Some thin-skinned Florida public officials never have a happy day. This one just filed an unconstitutional civil lawsuit the violates the First Amendment and seeks to inflict a chilling effect upon First Amendment protected activity by a South Florida blogger in North Bay Village.
IMHO: This is an illegal Strategic Lawsuit Against Public Participation, violates Florida law and the First Amendment and will likely be dismissed, with the offending strip club lobbyist and City Attorney likely being ordered to pay the defendant and counter plaintiff's attorney fees. Don't take my word for it -- read the statute:
Florida Statute 768.295 Strategic Lawsuits Against Public Participation (SLAPP) prohibited.—
(1) It is the intent of the Legislature to protect the right in Florida to exercise the rights of free speech in connection with public issues, and the rights to peacefully assemble, instruct 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 and s. 5, Art. I of the State Constitution. It is the public policy of this state that a person or governmental entity not engage in SLAPP suits because such actions are inconsistent with the right of persons to exercise such constitutional rights of free speech in connection with public issues. Therefore, the Legislature finds and declares that prohibiting such lawsuits as herein described will preserve this fundamental state policy, preserve the constitutional rights of persons in Florida, and assure the continuation of representative government in this state. It is the intent of the Legislature that such lawsuits be expeditiously disposed of by the courts.
(2) As used in this section, the phrase or term:
(a) “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.
(b) “Governmental entity” or “government entity” means the state, including the executive, legislative, and the judicial branches of government and the independent establishments of the state, counties, municipalities, corporations primarily acting as instrumentalities of the state, counties, or municipalities, districts, authorities, boards, commissions, or any agencies thereof.
(3) A person or governmental entity in this state may not file or cause to be filed, through its employees or agents, any lawsuit, cause of action, claim, cross-claim, or counterclaim against another person or entity without merit and primarily because such person or entity has exercised the constitutional right of free speech in connection with a public issue, or right to peacefully assemble, to instruct representatives of government, or to petition for redress of grievances before the various governmental entities of this state, as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution.
(4) A person or entity sued by a governmental entity or another person in violation of this section has a right to an expeditious resolution of a claim that the suit is in violation of this section. A person or entity may move the court for an order dismissing the action or granting final judgment in favor of that person or entity. The person or entity 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 a response and any supplemental affidavits. As soon as practicable, the court shall set a hearing on the motion, which shall be held at the earliest possible time after the filing of the claimant’s or governmental entity’s response. The court may award, subject to the limitations in s. 768.28, the party sued by a governmental entity actual damages arising from a governmental entity’s violation of this section. 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.
(5) In any case filed by a governmental entity which is found by a court to be in violation of this section, the governmental entity shall report such finding and provide a copy of the court’s order to the Attorney General no later than 30 days after such order is final. The Attorney General shall report any violation of this section by a governmental entity to the Cabinet, the President of the Senate, and the Speaker of the House of Representatives. A copy of such report shall be provided to the affected governmental entity.
History.—s. 1, ch. 2000-174; s. 1, ch. 2015-70.
From the Miami Herald:
POLITICS
City attorney sues blogger for libel. Is it ‘a threat designed to silence?’
Local politics blogger Kevin Vericker is better known for putting an occasional toe — OK, foot — over the line than for pulling punches. Wielding hyperbole in the rabid manner endemic to the blogosphere, the retired software analyst relentlessly details the palace intrigue of tiny North Bay Village for his 1,000 local readers.
Some people call his blog “nasty.” Others call it “honest.” But for many living on the three islands strung along the 79th Street Causeway, reading the blog, “North Bay Village Reality Based Community,” is the only way to find out what is happening in the scandal-prone village hall.
Now, Vericker is being sued for what he wrote about the village attorney.
“It’s chilling,” Vericker said. “I believe it is a threat designed to silence me during an election season.”
On Aug. 20, North Bay Village attorney Norman Powell filed a defamation suit against Vericker, claiming Vericker libeled him when various blog posts falsely accused Powell of colluding in criminal activity as well as being unqualified for his position. Powell is seeking more than $15,000 in punitive damages for “serious injury to his reputation, both professional and personally, as well as emotional distress, and other actual damages in the form of lost business.”
The suit is part of a growing trend of public officials taking bloggers to court for posts they see as harmful to their personal or professional image, according to Kendra Albert of Harvard Law School’s Cyberlaw Clinic. Melania Trump filed a high-profile libel suit against a Maryland blogger that settled last year in her favor, with a full retraction and significant reparations. While some cases are legitimate, Albert said, the increase in lawsuits against journalists (think Hulk Hogan vs. Gawker) has publications thinking twice before publishing. These days, even facts can be expensive to defend.
“Journalistic entities need to have a fair amount of money in order to defend themselves, and I do think that does represent a threat,” Albert said. “Lawsuits can be weaponized by folks with more power to shut down speech they don’t like. But that’s not necessarily what’s happening here.” Albert did not review the specifics of the case.
Powell, who is black, says in the lawsuit that Vericker’s negative posts about him were racially motivated, and that Vericker referred to him as “boy” in private, despite acknowledging the racial overtones. Vericker, who is white, denies it.
Powell says Vericker’s refusal to stop publishing “knowingly false and malicious statements” left him no choice but to sue the blogger.
“The First Amendment does not, in any way, give anyone the right to spread slanderous and false information in a malicious attempt to smear another person’s character and professional reputation,” wrote Powell in a statement.
