Defamation,
Intentional Infliction of
Emotional Distress,
Privacy, and False
Light Torts
Marc J. Randazza, Esq.
Weston, Garrou, Walters & Mooney
Defamation - Generally

Defamation is expression that:
– Tends to damage a person’s standing in the
community.
– Through words that attack an individual’s
character or abilities.
– Damage to reputation.
Defamation – Generally (cont’d)
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Libel = printed defamation
Slander = spoken defamation
Defamation – Historically
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The Zenger trial - 1734
– John Peter Zenger was the publisher of The New York
Weekly Journal.
– Zenger published articles critical of the governor of
the colony.
– Governor sued Zenger for “seditious libel.”
– Claimed the paper would “inflam[e] their minds with
contempt of His Majesty's government, and greatly
disturbing the peace thereof"
Defamation – Historically
Seditious libel was a crime of speaking out
against the government.
 It was a strict liability crime & jury was
charged with the simple task of
determining whether Zenger published the
complained of statements.
 Zenger argued that the statements could
not be libelous if they were true.

Defamation – Historically
English law at the time did not recognize
truth as a defense.
 Libel law was primarily used to protect the
government from criticism.
 The jury refused to enter a guilty verdict.
 Established the core of U.S. defamation
law:
 Truth is an absolute defense.
 Laid the cornerstone for the freedom of
the press.

Defamation Now
Libel = printed defamation
 Slander = spoken defamation
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Modern Defamation Elements
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1. Defamation – there was defamatory
language.
2. Identification – the defamation was about
the plaintiff.
3. Publication – the defamation was
disseminated.
4. Fault – the defamation was published as a
result of recklessness or negligence.
5. Falsity – that the statement was false.
6. Damages (unless it is per se defamatory).
Defamation

The Restatement of Torts says that defamation
consists of statements that tend to expose a
person to:
– Hatred
– Ridicule
– Contempt
Judge determines whether message is capable
of a defamatory meaning.
 Jury decides whether its everyday meaning
makes it defamatory.
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Defamation
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Key defamation topics
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Suggesting P is involved in crime
Serious moral failings
Incompetence in business or professional life
Unpatriotic
Mentally incompetent
Alcoholic
Infected with a “loathsome disease”
Businesses, products, and individuals can be
defamed (theoretically)
Defamation

Single instance rule:
– Language charging a person with ignorance
or error on a single occasion is not
defamatory without proof of loss.
Saying a referee made a bad call is one
thing.
 Saying a referee was an idiot.
 Saying that a referee is on the take…

Defamation
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Other topics of defamation suits
– Implying that someone is a prostitute (unless
they are)
– Inaccurate reports of someone having an STD
– Not “regular” illnesses.
– Calling someone a traitor or a spy.
Defamation - Identification
Defamatory Characters
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Real people who provide basis for unflattering
characters in works of fiction.
May sue for libel
If author fails to disguise them.
E.g. Real person and fictional person have
the same name.
Defamation - Identification
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Geisler v. Petrocelli, 6 Media L. Rep. 1023 (1980).
Book called Match Set
Main character was a transsexual who helped fix
tennis tournaments and had tons of weird sex.
Name of Character, Melanie Geisler.
Ooops – there was a real Melanie Geisler, who kind
of fit the description of the fictional MG.
“her body… firm and compact, though heavier than
she would like.”
Geisler had more proof to offer though – that
someone made the connection, or would.
Defamation - Identification
Smith v. Stewart case
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Red Hat Club
Character “based on” Vicki Stewart
She is a drunk and sexually “liberated”
GA Court of Appeals held that she was
sufficiently identified
Defamation - Identification
Misidentification

