Day 256: Defamation (and Another Debate)

I read about an interesting case today (and I tweeted about it, because that’s what I do now).  Florida’s Fourth District Court of Appeal (that’s the appellate court) upheld a Circuit Court (that’s the trial court) decision in Broward County awarding $350,000 in a defamation case against a former client who posted critical reviews on the internet.

The article labeled this a “landmark” ruling, but I disagree (and, you know, with all of the expertise I have with teaching undergraduates and child-wrangling, everyone is clambering to hear what I think about this court’s opinion).  The former client claimed that the lawyer charged four times what they agreed to, which is a factual statement, either true or not true.  Some of the other statements, like the claim that she would say one thing and do another, or that she perpetuates an unfavorable view of attorneys, are more opinion statements.  If the award had been solely based on opinions, this would have been a remarkable case.

I think this is worth keeping in mind for people who like to post reviews online.  First, please note that I am not offering legal advice, as I am not licensed to practice law in the state of Florida, and I would never break the very important rule against non-lawyers practicing law (and also because if I were going to give legal advice, I would certainly not provide it for free – student loans are a bitch).  Anyhoo, when I post reviews online I try to be careful about what I write.  It’s one thing to say, “This is the worst pork dumpling I’ve ever tasted,” or “My pork dumpling tasted like an old sock.”  It’s quite another to say “My pork dumpling was made out of old socks.”  The first two statements are based on opinion, something very protected by the First Amendment (thank God for that or Yelp would be completely useless), but the last statement is a question of fact.  Either there were old socks in my pork dumpling or there were not, and if there were not, what I wrote is an untrue statement of fact, is not protected, and leaves me open to a lawsuit.  (Yes, I know, Internet.  You’re surprised.) Even if my dumpling had been made out of dirty sock, if I were planning to post a review including that information, I would be sure I had a witness to corroborate my story, and a photo, and maybe a little piece of dumplingsock for a souvenir.

When I was still in law school I thought the Constitution protected too much in this regard.  “Why would the Constitution protect lies?”  Great question.  It doesn’t, most of the time (there are some gray areas, especially where public figures are concerned), but sometimes that’s problematic.  For example, let’s say I want to, oh I don’t know, publish my life story, and I have one memory of how things were, and someone else has another memory.  Unless I can prove, very clearly and easily, that my version of the facts are undeniably true, I’m still left open to suit, and even if I ultimately win because I somehow find a way to prove everything I said is true, it’s still a giant pain in the ass to be involved in that kind of litigation, not to mention the huge expense involved (I would like to be able to send at least one of my kids to college, thank you very much).  There is even a possible tort claim for painting someone in a false light, whatever the hell that means.

And listen, much of this is good.  It should not be permissible to go around writing and telling lies about people.  Absolutely not.  I wouldn’t want someone to do that about me or the people I love, and I would want to do that to anyone else.  Still, it’s tough to not be able to talk about things that really happened in an open forum just because it might not be a truth another person wants shared.

I’m thinking about all of this because I’ve been working on my great work of fiction the past few days (after taking a few weeks off).  It’s something I’ve really started to enjoy again.  I can’t imagine anyone outside of a close circle of people would ever have any interest in reading it, but I have found myself wondering, “What if they did?” and thinking about some of these rules in the process.

I’ve also been thinking about it because of the crazy debates we’ve been having, especially some of the talk about little hands.  As I said above, the rules are a bit different when the discussion concerns matters of public interest, or especially public figures, but it really gets to be a complicated question.

Let’s take Trump for example.  He has something nasty to say about everyone, it seems.  Do those people have any recourse?  And what about the people who criticize him?  I certainly hope my comments are protected, at least until he is elected to the office he seeks, in which case I fully admit I am totally fucked.  Look for me somewhere in Guantanamo, I guess.  HW says at least the coffee will be good.

Which brings us around, of course, to the great debate we will witness in ten minutes, in my very own state, in my very own city.  My prediction?  It will be a fairly boring event, with Trump on his best behavior, and the other candidates doing much of what they were doing earlier on.  Kasich will continue to be Kasich.  Rubio will continue to be Rubio, with maybe one or two swings at Trump, but mostly trying to stay out of his way.  Cruz will be Cruz, which hopefully will not involve eating something off of his face the way he did last time.  That was very strange.

Fun, or something like it, will be had by all.





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