In Florida, citizens who circulate recall petitions to remove elected officials are protected by the Anti-SLAPP statute (768.295), which prevents lawsuits filed primarily to chill their constitutional right to free speech and petition. The statute requires plaintiffs to prove their claims are without merit and brought solely to attack protected speech. Courts may dismiss defamation claims against recall petition circulators because such lawsuits would create a chilling effect on citizens' exercise of their statutory right to participate in the recall process, as established in Florida case law including the America decision.
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Veach, Murphy Defamation HearingAdded:
If you need to take a phone call or send a message, please step outside. Thank you.
>> All right. We are here for the King case 25 CA 5565. If you'll not your appearances, please starting on the plaintiff side.
>> Good afternoon, Morgan Bentley.
John King is Mr. King Woodson. To my right is very good. Thank you, sir. We sound the hallway for Mr. Beach and Mr. Murphy. Beach and Murphy.
>> Okay. You're one of the parties. Where's your lawyer at?
>> Sound the hallway for Mr. Pizzy, please.
Right now, Ry and Bill are waiting for their attorney who isn't here in the courtroom.
>> That was the old notice, but we sent out a new notice.
>> Okay.
>> We sent out a new notice on May 29th setting it for five eyes since there was a request for media room.
just run downstairs real quick.
>> You see John and Karen at the uh at the table and Ray's waiting for the attorney.
As long as they stay close to their mics, we should be okay.
See Karen's got Karen and John have a little audience behind them there. Some folks in the community behind a one-way mirror in the media room.
You two are welcome to sit at the table.
Uh hopefully your attorney shows up. If he doesn't, we'll go forward with you.
>> It's 130 quartil is long gone and the hearing is scheduled for 2 o'clock. So, if you're going to hire a Miami attorney, you need to ensure he's going to get here on time, which means he needs to leave there three, four hours early in case there's an accident or something otherwise. So, we're checking downstairs and um start here shortly.
Not a good start for Ray and Bill.
Yep.
>> Deputy went downstairs to check and see because they changed the courtroom because we needed the media room.
It appears the deputy said, >> "I hear a phone. There should not be phones on in the courtroom. Please step outside."
>> It's not me.
was talking to the attorney.
>> All right, I'll step off here. Let me know. You can keep your seats, folks.
>> We're just going to keep the stream going, everybody.
The judge is a little ticked off that Tizzy did not show up on time.
Apparently, he's in the building somewhere. We cannot find it. Is a big building.
I got a lot of steps in. But I also got here an hour earlier.
>> I don't think they'll hold them in contempt.
>> I don't think this is going to take three hours anyway. So, can you guys hear me? Okay. I don't know. Hopefully they'll stay close to their mics because the speaker is in the ceiling here. Can you hear me? Okay.
Connect. If you can't hear what's going on in the trial, I have a backup mic that'll try and connect.
>> John King did not wear shorts today, so that was a good thing.
>> Kim and I were wondering this morning All right. Well, we'll see how it goes.
As long as >> they're loud talkers, they should be okay.
>> I got a backup mic here, but >> just adding to the drama.
almost didn't let me in.
>> The guys downstairs had no idea what was going on. There are no cameras allowed in the courtroom. I did not know that.
In New York, there were cameras in the courtroom. We just had to get it approved by the judge.
No cameras in the courtroom here. But all the some of the courtrooms have media rooms like this. It's not really a media room. It's a cubby hole with a dirty glass window.
There he is.
And we're probably going to get rolling here.
And the reason we're here is because Ray and Bill have asked for this defamation suit to be dismissed.
Fizzy was once on a council somewhere down in Miami and he got kicked off. So he he knows all about this kind of thing.
And then he he went to court and won the court case, but it was years later and somebody had already been in his seat.
I don't recall if he got his seat back.
He might have got his seat back eventually or ran again.
He's a talker. He likes to talk.
This will not be carried live on Court TV.
We are now 8 minutes after two.
Very clean bathrooms here, by the way, if you're wondering.
See Karen's husband in the crowd there.
Also, Bev Milligan and her husband are here. Danielle on the beach on the other side in the crowd. Nobody.
I didn't need it, Holly. Not yet, anyway.
Just keep your seats, folks.
As a final reminder, if you have a cell phone, please ensure it's turned off and put away. If he sees it, it's getting taken or you're getting kicked out.
>> All right, we've done record appearances. Mr. Pizzy, if you'd like to note yours since you're 10 minutes late.
I'm sorry. I was driving from uh Miami and uh I got a little wash, but I apologize. I'm happy to be here. Thank you.
>> Okay. Thank you, sir.
Plan accordingly. Everyone comes from somewhere else. They're from Sarasota.
You're from Miami. People come from all over. But you got to be sure you're here on time because what's your hourly rate?
>> 250. And what's your hourly rate? 650.
650.
>> 650.
>> So 900 bucks. You know what's 10 minutes of $900?
>> I'm not good with math, judge.
>> A little more than that.
>> All right. So let's move forward. Um, at the last hearing on May 7th, the court specifically said, quote, "For the clerk's minutes, both sides need to prepare physical notebooks."
>> Pizzy did not prepare a notebook. I heard you talking about it.
>> Evidence collected need to be provided to us in the >> I received a nice big fat notebook.
other things from the plaintiff side, but I didn't receive a notebook for you.
Did you not do one as I directed you to?
>> We sent in a u notebook on May 6th and I was under the impression that we sent in a copy of my notebook for today. Uh but I will hand my notebook.
>> I want to take yours if you need it.
>> I don't need it. I'm going to give it to you. I have it. Okay. Fair enough.
>> You have my And it's good to see you, sir. I suspect I have read through theirs and I've not read through yours.
>> Two strikes.
>> All right. Um, so we'll go ahead and go forward. The the issue for today, there's a couple would be the motion to dismiss and I think there's the discovery related issue too or concerns on this end as well.
>> All right.
>> Proceed. Is there a podium? I can speak.
>> You can speak from your table if you like. If you prefer the podium, I can have it brought out to the middle, whichever you prefer.
>> Okay, good. Microphone.
>> I only hear out of one ear these days a closer.
>> Which ear is the better ear?
>> My my left ear.
>> Okay. So, why don't we put the podium over there and you'll hear me a little bit >> for your edification. There's media in the back behind the glass, so they'll get a better view of you. that way too if they'd like. Okay.
>> Good to see you. Glad to be here for a while.
>> Thank you, sir.
>> Microphone.
>> I know you said three hours, I assume, is an hour and a half.
>> Well, three hours is an abundance of caution. It's more than enough time. Um, so hopefully you don't need an hour and a half each, but take as much time as you reasonably need. Thank you.
>> Yes, sir.
Michael Pizzy on behalf of William Beach Murphy who were present before the court.
We here on our motion to dismiss.
This is an extraordinary case because the plaintiffs who were the subject of recall petitions that was submitted for statute 361.
>> I thought only one was recalled. Were they both?
>> They were both recalled and landslide by the people. But the A judge found a defect, a technical defect in one of the conditionals, I think it was Mr. King, indicating that >> defects a defect. So only one ended up being recalled at the end of the day.
>> Yes.
>> That was Miss Woodson. Correct.
>> Yeah. Woodson and King were both subject to recall petitions and a recall vote where the electorate voted by recall both of them. One of them was removed.
The is still in office because the there was a defect in the petition and both so they were both subject to recall petitions and voted on.
So what's extraordinary about this case is that the statute gives citizens the right to petitions and petition.
Every every citizen has a right to constitutional right the first amendment of the foreign constitution in addition to government in this case we have two specific statutes that are in play in addition to the common law one is one of the statute 768 295 the soal slap statute and that statute policy in that statute is prevent doing what the plaintiffs and their lawyers are trying to do later on which is to sue people for the primary political speech and obedience they first statute we'll talk about in a little bit is statute 76895 the statute which is the polic policy.
The policy on the language of that statute is to protect every pharmacist, protect their right to petition, speak at meetings and their government express their opinion about their elected officials and certainly petitions and engage in retreat.
in this particular case is being targeted and spending a lot of time lawyers because directly directly because it's not a case where they're saying well you know they they said things about my family they said things a case where it says the lawsuit shockingly The law specifically says on the face of the complaint they're targeting them because of their participation in recall committees which they have a statuto right I don't think there's any case not really any case where anyone's ever a plaint has ever survived the statute where they specifically said and I appreciate their honesty I appreciate their honesty in the lawyers but they specifically said They didn't hide it. They didn't say, "You know what? We're suing Peter Murphy because they went to Starbucks and said that I I was a bad parent or whatever it is." That they're not saying I'm suing feature Murphy because when they were knocking on doors, circulating the petition, they made comments and said, "I was a bad accountant or a bad lawyer. I was a tax cheat."
They explicitly clear your and make your decision not because the lawsuit is they explicitly state you are suing them the defamation because they circulated a recall petition they had the right to circ went through a vote election by by the chief judge. The second argument is well I don't think they're contesting the right to petition in that regard.
