying to patch up and paste together a few paragraphs torn out of another context and pack-ratted away to my miscellanea file because I deemed them mistaken or superfluous to that instant occasion, yet thought they might be good somewhere else. I think I should have thrown them away; the reader may judge by this result. Indeed, I believe I shall start throwing away more of my work, putting it forever out of sight if not out of mind. Maybe I have done too much pack-ratting and backtracking with my whole life, and, in the process, I have avoided that life which always wants something new, always wants the future goods and not the past mistakes.

I once told myself that I trust my creative instinct and keep everything I create. But why should I not trust my destructive instinct, instead, and burn the trash instead of saving it?

My old roomy saved all his junk mail in paper bags in his bedroom just in case; in case of what, I never knew. And now here I am, rummaging through my private garbage can of miscellanea trying to find the life I threw away. I want to salvage the mistakes, rework them, edit them, and then maybe everything will be all right. But chasing after and trying to correct past mistakes is a dangerous process and can be an even bigger mistake. Take the Bush War on Iraq II for example. The outcome may shed some light on my dilemma, and I certainly hope I live long enough to see the light.

I suppose a sculptor should have a form in mind, to begin with, and have available a way to chisel it out of the mass. He begins with the end in mind and has a technique for getting there. There is no question, then, of what to keep and what to throw away. Discipline is required for the painstaking process of reaching a certain end. But that has not been my modus operandi; perhaps that is why I have not produced a great work of art or even a life worth appreciating.

Every production is an essay for me; that is, an essai or ‘trial.’ Only a few come through with flying colors. Many starts are false and more are unfinished. My internal rebel insists on doing what he wants to do at any given moment.

Goal, you say? What goal? The rebel in me lives at random. He just says “no” to goals! I am always cleaning up after him and trying to make something of his mistakes. Take this trash, for instance.

I Was A Frustrated Newspaper Columnist

I WAS NEWS PIC

I WAS A FRUSTRATED NEWSPAPER COLUMNIST
BY
DAVID ARTHUR WALTERS

A prime minister of Imperial China started his career on the bottom rung of the ladder to success, cleaning the public outhouse. He observed the behavior of the rats. The fattest ones dared to make their way to the granary nearby, while the lean ones stayed put. He followed the fat rats’ lead, improved his circumstances, and eventually made his way to the top.

“Why wait?” I asked myself shortly after I blew into Miami on the heels of Hurricane Jeanne in 2004, nearly flat broke and with no intention of taking up bookkeeping again to make a living. No, I was no longer a bookkeeper: I no longer kept accounts: I gave them. “Why not start at the top instead of the bottom? Why not land a column at top publication in town, The Miami Herald? I’ll hit up the top man there for a column,” I resolved to my alter ego, “and be the outstanding columnist that I am! Theodore Dreiser could barely finish a sentence when he pestered an editor into hiring him. Why not follow his lead? With my talent and skills, how can I not succeed?”

I whipped off an email to Tom Fiedler, the Herald’s executive editor, purportedly one of the most reputable people in the newspaper business. I asked him to take a look at my work and to give me the break I deserved. I could obviously write up a storm about all sorts of things, the very activity that kept editors employed. I said I was well aware of the steps one is supposed to climb nowadays to become a newspaper columnist, but I felt obliged to skip them because I was a late bloomer who had insufficient time for the process. Besides, the steps were too slippery with decades of bullshit. Most importantly, I was already able to write the best column around – my work speaks for itself. Therefore I wanted him, one of the most admired editors in town if not this great nation of ours, to take me on at the Herald, so that I could enhance its prestige.

Mr. Fiedler responded at once. He had not bothered to read the samples of the work I had attached to my email. Of course I was delighted that he responded at all, for few esteemed executive editors deign to personally answer email from nobodies in want of a work. Perhaps my verbal kowtowing favorably impressed him.

He said he admired my determination, and would not bother to parrot those who already have a high perch and are therefore wont to talk about the necessary rungs to climb before reaching a slot as a columnist at a major newspaper like his. Instead, he informed me that “a complex calculus comes into play in choosing columnists for the newspaper, a calculation that goes beyond the ability to write well; to wit: market need, experience, reputation, credibility in a subject, demographic profile – race, gender and ethnicity.”

“Furthermore,” he said, “some excellent writers simply never get a column because they’re in the unfortunate position of not being the right something-or-other to suit the paper’s needs at the time when an opening occurs. In other words, he said, he could not alleviate my frustration, although he wishes me the best.”