In his blog, Vericker often refers to Powell as “incompetent” and little more than a “former registered strip club lobbyist.” Powell has nearly 30 years experience practicing law, and is admitted to practice before the U.S. Supreme Court. He still holds private practice, but has experience working with city governments in various capacities. He has served as a magistrate, and is also the village attorney of El Portal.
To be fair, in 2017, Powell was registered to lobby in North Miami Beach on behalf of an adult entertainment company. And it seems Vericker is an equal-opportunity name-caller. He calls Mayor Connie Leon-Kreps, “Mayor Crazy Eyes,” for example.
“Vericker is a nasty blogger and certainly some things he said could hurt Powell’s reputation,“ Paul Levy, an attorney at Public Citizen who specializes in online free speech issues, said after reviewing the complaint. But that doesn’t mean he’ll win the suit.
“I think a good deal of what’s in [the blog] is opinion. It’s written in a highly rhetorical fashion,” Levy said. Opinion is generally not considered libel. Vericker would have had to publish something untrue for it to be libel.
He might have, Levy said. The blog also vaguely accuses Powell of the following potential crimes: “illegally vacuuming up Homeland Security data,” fabricating police complaints, and encouraging bad (maybe illegal) behavior by other members of the dais.
Vericker agrees some content could be viewed as insulting, though he prefers to call his rude memes and occasional name-calling “satirical,” and says hyperbole is a rhetorical tool for attracting attention to local politics. But he maintains that the facts he presents are always backed up with documented evidence.
Because Powell is a public official, he will have to prove two things to win a libel suit. First, that Vericker published something false as a statement of fact. And second — specifically because of Powell’s seat on the dais next to the city commission — he would have to prove that Vericker knew the statement was false and maliciously published it anyway.
“The standard for a public official is not just that what the person said was untrue, but that they had to have known it was untrue — or recklessly disregarded whether it was true or false — and published it anyway. That’s a pretty high bar,” Albert said.
Intent is difficult to prove. And how much hyperbole is too much is often decided on a case-by-case basis when it comes to lawsuits against bloggers.
“I think it’s a really fine line. I think lots of bloggers make really strong statements,” Albert said. “Even if a particular blogger might say things that we are not sure are true or go too far, litigation that holds that person liable maybe has broader implications.”
That’s why the threshold for libeling a public official is so high, Albert said while acknowledging the sometimes legitimate concerns of public officials who have sustained unwarranted damage to their reputations. The law is written to protect the integrity of the First Amendment and encourage debate and discussion that is important to democracy.
From left-North Bay Village Commissioners Jose R. Alvarez, Eddie Lim, Mayor Connie Leon-Kreps, Vice Mayor Andreana Jackson and Commissioner Laura Cattabriga at a commission meeting on Tuesday, May 08, 2018.
Pedro Portal pportal@miamiherald.com
While according to Powell’s complaint, “Vericker is neither well-respected, nor does he engage in any activities which benefit his community,” Vericker sees himself as an important part of the local democracy in North Bay Village.
“The media in general no longer has the reach into smaller towns, and locals are not well informed about the issues,” Vericker said. “I started the blog very specifically for locals to read and share information about what is going on.”
Even for the average South Floridian with a high tolerance for political shenanigans, the news out of tiny North Bay Village this year has been bizarre. A personnel dispute that spiraled into accusations against the mayor for blackmail. (The accusations were investigated, and the mayor’s name cleared.) A series of conveniently timed firings resulting in several lawsuits for wrongful dismissal. And a whistle-blower suit filed against the city by the former police chief, Carlos Noriega.
In each case, Vericker broke the news first to the ire of many on the dais. The bad blood between the blogger and the mayor precedes Norman Powell’s appointment as village attorney in November 2017 by years. Even though Powell claims Vericker knowingly and recklessly caused him personal harm by publishing false statements, Levy is skeptical of the motivation behind the suit.
“Some of the blog posts aren’t even about Powell. You have to wonder if Powell isn’t suing as a cat’s paw for his city clients,” Levy said. (Powell maintains it’s personal.)
If libel suits like Powell’s aren’t really about personal harm but have broader political goals of quashing dissent, then they may be considered SLAPP suits, strategic lawsuits against public participation, according to Albert.
“In that case, the purpose is to shut the person up,” said Albert. SLAPP suits are illegal under Florida statute, even though they don’t usually serve their intended purpose. Being the victim of a SLAPP suit “often brings that person a lot more press than the niche blog would have gotten otherwise,” Albert said.
Vericker is refusing to take down any of his content. He has gotten a lawyer and hopes to get the case thrown out. The cost of defending himself could reach the tens of thousands if the case goes to trial. It’s a price he is willing to pay, though it won’t be easy for him, he says.
“Powell knows it’s an expensive and difficult process to run this through the court. He’s trying to use the threat of significant financial damage to get me to shut up,” Vericker said. “But I won’t.”
This article has been updated to more accurately reflect the type of lawsuit in the Hogan vs. Gawker case.
The scam 'rule of law' SLAPP statutes mean nothing.
ReplyDeleteWhat counts is corrupt money gained on a tilted playing field used to strangle, choke, and murder, any opposing viewpoints.
Melania Trump, who prostituted herself to gain 'brand' value, 'won' her suit against Wester Griffin Tarpley and like the bully that she is made him apologize on bended knee.
https://www.cbsnews.com/news/melania-trump-libel-suit-settled-another-filed/
A high profile precedent setting immoral chill of the publics voice!!!!!
Murderous scum bag pretenders all.