They're contesting the statements that were made in the context of that.
Correct.
>> So that's the issue, right?
>> Well, I think that they have absolutely no right under the slap statute and the former statute and under the the former Supreme Court's decisions on defamation. They have no right to sue them or any citizen because of the content of a recalled petition that went that went through. I think they would agree with you on that. What their position is is the SLAP statute doesn't protect defamatory statements and that's their position, is it not? That that allegedly your clients made defamatory statements in the context of the distribution or within the context of the petition itself. They're not saying that they made defamatory comments.
>> They are saying that >> engaging in distribution. They're stating that the recall commission that was certified and that was that was that they distributed as part of the recall committee is stating that those grounds are on the grounds grounds set forth in the petition that they circulated as chairs and as >> that's that's the alleged defamation correct >> and I'm going to explain Why should there are four reasons to dismiss number one round number one they don't plead the elements of defamation and I'm going to outline the four reasons for dismissal and take a few minutes and explain why each of the four reasons individually is a basis to dismiss Reason number one is that they don't plead the elements of defamation.
by extremely bones.
They lump together their roles as individuals as participants as chairs of the two recall committee to remove what's in the recal committee to remove king and they don't state that they made any comments outside circulating to the legal commission. One of the problems is the definition you need to say that Mr. Leech and Mr. Murphy on X date made the statement this this lawsuit must be dismissed because it's kind of jumbled mess because what it does is and I'm going to cite the ridiculous. So number one they don't they jump they jumble everybody is a recall committee together and based upon the language of this anyone the recall petition will be the class can be sued the way they pled and then I'm going to get to that three isn't that permissible I mean you you can have five people involved in a car accident and say I only want to sue two out of the five that's up to them to decide how many alleged tortas they might want to sue, right?
>> And when you see somebody as chair of a committee, one of the flaws are is the committee a corporate entity or is it just kind of a madeup? We say there's a committee, but there really isn't. is driven by individuals behind the mask.
>> Well, Florida statute 361 sets local parameters that they're required to require to follow with the court's office stating that this committee recall and everybody law everybody signs petition of that committee.
If you sign the petition, you're part of the committee.
>> Yes.
>> So, if they prevail in in suing one of your two clients or both in their capacity as a a committee representative, are you saying then that they can go after anybody that signed the petition to try to get payment of any judgment they may get? Let me look at their as ridiculous as it is. That's let me let me look at their >> My question to you though is as you've sued them in the capacity as as this committee you know ABC Inc. is an entity or a corporate entity that has an ability to be sued directly or ABC company uh is there any formal company or incorporated entity i.e. This committee is is in its own entity in and of itself.
>> Number one, I've seen people seek to jump against committees in general committee and members cannot do XYZ different than you could against LLC or if you look at the complaint if you look at attachments A and B to the complaint which is the petition that's sent to the voters.
It says as follows and I quote exhibit AU upon signing this petition you become part of committee chair of the committee is William Beach so let's let's be clear the petition that they attach to their says every single person >> yes we all know that everybody that's on the committee Everybody that signs is on the committee. They're suing Bill and Ray.
>> That's not what I'm saying. That's what >> judge doesn't buy it.
>> The question is are you saying that some poor slob is out there signed the petition and said, "Hey, I agree with this. I think this is true and I want to I want to sign this."
Everybody's become part of the recall committee and to be If that theory is correct, yeah, every citizen who signed the recall petition could be uh could be sued as part of a recall committee and there and if you look at the complaint and and that's what they're asking to open because if you look at the complaint, there's no allegation. But what I'm getting at is is there some committee that's incorporated that has assets that you could recover your judgment on or are we just spinning our wheels suing them in their capacity as a committee member?
Is there some entity that's legally recognized as being a committee that that could compensate your clients if they recover it against them and their capacity as committee members?
>> I'm looking at you all, not him.
>> Okay. Yeah. So I was didn't know if you wanted to thank or not. Um technically no there is no corporate entity. Um this is one of those and as you know the law is pretty clear. You have corporations you have individuals. Um the reason he's joined is actually he's saying that's why he's joined in that way. We joined him in that way because he he is in that Mr. Mr. Beach. They were both individually and on each of the the petitions listed as the chair designate.
So we're listing as chair designate but there is no committee there's no corporation that has assets in the name of the committee to recouping for instance it would be called the committee to recall John Kaine. There is no such animal. Um it is is correct that it the statute does say that every person that signs becomes a member of the committee but there is no corporate committee that is separate apart from the individuals themselves.
So in a in a method in a way yes we are if the if the question is are we spinning our wheels about collecting judgment against the committee the answer is yes there is no committee to collect against if we are covering our bases as to which hat Mr. Murphy or Mr. each was wearing whether it was just purely individual or purely as chair that's why he's pled in both those capacities there is no committee to collect from nor do we do we make any allegations against the committee as a whole we only make the allegations against Mr. The short answer is the Florida statute book 361 says you're required for committee city and if you're not proceeding as a committee of people you can't so second point that an independent basis a second independent basis one they haven't pled course of action and two they haven't properly pled express malice under the Florida common law and the New York Times and as my colleagues on the other side which was that your primary intent was to something you did was that's the NAR case as well from the Florida Supreme Court case. Yes, Nodar.
>> Yes.
I think first one, >> you want to tell me what the other two points are and then you can go back to one.
The other points are that they violate the slap statute 76295 and they actually violate violate 61 which is recal statute.
So they violate the recoil statute 61.
They violate the slap statute. They haven't pled malice. They had a course of action because they had no plan any any action major Murphy other than everybody else in the recall recall committee position.
Let me point to the complaint because that's so let me talk about Mr. speech as chair of the committee to recall drafted and circulated conditions >> to recall John King as it's written >> and correct and with regard to Murphy they state Murphy 21 same paragraph 9 Murphy state explicitly that they're suing them because quote as chair of the committee they drafted and circulated a petition. So you know suing somebody as chair of the committee suing suing the committee maybe if they would have said they you know what while they were circulating the petition Mr. Ber and Mr. page made some defamatory statement about them. Check them aside from circulating petition, but they specifically said that they're suing them in the on the count one and two, they said that they're suing them. quote as chairs of a collective committee for all the other people to support this.
Second paragraph 11 and 22 paragraph specifically states quote first 9 and 21 Beach and Murphy state that they're being sued as chair committee the collective committee a whole bunch of paragraph 11 and 22 state that as part of the petition and >> manacious petition.
>> I'm not sure what mandation I'm a kid from Brooklyn. I'm not sure what media means, but I look it up before this case.
What I will tell you, judge is thankful who uh what I will tell you honor is that whatever mandacious is um I think they're saying that he uh that what they did in in 11 and 22 that Murphy whatever they did they did quote of these petitions and then if we look at exhibits one and exhibit two They show one the exhibit show that number one as we stated already as as part of signing this you become part of the equal committee the same as each andor which means that I guess thousands of people are part of part of the regal committee and I guess if they read about this I guess they'll be standing to know that some people think that everybody who signed this petition and circulated it mistaken look at exhibits A and B anybody who signed and circulated this petition today would be subject thous.
Second point is that the petition is signed and actually each petition is signed and submitted by each each individual person. So they asked this and that's really I want to get to my my second point which is so I think that could be wrong but I I'm proud and willing to make that that's ridiculous. You can't sue K and be for defamation with their participation where they collected participation in the recall provision.
supported by the people of the chair.
That's absurd and that cannot happen.
I'll get to my second point about Dallas if we get there. The second point is under Florida law was very clear that when you see somebody actually have actual malice actual malice on the federal must be shown public official.
You've got to show that because this knowledge of reckless knowledge of the falsity or reckless disregard of the truth or false and on the Florida you've got to show express my colleagues my colleagues my colleagues he says we acknowledge you got to show an express malice under common To overcome the common privilege to overcome the common privilege, you've got to show nose 8034.
You got to show the primary voter is inje said that you have to show the previous injury and there's got to be sufficient evidence at a minimum serious doubt as I would say no got to show the crime And what I will tell you and that's on real time got to show the truth and you got to show express.
There's a reason there's a reason and that is that citizens of the United States especially the companies have an absolutely godgiven right if they want to get up and be critical and bite the pot pan knock our doors and made critical comments of public officials from the president down to local community councils down to the dog catcher. They work very hard down to the dog catcher. They if they they have an absolute right to do that and the reason you have to state is you don't want citizens who want to say I don't like this president. I don't like the former president, the current president, future president. I don't like this council member. I don't like this person who's the box or you want to shield. It's the job of the courts to shield those people and protect those people. You don't want to have a situation in Fort Meyers especially now in Fort Myers. We might have a situation we're going to chill the first Fort Meyers and everyone's going to be afraid to criticize the commissioner and someone's going to say you made a mistake. You got it wrong. they now going to get sued.