Would I take a polite “no” for an answer? Hell no, I would not! An honest panhandler would surely curse anyone who turned him down, and a serious candidate for a newspaper column would put up an honest fight for the job.

I confess that I resent rejection so much that I thrive on it, doing everything in my power to elevate my high opinion of myself over the opinions of those who fail to subserve mine. Of course my supererogation gives them further cause to reject me, with nary a word in response, for fear that, as the courts are wont to hold from time to time, verbal consideration of my species of argument might dignify frivolity or lend it the color of merit.

Naturally silence is no deterrence to my likes, and in fact provokes me to produce interminable screeds and rants, wherein no doubt there is some merit worthy of judicious notice by the more patient and impartial arbitrator. Just as there is some truth in good humor, truth can be found as well in ill humor provoked by wounded pride. Of course all hell would break loose if everyone spoke their minds truthfully, for there is nothing as insulting as the god’s truth about ourselves; that is precisely why the gentry prefer to ignore it if not make jokes of it. The vulgar likes of me, raised in alleys where no holds are barred, would rather rake muck for amusement than hunt foxes or otherwise join like packs of peers in noble pursuits.

Notwithstanding its local virtues, The Miami Herald has its vices in common with other Establishment papers. They constitute a national propaganda organ for a single party, a party-paper we might as well call The So-Called Truth. Their differences are as superficial as the differences between the Democratic and Republican Parties.

I mulled over Mr. Fiedler’s courteous rejection for two minutes. In the interest of striking a blow against America’s version of Pravda, I hastily keyed the following Reply and clicked on Send before I had a chance to edit it:

Dear Tom Fiedler:

Correct me if I am mistaken, but according your guidelines, it appears that the “credibility” you have identified depends on the gullibility of the public; i.e., the “market need”, as assessed by those who have an interest in manipulating that market for personal and political gain.

As you know very well, many of today’s “reputable” columnists cut their teeth not as reporters but as political hack writers; for instance, the right-wing ideologue Charles Krauthammer, whose reputation depends on his ability to perpetuate the divisive agenda of his fraction. And, on the ideologically “liberal” side we have, for example, a “reputable” syndicated columnist with the New York Times, a divisive political-economist whose prejudice and downright personal hatred of so-called conservatives blinds him to any merits voiced on “the other side” as he is wont to define it.

As if there were only two sides to a solid issue. To take one of the sides, all a fool has to do is read up on the difference between conservative and liberal and how to be one or the other.

Neither side is “reputable” to the other; overall, both sides are disreputable to the public. In fact the newspapers are filled with political hack writers who “think in the box” and who perpetuate the continuous fragmentation of the moral (mental) integrity of their audience. The most irrational statements are made and passed off as reasonable to the unwitting. The like can be said of certain unnamed editors who write editorial opinions foolishly quoted by campaigning political candidates as oracles of truth: “Candidate Joe Blow’s plan would sink every ship in the harbor.” (The Miami Herald)

Today there exists a great “market need” for reasonable discourse that at least attempts to arrive at the truth of a subject from time to time no matter where that might land, instead of deliberately dividing the public and pandering to partisan prejudices which, when carefully examined, reveal how rotten the heart of corporate America has become.

The recent jingoistic conduct of the mainstream media in respect to the pre-emptive attack on the people of Iraq disgraced “this great nation of ours”, and everyone of sound mind knows it. Although the rhetorical formalities were maintained, the differences between news, analysis, and opinion were substantially ignored. In effect, news, analysis, and opinion, despite the formalities of style, amounted to advertising belligerent propaganda.

To justify the selling out of America by shifting the blame to the public is reprehensible in my opinion. The establishment’s media does not really pander to the “market need” or the base credulity of the general public, but manipulates it while prostituting itself to the forces of darkness governing corporate board tribalism.

The Miami Herald needs a writer who thinks out of the box because he has never been in one. Don’t you agree? That writer is me. Give me a call.

Sincerely,

David Arthur Walters

Although I followed up on many occasions, I never heard from Tom Fiedler again. Given the delusions of grandeur inherited from my father, I like to think that some of the provocations I sent to the Herald from time to time helped inspire the paper’s muckraking department – its muckraking has been ‘stellar’ since the paper changed hands.

David Arthur Walters

Miami Beach 2006