Let me look at the complaint based upon that standard and how they they pleadings or hopefully in I will tell you your honor what will not satisfy the mal and you know what in my younger days I tried it and it got slam dunked enough time so I realized you can't do that it would be nice if you could just Today the defendants engage in reckless just to go after the truth and the defendants uh did their due diligence and they either they either intentionally lied. They engaged not falsity. The defendants had a primary intent on the far and by the way on behalf of my clients we appreciate the the times.
>> Oh god.
>> But in in Florida, you can't just be the magic because respectfully the malice standard on the US and the express malice standard and the no cases the no standard that would be absolutely meaningless if lawyers can just say just plead the magic word. You can plead the magic words and the malice means because then you know what's going to happen and then I'm going to explain why if people are allowed to survive the war plays an important role as defamation especially when you have citizens engage criticizing commission and And as long as you >> What he's trying to do is say that the lot that when Bill and Ray accused Karen and John of violating the sunshine law, taking gifts from developers. That's that's just criticism. That's what he's trying to say. And you should be allowed obviously you should be allowed to criticize public officials, >> but that's not what John and Karen are saying.
would never dismiss at least may maybe later on on summary judgement or a trial but but no court would ever dismiss a defamation lawy they pled they pled first of all you know how you know that they didn't do their homework and and plead ultimate facts ple Yeah. Okay. Maybe they're going to argue you can prove malice by circumstantial evidence. Okay. Well, they need to plead to meet this heavy burden of express malice in Florida. They need to plead something more than they play.
And here you don't have to know that they haven't been that if you look at the counts against Beach and you don't know they're too formalistic and boil plate because if you look at the counts against Beach and Murphy they're in terms of pleading malice they just inserted the same boil plate in Beach as they did for Murphy.
They should have at least changed the words a little so it looked like they actually were pleading specific facts. But they pleaded boil here twag 14.
Paragraph 14 says that beach was invited to present evidence.
They didn't do it.
>> Well, if you're going to read it, read it as it's stated. Mr. of each has been invited on multiple occasions to present evidence to support these lies. He has not and cannot as his allegations are wholly based and false.
>> Well, respectfully stating that somebody has been invited to present evidence during >> that's an irrelevant allegation. I don't disagree.
>> That's irrelevant. So with all due respect, the fact that pleading that he, you know, was he was asked, "Hey, come show me the evidence and didn't do it."
That absolutely does nothing to establish what his primary motive was or that he knew any information was false.
So paragraph 14 and if you look at what we want to paragraph 25 Despite having multiple opportunities to present evidence supporting these facious allegations, Mr. Murphy has not done so. Kenny has so those two statements don't show next. So, what else did they do? How else did they try to make that stand?
>> Well, they did use the word maliciously published. Does that not satisfy the malicious aspect from your perspective?
>> I'm sorry. Absolutely. Just just the word using the word delicious doesn't just throwing that word in there doesn't mean you can't just you can't just put the magic words. Here's what they've said. Here's what they've said in a minute. They've said in paragraph paragraph 13.
I've learned in the past two minutes that when I quote a paragraph, I'm going to read it online quickly. So on 13, you're right.
>> Well, I see it. You see it, he sees it.
Those folks don't have copies of it, whether the folks that are watching online or wherever they're watching from.
>> Mr. Mr. Beach maliciously published these statements with knowledge of their falsity.
>> Read it. Read it again.
>> Mr. V miciously publish these statements in the kingdom with knowledge of their falsity reckless disregard to Mr. Murphy.
Mr. Murphy, it says, oh, here we go.
Paragraph 24, Miss Woodson denies Mr. Murphy's sham claims as these events never occurred as the allegations.
Mr. Murphy maliciously published these statements and puts a petition with knowledge of their falsy practices.
That just takes you real time trying to be some of the mal standard and as boiler plate and just puts it there that factual perspective that is never it's never if we're a federal law just boil the plate you know somebody is preparing a lawsuit somebody back to the office well you've got to show mountains okay let me go you go ts me solivant how do you show mountains well you've got to know that they did it with knowledge of their falsity or survival truth. Okay, Mr. Murphy and Mr. Mr. Murphy and Mr. Bed knowledge of their falsity and survival that simply >> they did the standard that's that's conclus that that does not meet the standard for finally what else do they say >> finally >> they say in paragraph 10 that Paragraph 10, they say that Mr. Beach published the king petition to members of the community with the intent of King's reputation based on false allegations not reading portions of it. Go ahead.
>> Mr. The beach published a kingdom to me community to interpretation and having removed from her office based on false was threat in wise for the sole purpose of public good what they don't do is they don't provide any detail they don't provide any details as to how or when Why?
But it does not it does not print this.
It doesn't print any details as to how as to how I want to jump to number four and that is why this violation is inconsistent.
He says what the lies are in paragraph 11.
Alleged lies.
>> Well, they're saying everything.
>> No, he's not saying everything's a lie.
>> As part of the menacious king petition, Mr. Beach falsely states that Mr. King one engaged in private conversations to coordinate with council member Karen Woodson, soliciting a replacement town attorney. two, received unreported gifts of meals from parties who were seeking land use approvals from town council and three dictated the removal of multiple town contract employees.
Mr. Beach further falsely states that such actions amount to misfeence and malfeasence of Mr. King's official duties. So those are the alleged defamatory statements.
>> Well, they just quoting the petition, >> correct? He was saying that >> the prior paragraph nine which is attached to the petition that there were quote categorically false close quote statements or allegations and then he specifically identifies what those allegedly false or defamatory statements or are >> correct what I'm saying is those statements are the statements in the >> correct he's he's not saying that outside of the petition when they knocked on Sally Sue's door they told Miss Sally you Now, Mr. King's a dirty rod. He's a scoundrel and he likes to deal drugs and he shoots up heroin every night. I mean, that's just the point. And you correct they're quoting there is not necessarily different circulated.
If you look at the slide, >> well, you're not asserting there any other defamatory statements, are you?
It's just those three as extracted from the petition, right?
>> Yes.
>> Okay.
So, if you look at the Florida recall statute, it states that I off it says as follows 3A upon receipt of a written determination of the requisite signatures were attained.
The clerk shall one serve upon the person saw the copy of the petition within 5 days after service defense state subsection three equal petition and defense.
>> Yes, he did.
Within 5 days after the receipt of the defensive statement or after the last state of defensive statement filed, the clerk shall prepare a document titled recall petition and defense.
The recall petition and defense must contain lines which conform to the >> Yes, we know all this, Pizzy. We know all this. your sting parts and and so if you look at if you look at tabs 89 if you look at my packet that I sent on May 6 last documents I don't I don't have that last but it says as follows We attached a copy attach a copy of the under the recall statute. The petition cannot exceed.
They don't want war in peace in a petition and no one's going to read it and sign the petition.
>> Yeah. But the statute prohibits more than we want to work. They won't take it. It's >> okay. So what's the point?
>> Why it's so important to discuss this case under the big statute.
What happens is Well, we're not really worried about the recall process. That's the subject of a different lawsuit, right?
>> Well, no.
>> So whether or not the the petition was valid or invalid, if someone made defamatory statements in it, it's still actionable if it if it gets over the respective defenses or privileges.
Right.
>> Absolutely.
>> I could not disagree.
>> So let's just go back to the example. If we said that in the petition it said Mr. King's shooting up heroin every night.
He's dealing drugs out of his city council chamber and that's put in a petition and the petition's 300 words and since it's over 200 words that petition technically is invalid that negates the the theoretical defamatory statements made therein less specific rounds.
>> I understand that and What I'm hearing you say is if somehow the petition is thrown out, that basically defeats their ability to pursue any type of defamatory claim in any form whatsoever. Is that what you're saying?
>> Yes. I'll tell you why.
Because the Florida recall statute under the recall statute once you gather the 10% of the signatures that the court certifies it. They then go to King Woodson and say the petition was certified. It's just an emphasis actually. You know what? 10% of the voters under the Mart statute sign this and they support this and they believe this to be the case.
>> Well, that's not necessarily true, is it? I mean, people get asked to sign petitions all the time to get things put on the ballot. Some people say, "Yes, I agree with that." Or, "I don't really know, but if that's something people want to vote on, I'll sign it." Yeah.
Right.
If you look at if you look at >> I'm still trying to get over the mental hurdle of you saying if somehow the petition's invalidated that negates their ability to move forward on a claim for defamation.
>> It hasn't been clear yet.
First of all, the recall petition says upon signing the petition, you become part of the recall ticket.
>> So this is back to this again. Somebody standing outside or a and signing >> that's more of a northern story. It was in Georgia when I lived there.
>> was signing the petition uh in this particular case by signing the petition they do two things. They say that becoming part of the recall committee saying they're stating they should be let's be clear. Everybody who signed this recall petition became part of the committee. But but again, like that's wholly irrelevant, isn't it? If if she, he he, and I all came at you and cut you with a knife. In theory, you could sue all four of us.
But but you could decide, you know what, I only want to go after Kyle and Quentas, and you know, I don't want to go after the other two for whatever reasons. You know, he doesn't have a pot to do his business in, and she's got all her assets in a trust.
>> I most respect. So it I I'm not seeing how that undo the defamatory statements that if if your two clients allegedly made defamatory statements and and a hundred other people or a thousand other people said, "Yeah, we agree with that."
And the petition's thrown out for whatever reason. It doesn't undo the fact that statements of some kind were made that they contend defamatory, not protected by some privilege.
>> Two answers.
>> Okay.
There's a vast difference between stabbing somebody or shooting somebody or punching somebody. Okay. Well, that's a bad analogy. But look, let's just say in the defamatory context, you say horrible things and she says horrible things and he says horrible things. Oh, you know what? I have every >> They can still just decide to sue you or her or him or that. You know what? I've been damaged by all three of you saying that and I'm going to sue all three of you. But just for the fact that other people signed on board doesn't and they're not pursuing them doesn't mean can't go after them. Does they can sue everybody who signed the petition and maybe they can sue every res.
I tell my clients you can sue anybody you want to with a piece of paper or pen and a filing fee. It doesn't mean it's valid.
I've submitted I think it's six and seven. There's no dispute about no dispute about there's no dispute about what between myself and my colleagues the petition says what the defense was it it's all in the record it is so let me just after as part of the process before it goes on the ballot Mr. King and Miss Woodson or any commission they need they get to read the petition and draft a defense >> they did >> and say you know what I disagree with this is total BS this is a lie this never happened and then their statement their defensive statement can I one Yes, sir.
>> He's falling apart. He's going back to the recall.
>> He should have He should have gone stuck with the anti-slap defense. This is a train wreck for him.
>> Yeah, the judge doesn't want your crap anymore.
I'm trying to turn to the page the recall petition and defense council member of John King.
>> Yes.
>> Okay. Go ahead.
>> Here's why this is different. Here's why this is different. Here's why this should be what was circulated to the fifth. Here's here's what doesn't happen in the streets outside the network.
If somebody goes to Starbucks, I know this is Starbucks.
Somebody goes to church. I spent a lot of time. Somebody goes to Starbucks and says, "I think this person's corrupt. I think this person's uh corrupt. I think this person stole money or whatever it is.
What doesn't happen is and it's an important distinction.
What doesn't happen in Starbucks is the person I said was a problem or a clown or thief. I don't get to drag that person and call them up and bring them to Starbucks and stand in front of the person and say, you know, that's not true. I never did that. With regard to the recall petition, here's how the recall petition deals.
The Florida legislature, Florida legislature in enacting 360, they came up with a very clever, very strong statuto mechanism.
And that is that if an elected official thinks that the recall petition is slandering them is not true, this the statue gave them gave them a mechanism. They get to write a statement.
>> No, no, no.
>> Line by line. And in this case, the king and Woodson rebuttals, I think, is probably twice the size of the allegation in the petition. So they came and put some rebuttals on the same or twice the size of the allegation in the petition that that people signed the thousand people signed and the people the 15% before the recall petition went forward and here's why this is different. The former legislature created said the following.
Wait a second. When the Florida legislature passed water statute 546, the legislature said to wait a minute, what if somebody hates a recall petition and the elected official thinks that it's not true, thinks they're being slandered, thinks that these are not true.
>> Well, here's what they do.
>> They get a chance. They're doing it right now.
>> Rebuttal and before before it goes on the ballot.
15% of the registered voters have to read their rebuttal saying it's not true.
So the 15% of the voters who voted to put this on the ballot, not Beach, not Murphy, the 15% of the registered voters >> getting riled up. people who voted to put this >> going to pop that button >> only did so after being presented with King and Woodson's lengthy rebuttal stating these allegations were not true under the statutoism which provides a basis for review for refuting false statements that's not going to corporate defamation the Florida legislature could have said you know what judge when the Florida legislature enacted 100 361 they hear said listen listen King and Winston or anybody else if you think that if you think the content of the recall petition is false and not true the legislature please you have a remedy plan soon legislature and we're giving you a statutory mechanism. If you disagree and you think what they're saying is false, write your rebuttal.
And you're not going to you're not going to this will not go on the ballot unless every single person who read the recall.
Everybody who read the recall petition circulated by Beach and King and hundreds of other people, >> he's they're not arguing they that they lost the recall. They know they lost >> why they think those statements >> he's litigating the recall again >> the people% of the population not they voted to put it on the ballot and not only did the clerk certify it but it went the chief judge of district certified election it made it to the ballot and the people Although both petitions passed by a pretty overwhelming majority, one question was so in my very conclude.
>> Thank you.
>> One minute.
Here's what they are saying to it. And this scares I catch a bad word, but this scares the heck out of me. And standing here today, there should be a shimmer down the spine of every citizen in the state of Florida. Why?
Because here's what they're asking for.
Here is what they're asking for.
They are asking your line to circumvent and maybe scare any citizen.
>> Oh, come on. never circulating a rep petition again because notwithstanding the fact that under the statuto mechanism 14361 enacted by the legislature the same legislature that passed the stop statute the statuto mechanism the same legislation that passed 768.295 is that statute they enacted a statutory mechanism of 1.36 have said, "Here's how you deal, judge. Here's how the legislator is going to deal with false statements.
Here's how you deal according to the legislature with concerns that you're being slandered and these allegations are false in the confines of petition.
You write your rebuttal explaining in great detail why it's false >> in passing that statutory provision or mechanism as you said i.e. the ability to respond to statements that you believe are false in a petition like this.
Um did the legislature in their legislative history say this is going to then thus preclude the right to pursue a common law cause of action for slander?
>> No. Bible or anything of the sortation?
>> They didn't say that. But what I will tell you is that >> I thought he was recapping already.
They're asking your honor to in my opinion in a land position and say that anybody who circulates I'm assuming every elected official I was once mayor I was subject >> yes you were >> came closer than I would like to but I'm going to tell Listen, you're saying you're asking around the home land that every single person who complies with their right to certain is now going to be subject >> to tell the truth.
>> The elected officials don't assuming that. And let me make it clear.
Well, elected officials have to have a thick skin regardless of the type of elected official as you indicated from your own experience. Hopefully, that's the case.
>> My experience was, >> but having said that, you still have a right not to be slandered with malice if you're a public official for that.
>> Yep.
>> My view was if you don't want to be criticized, don't run for office. But that's okay. Otherwise, >> that's not about criticism, doofus.
people what I would say judge is that here's the problem is if your honor does not dismiss this case the message to every everybody not only here everybody in Florida is going to be that if you dare to sign a recall petition even though they're going to get a rebuttal a Woodson or King or somebody else can sue you for defamation or slander if they don't and let me say this probably I can't imagine judge I can't think of a mayor commissioner commissioner anybody I can't think of any local public commission judge who's going to read a recall petition just by their very nature in order to even get the petition certified by the clerk and the chief judge You have to allege malpuses.
So that means the following because you have to allege malpas even get certified your honor. I doubt that there's any public official in foreign history who's been the subject of a recall petition who didn't want it to be who didn't think they were being in some way slandered or defamed because of being accused of malf they didn't do so let me say this I can't imagine seeing I can't imagine any elected official who's accused of malfeas for this reason who isn't going to think that he's being somehow generically defamed or stand by someone but the remedy of the recall petition is to write I want to end I'm read tell you my four points actually then my four points are Thank you for your time. My time is your time. You need to keep thanking me. So appreciative Murphy as chairs of the committee and doing things as chair of the committee. with no individual allegations without a single individual obligation to reach or be outside the content of the second the language on malice is they don't do any open factory the language on malice expression number three as I said you're reading recall statute out of existence because no one will ever no one's ever recall petition again because every every petition and every Florida resident going forward is going to be subject to hiring a lawyer every every every plumber home maker everybody who who works hard and works hard for their families. Everybody who's out there fixing cars and and making and working hard for their families, everybody who's going to sign the recall petition saying, you know what, I agree with this. I'm I'm going to become part of a committee. I want to do I want to recall them. They're now going to be subject to Santa. That can't happen. And finally, I want to quote the, you know, we mentioned I fortunately I was one of America's lawyers at the initial stages before he I moved on to but I will tell you that having litigated three other cases that were up there, myself and my colleague were would like to brief America decision because we had other cases that brought at the same time. All told, would your view on this America said was America said was that some of the cases the case will be cited your if you're petition for a uh if you if you file a slap if you petition for a slap if you file a motion to dismiss on the grounds of a of a slapstick.
They said that your honor denies the motion to dismiss, right? That means that you can immediately.
>> Yeah. you when you file when you file a slap statute when you file a motion to dismiss on slap >> he's so lost >> they held that if if your honor denies it you're entitled to file because that's it and held that not every not every every held that you don't get rid of s but did hold on the supreme America amend the Florida procedure. So in the barrier case and myself Florida it is so important the slap statute is so important and it's so important to protect citizens from being seen for exercising their rights. So the Florida Supreme Court held the lang the language of Florida stats action that this is so important judge they actually in America amended the laws of procedure to state that if your honor or some other judge denies a motion to dismiss based on the slap statute that you're entitled to an immediate interlock appeal. So in America, the Florida Supreme Court amended the Florida rules of appeal procedures in front of your honor or one of your fellow judges. If our motion to dismiss like this one on the ground for the SN, if it's denied, then we have the right to an immediate interlocatory appeal.
That's how important they gave you.
I want to end by reading the quote.
>> A person entity in the state may not file reading from subsection three. Correct.
>> It's 768.295.
A personal government entity in the state cannot file any lawsuit cause of action claim claim attorney claim against another person or entity without merit and primarily because this person entity has exercised the constitutional right of free speech in connection with a publication and I would note that the Florida statute defines free speech as any written or communication under lawyers the first thing I cited theell case and which is the first case that I bring in the Florida appellet court cited the legislative history of the anti-nap statute 2000 and they legislative history said in terms of most of the legislates strategic lawsuits against public participation slams are typically dismissed as unconstitutional but not often before the defendants at the great expense harassment and corruption of their duties. These lawsuits, these lawsuits are an abuse of the judicial process and abuse to censor, intimidate or punish citizens.
And finally, the court said, "It is essential in our democracy that the constitutional rights of citizens disobey and the process of governing beautiful system and comprehensively protected terms.
Two citizens of the United States, the state of Florida cannot circulate collectively of the citizens or be petition first a statute that gives them that that right.
It even gives the elected officials right. If they cannot do that, then we are reading the recall statute and the slap statute out of existence. And I will end and make a bold statement.
You absolutely cannot sue and I've never heard of any citizens and I could be good with but I've never I'm not familiar with any case where Florida is held you can see someone they have a right statute to do it and Woodson and King.
They have targeted Beach.
>> Oh, come on.
>> And through that, every single citizen in their city to exercise their First They're targeting all of them by this lawsuit. It's scary. I would ask you to end this nightmare of Florida in their city. I would ask you to dismiss I would have made two requests.
I would ask your honor to dismiss the defamation lawsuit filed against Beach against Beach and Murphy.
I would ask your court to order King Woods to pay all Beach and Murphy's legal fees. These are specifically directed.
If your honor if your honor disagrees with me, I would respectfully request that this case be so we can pursue the jury appeal which was specifically the direction.
1 hour and 10 minutes of gobbledegook.
Now, the judge might dismiss this today, but it's not going to be because of him because the B bar is very high.
Hopefully, he'll speak up by Mr. But I do want to there are a couple of just general comments.
Um the first is is actually the last one that was made essentially there's never been a lawsuit brought.
>> Are there any reported decisions in regards to a similar circumstance or situation? not as recall statute but the initial version of that statement that people exercise their right has never been action that's not true itself itself was based on a schoolus the second part of that is the subst statute itself requires in order for the statute to apply it has to be made it has to be a statement made to a governmental entity and that's section 768.2952A 2952A defines that free speech interexual public issues means written oral communication. 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 connection or in connection with a play, movie, television program, radio broadcast, audiovisisual work, book, magazine article, musical work, news report or other similar work, right? We don't mean the after the focus before the board actually applies to governmental statements or governance to the state.
So to answer your question directly, no, there's no case that talks about a recall statute that that part is true.
But the idea that this that there's a that this isn't it's actually part of the definition is in order for the statute to apply one thing, one part of it is it has to address a government. So the idea this is I guess kind of picture here is the concept being made here >> in context of what public hearing >> any addressing. So yes public hearing was never but it would be anything. So it would be any written or oral statement that is protected under local law protected and is made before a governmental entity in connection with an issue under consideration or review by government.
So there there's an argument to be made that the slap statute doesn't recall stat because it doesn't meet that definition that this is I don't disagree that this is a recall is an exercise but that leads us to the big picture is the concept that's being argued to court is that if you exercise your first amendment right petition your and the case law is absolutely legion.
That's not true. We wouldn't have New York Times versus Sullivan. If that were true, what we have is, and I think the court sort of touched on it, is yes, public officials have thick skin. No question about it. But they don't give up their right to sue people for defamation. They just have a higher point. So they have to prove actual knowledge of the truth or disre and convincing evidence >> also true. So they have so so >> it's a high burden for your clients to be this not >> supposed to be which which is why the Supreme Court of course you know whatever it's been now since years now has fashioned this this but by definition what the flip side of that is still right you just have a much higher exercise otherwise they to say if you make like if you make a statement in that witness it isn't I'm going to get to in a second that issue >> that's a different issue but I understand >> it's not immunity it's a higher burden absolutely true and we have to prove all that that's our burden but it but the cause of action exists and that's what we're here action so let me just >> the legislature didn't negate that by providing for an opportunity to give a rebuttal statement in a subsequent petition that would need to be resigned.
>> That's effectively what he was kind of arguing in court.
>> It is what he's arguing doesn't get resigned. The 15 the 10% original 15% those aren't the same. They can be, but they're not necessarily.
They don't go back to the 10 and sign the first person say >> any 15% of the registered voters.
>> Correct.
>> But they they have to have that percentage signing the petition with the original language and then the revolut to take away a bunch of common law rights. It's not just defamation. It could be whatever it might be interference intentional contribut but but all the rights you you're asking to explicitly read into a statute that is dead silent something as extreme as saying and by the way by doing this we are also negating all other causes of action is not in the legislative historyirect and certainly not the statute. So, we don't read into this. You know, it's like um the legislative exclusion. You probably had cases like this. Does a statute occupy the field? So, we don't have express exclusion.
I'm sorry. Think about you have to have express exclusion or it's not excluded by statute or the statute has to so occupy the field that it is explicitly expressed. very very rare to happen.
That's a we're not anywhere near that statement. It doesn't even talk about what he's suggesting. So, so I think that would be a slippery slope. Um so, so let me start at the bottom which is the kind way the way we look at it is if you have a basic garden variety and it has >> it's his whistle. It's time for him to go out. He starts early in the day.
>> And then on top of that, if you have independent, you get a little bit higher wall. If you have a public official, you have a little bit context of a statement that's made of a government, you have the subst. I'm going to address all three as we talk about. Let's start with what the elements are because the last three things I said have nothing to do with the elements. Those are privileges offenses to the underlying. So the underlying claim is was there is a false statement made with reckless disregard of actual knowledge or reckless disregard of the truth. Um and we say we say those magic words and I would agree with Mr. easy that that we the current state of the law is that merely reciting verbatim is not a >> you can't just use the buzzwords but did you do more than that he says you didn't even use all the buzzwords >> we use all them to you um so starting >> other than the English professor would be mad but other than you say they maliciously >> tacious >> well you said tentacious but You said uh where is it? In paragraph 13, Mr. Beach maliciously published. Did you use the word malice anywhere else in the context of the alleged defamation being caused or um yes and we actually give the facts that constitute the actual standard in paragraphs 9, 10, 11. So what we do is not paragraph 9, we say the magic words.
say, quote, "Several of the allegations within this category false were made with intent and knowledge of their falsity and or were in utter disregard for the truth thereof." Yes, those are magic words, but those are also >> utter disregard the same as reckless disregard because the case law uses reckless.
>> Good point. No. Okay. But we don't I don't want to wait. There's more.
Paragraph 10 though, we do go on and we say that Mr. Beach published and we say the same about Mr. Murphy published the king petition to members of the community with the intent of tarnishing Mr. King's reputation and having removed from office based on false allegations and lies. That is a specific case certain allegations not just magic words. We go on to say Mr. speech as a personal vendetta against Mr. King and thus spread this reason behind it thus spread those breaks and peninsula lies with the sole purpose of harming Mr. King's good name reputation position the counselor those are all specific facts which if true our case if false we lose our so this is what this case is going to be about is did Mr. do those things with the intent of reputation. They might prove otherwise.
They might prove no and I lose. But right if they prove some other purpose they win.
>> You could overcome the disre sole purpose was to harm the reputation and name. So if they prove some other purpose do they win?
>> Arguably yes.
>> Okay.
>> Because that's part of the reckless disregard standard. Um, and yes, it is possible. And that's true.
Forget about SLAP cases. That's true.
>> What if their primary motive was just to get them out of office because they didn't like them as opposed to harming their reputation?
Well, that wouldate the law for malice. That has to be the primary purpose, doesn't it?
>> Right.
>> Now, the primary purpose would be to injure the >> pliff office.
So I understand your question and and if we change the analogy a little bit to say if it was something other than that I probably agree with you but I didn't as to your analogy and we you know we think that is the case and we're going to prove that in this case but it goes on >> but clear and convincing evidence. What evidence do you have?
>> I know you don't have some yet because you've not done much discovery. Well, actually, we do have quite a bit.
>> But when you file suit, you're supposed to have bird in the hand and ready to go in theory. So, what evidence do you have that's clear and convincing in that regard?
>> So, I'm not asking you to pre-tri your case, per se.
>> Okay. So, so we were made there were very specific allegations were made in the >> petition and because he's asking me just to throw it out outright. Do you agree that the court has the authority to do that or the ability to do that >> under the current circumstances >> only under the slap statute which answer to the question we know this slap to have affidavit that show that so the burden shifts right so yes there are walls on our But there are merit.
>> I'll talk to him later. Go ahead.
His boss is taking her phone. His phone.
>> Go ahead.
>> So they have to prove their >> I chastised everybody about phones and it just went off. So I had to say something. I apologize. Go ahead, sir.
I'm sorry to interrupt you.
>> It's okay.
>> That's right. Last scare they have.
>> But the burden on their side is is that they have to prove we did it without our claim has no. So that's their burden. The second element that they have to prove is that it was done solely for the purpose of of attacking the free speech. So those are the two the two have to prove. So under the case law talks about the process under statute.
Yes, you can you can consider affidavit that same case where didn't produce any affidavit. So the slap stat >> are you involved in my other slap statute with all the congressional people?
>> No.
>> No. Okay.
>> So had an army of lawyers in that one and I didn't know you were one of them.
>> They were all over the map. It's irrelevant where they're from though.
>> That's right. So, but but the the idea is is that yes, you can consider those affidavit. The second DCA said that and that's fine. So, there are affidavit submitted in the record in my book. Problem is they don't actually do they don't actually go to the elements that are their birth. They don't say our claim is made is without merit. They don't actually even deny the falsity of claims made. What they do, they don't they don't deny the falsity of what we say are the lies. They don't even deny whether they were made with ballots or not. All they say, and they tab, by the way, your notebook, they are at four and five. And what they say is they just reiterate that the claims were made. I'm quoting the claims asserted against me. This is Mr. The claims asserted against me arise entirely from my participation in the recall process authorized under Florida law. Then it goes on to talk about the recall process. Not once does it say the statements I made were true. The statements I made were based on X Y and Z. The statements I made were made not for the purpose of doesn't say that. All it says is that they we're coming our allegations and we have concludes the motion dismiss. So under the slap process, you would deny the motion to dismiss because they haven't carried their proof under this expedited process of pointing out that there is something that claims are without merit for the sole specific reasoned speech which will lead us to the protected speech part in a second.
But it's not protected speech any but but you don't have to get there because they haven't met their initial motion stage and you are absolutely within your right to deny the motion and move on. Um so that is your question by the way.
>> Yes sir. Um so the other um the pleading defects back to the pleadings is we then go on to talk about what the the identified statements were and and this is really what comes up a lot in defamation cases is maybe the statement isn't specific enough that someone and so might have heard somebody say something on Facebook by the time the television game gets back to the first few years it's not a statement it's more that's more of a feeling So we in paragraph 11 actually call out the statements and we say Mr. Beach again this is example one falsely states that Mr. King one engaged in private conversations to coordinate with council member Karen Woodson soliciting the replacement town attorney period that's false how do we know that's false because we've got Mr. King and Miss Woodson. We know they didn't talk to each other. And we also know that there's no evidence that they have to show that they ever talk to each other to coordinate in private conversations to coordinate each other to solicit information.
>> And why is that a form of defamation or or liel or slander if you will? Is that because those types of private conversations would in essence be a violation of the sunshine statute?
statute.
>> You haven't alleged that though. Have you?
>> No.
I could but that is why there number two you're gonna ask the same question because >> well the only reason why I ask is your average person might not necessarily know that two elected officials aren't supposed to have a private conversation about policy and and procedure and things of that sort >> also true goes to whether a get to a summary judgement stage or at least reasonably conceive to statements that yes, but I will prefer to see that in there because it applies to all three. So number two, it's the same thing but a different statute that's violated receive unreported gifts of meals from parties who were seeking land use approvals from town council. Now this was a little bit >> was that supposed to be bribery?
>> Bribery, right? But also a chapter one violation as you know >> everybody has to report gifts of a certain type amount etc. >> Right? And so if we took out the word unreported then it just be the bribery part. But there's actually two one is receive unreported gifts and meals from parties receiving land use approvals from town council. One is receiving gifts bribery.
unreported gifts is a violation of chapter 112 and that's also there's a component that there and then of course we have the third one which is mal or males which ironically is defamation per se because defaming someone or disparaging someone in their job is actually defamation per se. So you have both disease criminal conduct and disparaging someone that their job is actually for. So all three does help.
I would agree as the number one if you could clarify but for where we are today it would be necessary. So that's the baseline that's just a if they were not commissioners we didn't have statute that be the baseline argument or possibly address issues.
Now we move up to the next one which is the mouse. So we did go to your your prior question. We did say the magic words. We did put on those bones for explaining it and what they did. Um what specifically they said. So the motive behind it, what they said and that it was done maliciously.
And then I agree that the statement that Mr. speech has been invited on multiple occasions to present evidence to support these lies. He is not and cannot allegations are based on false. I agree that is an irrelevant statement in of itself but it also goes to that evidence of picture a trial picture a trial and Mr. beach is on the stand and he talks about these statements and that he has this bonafide good faith belief that these statements are true. I'm going to get to get up and ask a whole bunch of questions. Did you ever talk to the town attorney? Did you ever ask him? Did these two folks come in together and talk to you? No.
Did you ever talk to anybody who allegedly bribed the giver of the money?
You ever see them get money? Talk to the person who gave the money, whatever it is.
And and unlike a lot of things is here's going to be a whole bunch of emails where you're asked to as you know silence in the face of the point shouldn't speak can be circumstantial evidence. It's not direct evidence. I acknowledge >> you saying silence is acquiescence.
Silence exactly the essence. Yes. And if someone says you're lying because you don't have it proved a normal person respond, oh yes I do. I talked to Mary or Bob or Jane and they saw you take the bag from whatever none of that happened. So So we think it's all there sufficient to meet that. So now let's talk about the slap statute.
The slum statute is not and this is the core difference between our positions >> again 768.295 go ahead >> yes 768.295 Um the the slap statute um is not the way it's described here would operate as a it would operate as legislative meeting. A congressman get up on the floors of Congress and say pretty much whatever they want unless it's treasonous. Um so even that has but you know or sedition but even that has limit but mostly for the most part you can say whatever you want legislative testimonial there's qualified immunity that attaches to some law enforcement seven I'm sorry 406 southern third um 945 actually page four and that's a capital 11. Um the argument made there by Pal in that case.
um how in that case was making that same orient is making here which is um that the statute provided a community and what justice said in response to that and I quote kind of third paragraph down to the left is though we do not though we do not share pal's narrow view of the statute we agree that the statute does not provide traditional meaning suit coming to this conclusion to focus on the statutes text.
Um, and so and then the next paragraph starts with quote Florida's anti-SLAP statute does not use the word or with complicity and it cites back to 768.25.
Quote, this stands in contrast with statutes that expressly confer some form of anemity and thus the one that is law enforcement community arbitrator community and this is not one of them. So what does that lead to?
Um it leads to the next paragraph and I'm going to just bear with me a lot here in the upper right corner.
>> Yes sir.
>> Did you give them a copy of this too by the way?
>> I did.
>> You gave me a highlighted version on it.
So >> okay.
Do you like the highlighted? Well, I I prefer it because when I'm looking through in preparation for hearing, it helps call my attention to what you think is important.
>> But the reason why I ask is you're obligated to give him identical copy, same highlighting, same everything. And unfortunately, sometimes I get some attorneys that give the judge a copy that it's highlighted. Don't give the opposing counsel an equal copy. So >> that's why I asked copies at all.
>> That's true, too.
What it says is it says quote nor does the statute slap statute contain structural or textual clues that might support an absolute right to be free from litigation then to the to the highlighted part the anti-slap statute in fact suggests that a successful anti-slap claimant will endure some level of litigation.
To prevail on an anti-slap claim, the defendant must show that the plaintiff's lawsuit is without merit and brought primarily because the defendant exercise protected free speech or to a judicial determination that a speech targeted lawsuit is without merit may not be possible at the outset of a case and may require the development of a record. The anti-stop statute also specifically notes agreed parties will have to avail themselves of a standard litigation sorry themselves of standard litigation features such as case disposite motion if they are to benefit from the statute and then they go on so um the next paragraph though goes to Mr. quote absent the benefit of any claim statuto can only point to hardships typically associated with continued litigation but we have repeatedly not that this sort of burden does not constitute irrepable harm in ordinary circumstances.
>> Well the remedy would be ultimately if you prevail you might be able to recover your attorney's fees in the face of a bad claim. Right.
>> Right.
>> Monetary judgment is is reparable harm I suppose.
That's the hammer that so so there's there's take a step back and sort of intellectual big picture is what you have you have these competing and I'll talk about the tiger case which is the basket case basker name and she she published I guess a past where she made all kinds of allegations about the family of her Mr. a personal assistant whose remains are unknown to this day. If you watch the special >> is that the missing husband of hers.
>> Missing assistant.
>> Oh, assistant. I thought it was the husband.
>> Yeah. You know, I was the husband in jail.
>> No, Tiger King's in prison.
>> I'm gonna defer.
>> You can look it up later. Yeah.
>> Right. So, so but yeah, someone's missing and I think they got eaten by the fact. So, she goes on her podcast, makes a whole bunch of allegedly statements, gets sued, and then she raises 768.29 and says anti I am a public person. I'm in the public eye. I you're subject to this higher standard and I am simply making statements that are constitutionally protected free speech the second DCA um actually the chalk court so this was up in Tampa and the second DCA reversed because what what they said is quote actual defamation however is not constitutionally protected speech end quote And they they cited the five elements which I went over the publication of a false statement or reckless disregard as a false which causes actual damage and it's those are the five elements and they looked to the statute 768.295 and talked about the the definition that I read earlier which is it has to be speech that is protected speech. So if your your slap statute protects protected speech and the second DCA just rejected that it said actual defamation is not protected speech went on to quote the I'll just give you 377 and that is 176 to quote a fifth DCA case which is called Foxy at Metro quote freedom of speech does not extend to vicinity and fraud incitement truth and speech um and so so we know that it's not actual actual speech but um the the issue before the court is how to balance these compet interest and so on you have the right to your government the first amendment but as I discussed earlier we already know there's no per se that's just not true we have lots and lots of buteneath all that is a rightation speech and so you look at this statute and you say okay is this constitutionally protected speech or not and the answer is the answer is in all the cases that they and the answer is no. So at the stage that we're at, this ties back to Baron, is at the stage we're at. If there is actual defamation as pled in this lawsuit, the anti-slap statute cannot be adjudicated at this point because there are no affidavit that say that it's without merit or only to attack speech.
If there were, we have counteridav the yes and they go into some detail and they're different. Um, Miss Woods is actually a bit longer. Um, and talks names talks about whether or not she talked with for instance, Vice Mayor Dave Dave Emerald, Jim Emerald about the Lee County Pier. She goes on to other issues outside the scope, but talks about the issues inside the scope and affirmatively addresses it with detail.
Mr. King does the same thing but a bit more directly in the sense of proving the negative. Think about someone accuses you of having a private conversation other than saying that never happened. It's a little hard to have affirmative facts. You know, I suppose you get a travel ledger out even at the time of the alleged that sort of thing. But but at the outset, it's really just disproving the negative. Now I want to talk about something about go back to this recall petition as a as a washing the slate and I want to use your heroin example is if and I'm going to use both ways whether it's a valid petition or an invalid petition. So you use the example it has 300 words it valid. I'm going to use both is if I say >> well I don't know if it's thrown out or not. It's that's a different court on a different day and you all had a different lawsuit over that. That's what he was saying. If it's over 200, it's it's invalid.
>> But his argument essentially was if the petition was invalid, that somehow negated the defamatory statements you can contain therein.
>> Yes. And I and I would agree with the court that I don't think it makes a difference whether I think if you make a statement in the context of petitioning your government and it is defamatory.
So his actual now whether you did carry that burden or whether there was they have affidavit expedited process process if they had affidavit that said here's a picture of John King snorting her shooting heroin then slap statute apply we'd be done because my case is not what's happened here he's just saying statute out there lawsuit that's What barer says what barer says is you have to go through some process in order to get to the two things that they have to prove which is holding without merit and done for that specific purpose of attacking the speech. But I'll use the heroin example.
If if someone is presented with a petition that says John King shoots heroin at the committee meeting or the commission meeting and and he's given the petition and he says I've never shot heroin at a commission meeting and 15% of the people say well I don't know what's true or what's not true. I'm going to put this on the ballot. Remember that doesn't go on. The only thing goes on the ballot is should John King be recalled or not. So, so the whole rebuttal argument sort of dies because it doesn't really go to the voters, but but leave that side is if I say that >> so that's only seen by the people that sign within that 15%.
So, but if I if I say that that doesn't mean that the defandatory statement was made pure and simple. And so whether it's valid or invalid petition makes no difference at all whether whether the voters approved it or didn't have anything to do with whether there was a statement made. What it does do is it raises a vehicle by which they can prove through affidavit at this stage later through testimony that our petition was made without merit and for the sole purpose of protected speech. We'd argue protected speech but he did say I hear you but I don't think it's mandatory and so it is protected speech only right so so that that's that's what they have to prove and it's expedited and that's what protects them from undue litigation. That's as simple as it is.
It's really it's really that simple.
There's baseline defamation lawsuit and the question is what's the process for process in that lawsuit and right now we know what that process is showing for cause they have a diet question >> yes sir anything else response >> a few points judge I'm not going to use them very much I think I made all my let me just simply refut some of the things Why don't you go to the podium if you wouldn't mind? That way they can see you and hear you a little bit better in the gallery.
>> Mic would be great. Number one, something was not perfect.
The petition and recall by the people who voted and Mr. King the people who voted to recall King overwhelming majority was was to those people who majority of the voters voted to recall kings. So the people who voted people with their own people.
I think that in the political context something unusual various forms of obviously the sovereign immunity obviously there's litigation immunity can't be sued you may get sanctioned by the Florida held contempt by a judge like the government but you can't be sued with information in Florida they get tossed out lose your You won't be you can't be seen in that litigation. Finally the individual and political context legislative partis this uh we should find a box director because the box director is a convicted bank reality is those public officials have absolutely question something your honor asked what I said in my remarks was that and I'm glad I went through the I said in my remarks your honor was that I'm unaware of case history.
I'm not aware of any case history and I stated that I stated that the court did not discuss this case set the state of Florida. This would be the first case in history where people sued for defamation because they circulated recall petition and the public officials who recall said was false and my colleague read the binding or read the cases well it's a little more than that it's not just false they're saying it's defamatory right >> okay the first case app neither myself nor my colleague spending a lot of time getting ready this I found any case in Florida history where people circulating people disappear.
So there's no disagreement that were not dismissed that politicians who are recall subject to recall petitions people of the city could sue people nothing more than circulated recall petitions that they claim the 15% people to get into your language.
They're not suing them, as my colleague has just stated down, they're not suing them because they held a press conference. If you look at the four corners of they are not contending, judge, they are not contending with judge. They are not contending that Beach and Murphy aside from circulating debition held a press conference that went on TV or on Fox News or CNN and made made a bunch of accusations. They're not saying that they went on CNN or on the Sunday talk shows the press or whatever and said, "You know what? These people whatever they're going to say the sole and exclusive allegation against them is they're claiming that the language petition that they certainly need defamatory published to third parties.
Whether or not it's it's on television nightly news and it's broadcast to 50 million people across the country or it's a neighborhood scuttlebutt and someone saying the next door neighbor's running a house of prostitution in a drug den and only two other people happen to overhear it.
That's defamation as long as it's it's false, it's defamatory, and it's published to third parties and and there's some damage. Well, and it might affect the level of damages if two people hear it versus 50 million. But it's still defamation, isn't it?
Regardless of whether or not it's a a public spectacle or not.
>> If you play the standard actual analysis as your bestation, another case. And if if you if you find is not to punish people for engaging political speech between major distinction between a false state even a false state is not actionable especially unless you express an actual My colleague was talked about argument that the snap statute says quote because such person expressed their constitutional right to free speech and it also pro before any government respectively suggest that submitting petitions to the government entity.
Again, I think for a government entity means you show up to the school board and they have open public comment and someone comes in and says something before the school board.
I I think he's kind of conceded the actual presentation or these petitions to the government would probably be protected.
But before you get to that point of presentation, you've presented it to 10% of the populace, if not more. Because some people, I'm sure, said, "I'm not signing that." But at least 10% of the people saw that statement and then 15 plus% potentially saw that statement again, albeit with the rebuttal underneath. That's that's not before the government is it?
>> How so?
>> Because the whole purpose of the petition these petitions are presented to the government. So >> that's different.
The petitions are all submitted to the government. So I would say that I don't think it's a big leap to say that circulating recall petitioners to go and submit it to the clerk's office getting letters to go to the school board meeting. If I walk around and get petition saying I think this principal should be fired up and they circus disagree and state that that is I would note that the you know here paragraphs for my purposes. Paragraph 10 is that he wanted to punish King's reputation and and have him removed from office and paragraph 22 makes it clear that Mr. Murphy wanted to have Woodson office and I think it was particularly the whole recall petition just never one thing I disputing is that the whole the whole purpose of the recall petition process was to remove people >> you all agree on something at least >> I thought the one thing I would say judge is that Um, I I think that makes this case easy for me in my opinion. Here's why this makes this case easy to is because what I'm dealing with here is people accused of making false statements maybe a petition they were circulating under the statute to recall recall public officials. So say is I don't know how you can ever you know that's like saying I don't see how you can ever get past what they did was a political act they did >> well you can just tell the truth that's how you get around process. There's a reason that there's a reason. So, I don't see how you could ever say Beach and Murphy had actual express malice and their their main intent was slander when by the very definition of what they're being accused of doing. The very definition of why they're being sued is for engaging in a lawful process of circulating recall petitions. And the whole purpose of well it's it's it's definitely lawful and it has a valid purpose but I think their position is you abuse the process or the purpose by making from their position I don't know if it's true or not but from their position categorically false statements were used in promulgating that position statements that impuged criminal conduct on their part which is defamation per se is it not if it were just joking public average person and not a public figure.
their affidav their affidav that their only purpose was was political was engaged was to remove them from office but they didn't have any and there's nothing there's nothing but don't you have to look at the circumstances because from what I gather from the affidavit there's clearly some again I don't know what it is some personal animus between your clients and these folks over here >> for whatever reason.
>> We're going to start for defamation. Every Republican and Democrat and independent criticizing each other and >> Oh, brother, here we go again.
I'm quite sure people who serve on local political bodies or national political bodies in Congress and in Fort Myers Peach in Sarasota. I'm sure there's a whole lot of animist among the different political factions. Every city commission I'm aware of has two people on one side, three people on the other side. I'm sure there's a ton there's a ton of animist, but they don't go around so many children. Uh but I would not two final things and that is that uh number one as you point out earlier this is kind of a bare bones lawsuit they've got to overcome a whole bunch of burdens to get past the motion to dismiss their whole if you look at the lawsuit it's paragraphs one through five paragraphs one through two judge Paragraphs 1 through five states the people's names and assumes more than 50,000 only othering paragraphs say we count paragraph name the paragraph six brought the point It's an interest. You just brought the point up. So, let me ask this. You brought up the fact that this is an action in excess of 50,000.
>> That would be each claimant making a claim in excess of 50,000. Correct.
>> Should I send Mr. King's lawsuit to county court small claims because his affidavit says his damages are 2500?
>> Good.
>> Or is he asking for additional damages to his reputation above and beyond the 25? levels of theory and that's all we have right now based on that might bounce back to you if during discovery we get more damage but yes your question the answer to your question is yes you could based on the status of of the affidavit now but of course in a normal motion dismiss you wouldn't be looking at affidavit affirm the damage by the Swiss case damages. Swiss case is damaged by her own conitule 2500.
So finally there you don't isn't malice a question factor for the jury ultimately or are you aware of case law that allows for the court to make the termination of malice or the sufficiency thereof on a record on summary judgement under 1.510. syndrome.
I I think that my experience with cases at this stage is the sufficiency of the pleadings is clearly a court question at this juncture. But ultimately, as the case develops, if we get beyond this point, won't that ultimately be a question of fact for the jury whether or not they can deduce malice either from direct or from circumstantial evidence?
>> Given the circumstances of whatever their situation was, >> the answer is obviously I don't think a legal question especially figures what really plays and statute very important gatekeep >> well that's the whole purpose of the slab statue is >> yeah we don't want judge I think I quoted the quote is My colleagues are asking your honor to be the first judge to rule that citizens who circulate a recall petition that was certified and went to the where the 15% read the rebuttal. So two final points one my colleagues was once Mr. or asking your honor to be the first corporate rule that where people are accused of only and exclusively acting in the capacity of serving as part of a recall committee of citizens.
And where did people who were sought to be recalled submitted a rebuttal that was read by all 15% where they only they are only alleged to be participating in a report and everybody who signed a petition joining join the committee and everybody who signed the petition as part of the 15% read their rebuttal and made a decision for thousands of people to go forward in other circumstances are ask for judges that that case does not get dismissed and these citizens who accused of participating in the court process are going to have to spend money on lawyers.
This is Slaps are typically dismissed as unconstitutional and not before the defendants or at great expense harassment and interruption of interviews. These lawsuits are an abuse of judicial process used to censor punish citizens on behalf of Mr. Committee. They had an absolute right to deliver statute.
I ask your honor to end today the abuse the abuse the harassment and intimidation they've been going to for months because they exercise their freedom rights if for some reason if if for some reason your honor is not to dismiss the case today the case does not do that I would ask that the case be stayed So the appeal is I want to thank you for your time very Thank you sir.
His position is is you're creating a slippery slope and you're stifling free speech. Tell me why he's wrong.
You're not looking to sue everybody that signed that petition, are you?
>> Oh, yeah. What I was gonna say is no, we're not. And I was thinking that why he was saying that is this idea that everybody who signs a petition and said a number of times we're going to strike fear people who are outside public sign a petition, which I've done.
We're not suing any of those people.
Number one suing people who we're suing are the people who wrote the petition with full knowledge in our people or at least reckless disregard of the truth or falsity of those statements. That's who we're suing Mr. Murphy Mr. They wrote the petitions. Their name is all written. They're the ones that wrote it.
By the way, we didn't just sue them as chair.
I a couple times. It's a defined term.
So on page one, it's Mr. Mr. Murphy individually and as chair of the committee recall Mr. Murphy respectively. So, so they are defined as >> they already I think the position doesn't allow for someone to be designated chair until it's accepted by the >> system is it not?
>> Actually, it is.
>> It is. Okay.
>> So, the petition >> I'm not familiar with that process.
>> Yeah. So, so the process is 200 words, >> but are you automatically designated chair upon presenting that or there has to be a chair and that's the committee and he's not wrong that every person under the statute for whatever reason does say every person that becomes a member of the committee does say but it never creates a separate committee and it doesn't matter anywhere because let's go let's cut to Chase if you're talking about malice and reckless disregard the person signing the petition is being told lie that Mr. Mr. So are relying on the person telling them this that Mr. King does heroin right so I'm in public and I say here's a petition that says Mr. King does heroin and oh that's terrible sign that here's a petition says Mr. He does heroin that he says he doesn't do heroin. I don't believe that's what heroin addict said sign it. That person's not getting sued because they didn't make the statements.
They are not the ones publishing the statement. They're signing the statement. But if I suppose if they took that statement and then put it up on their Facebook page, they would get sued. But they're not the ones that made and published the statement. That's just reach of Mr. Murphy. So I would not I would not disagree that someone who goes that enters into the public and does a 100.36 recall petition and makes actually a actual defamation in that recall petition. Yes, they are subject to get. So my advice to people doing recall petitions is make sure you don't have actual defamation. What's the protection? The free speech protection.
>> True.
That's what it's there for. It is there for that purpose is to ameilary exactly what he says.
That's the statute and it gives them a lever which is if they submit affidavit or other evidence that the petition brought by Mr. King and Miss Woodson is without merit and done for the explicit purpose of attacking constitutionally protected free speech. It doesn't say constitutional. It says protected speech.
If they if they can meet those two standards, then the burden shifts to us to disprove them.
So So we're not statist.
So yes, there's no question that this is there's a tension here as Mr. Key points out, but it's not this yet.
I do a recall petition and therefore I'm going to be sued and it's chilled to free speech. And by the way, people get sued in the political arena for free for defamation all the time. You mentioned Fox News. Ask Dominion how much money they got from Fox News. That was that was presidential election issue that was doesn't get much more political than that. The elected officials sue people all the time. The president suing people for defation right now. Sometimes he wins, sometimes he loses. But this idea that speech is there's a guard rail around it. It goes back to the question.
It's not >> it's clearly not for the case law that we all reviewed today.
>> Okay. I'm going to reserve ruling. I'm going to go over your notebook in a little more detail since I just got your one today. And then I will have my assistant let you know who's to prepare proposed order. And then even then that's still subject to revision and changing of the mind so to speak. So I may ask one or both of you to do a proposal for consideration. That doesn't necessarily mean that's the way it's going to go. So don't start sweating it out just yet.
>> Um if and when we get to that, whichever one it is, is it word or >> word? Yes.
>> No decision.
>> All right. Um if I deny it, what's your position relative to a staff?
It makes sense.
>> Okay.
>> So, if I if I asked you to prepare one, then you wouldn't include that. Okay.
>> All right. Um, you all went to mediation recently and I understand there was an impass, correct?
>> Okay. And then you went to Mr. Mancini who's a very good arbitrator and I understand one side or the other did the rejection under 1.820H and I did see the rejection was done properly um thanks to Sanchez and Hernandez. If you haven't seen the Sanchez case that came out a couple weeks ago make sure you look at that because that reiterated Hernandez still messing up rejection notices which you can see.
So, um, if you haven't read it and read read the rule, go back and read it because a lot of people sort of messing that up.
But, what I was getting at is the end of the day, there's obviously risks and repercussions of the exposure of whatever the decision is defeated and there's flat fee exposure, appellet fee exposure, there's taxable cost exposure. So all I'm telling both sides is just be careful what you ask for because this case at the end of the day, one side of the other might end up owing the other side tens of thousands of dollars in attorney's fees and sometimes and I have cases where both sides are paying each other's attorney's fees and sometimes one side's much higher than the other. So I would encourage you notwithstanding the impass to you one final informal discussion.
Any settlement discussions you had or may have completely confidential and no one's ever told about them. So before I I make a decision and pull the trigger and I just ask that you all give it one more go if you will. I'm not going to resend you to mediation but see if you all can talk something out. Um and just let me know. It's today, Tuesday.
Let me know Friday afternoon. Yes, we've reached an agreement or no, make a decision and I'll let you know what it is if you ask one.
>> Okay.
>> All right. Thank you. Thank you.
I did.
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