See Bell v. Associated Press,
584 F.Supp. 128 (D.D.C. 1984) (756)
Impostor says he is Theo Bell, a member
of the Pittsburgh Steelers.
Newspaper republishes the police report.
Defamatory?
Defamation
False Statement of FACT
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The statement must be one of fact.
Not opinion
Who decides that?
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The Court Decides.
No bright line test
Court reviews from perspective of an ordinary
reader.
False Statement of FACT
Fortson v. Colangelo & NY Post,
434 F.Supp.2d 1369(S.D. Fla.
2006)
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Danny Fortson (Dallas Mavs) pushed
Zarko Cabarkapa (Phx. Suns) while
defending.
Zarko falls and breaks his wrist.
Jerry Colangelo is owner of Phx suns.
NY Post and Columnist Vescey gave
Fortson a hard time in public.
False Statement of FACT
Fortson v. Colangelo & NY Post,
434 F.Supp.2d 1369(S.D. Fla.
2006)
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Colangelo stated, of Fortson:
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“He’s a thug. He always has been and is.”
He shoud be put down for every day
Cabarkapa is out”
Vecsey wrote:
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Fortson should be suspended.
He Mugged Cabarkapa
Fortson is a “meaningless mass”
False Statement of FACT
Fortson v. Colangelo & NY Post,
434 F.Supp.2d 1369(S.D. Fla.
2006)
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Rhetorical Hyperbole
Pure opinion
Neither is actionable
Loose, figurative, or hyperbolic language
cannot be reasonably interpreted as
stating actual facts about their target.
Injury
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The defamatory statement must actually
injure the plaintiff’s reputation.
What effect will statement have on an
average and ordinary reader?
Defamation – Group Libel
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The smaller the group, the more likely
that identification will stick.
All of the NFL Players are on Steroids
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All of the Oakland Raiders are on Steroids.
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not sufficiently small to warrant libel.
Possibly.
The entire starting secondary for the
Raiders is on Steroids.
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Yes, sufficiently small for a group libel action.
Defaming Public Figures
New York Times v. Sullivan
376 U.S. 254 (1964)
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VERY IMPORTANT CASE
Even if the content is false and
defamatory,
A public official loses
Unless they can establish:
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Knowing falsity, or
Reckless disregard for the truth
This is the “Actual Malice” standard.
New York Times v. Sullivan
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NYT ran an ad called “heed their rising
voices.”
Ad sought support for the Civil Rights
Movement.
Ad contained several false statements.
Libel suits were frequent tools in the fight
against the civil rights movement.
New York Times v. Sullivan
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Ad falsely claimed:
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Dining hall at Alabama state college was
padlocked by police.
There was an attempt to starve students into
submission.
Police ringed the campus.
MLK was not arrested 7 times (it was only 4).
MLK was not assaulted (conflicting stories)
New York Times v. Sullivan
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Montgomery, Ala. Police commissioner, LB
Sullivan demanded a retraction.
NYT refused.
Sullivan and Alabama Governor sued NYT for
defamation.
Sullivan supervised the police so it defamed him.
Alabama law was still stuck back in the Zenger
days of strict liability.
Sullivan was awarded $500,000 by an Alabama
Jury.
New York Times v. Sullivan
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US Supreme Court reversed 9-0.
Brennan: There is “a profound national
commitment to the principle that debate on
public issues should be uninhibited, robust, and
wide-open, and that it may well include
vehement, caustic, and sometimes unpleasantly
sharp attacks on government and public
officials.”

First Amendment needs “breathing room”
Public Figures
Supreme court built on Sullivan.
 Expanded actual malice test to public figures as
well as public officials.

– Curtis Publishing Co. v. Butts – Athletic director at the
Univ. of Georgia was a public figure.
Curtis Pub. Co. v. Butts,
388 U.S. 130 (U.S. 1967)
News article entitled "The Story of a College
Football Fix"
 Prefaced by a note from the editors stating:

– "Not since the Chicago White Sox threw the 1919
World Series has there been a sports story as
shocking as this one. . . . Before the University of
Georgia played the University of Alabama . . . Wally
Butts . . . gave [to its coach] . . . Georgia's plays,
defensive patterns, all the significant secrets
Georgia's football team possessed."
Curtis Pub. Co. v. Butts,
388 U.S. 130 (U.S. 1967)
Article said that Burnett accidentally overheard a
telephone conversation between Butts and the
head coach of the University of Alabama, Paul
Bryant,
 Approximately one week prior to the game.
 Said "Butts outlined Georgia's offensive plays . .
. and told . . . how Georgia planned to defend . .
. . Butts mentioned both players and plays by
name."
 The readers were told that Burnett made notes
of the conversation, and specific examples of the
divulged secrets were set out.

Curtis Pub. Co. v. Butts,
388 U.S. 130 (U.S. 1967)
"the Georgia players, their moves analyzed and
forecast like those of rats in a maze, took a
frightful physical beating,"
 Article said that the players, and other sideline
observers, were aware that Alabama was privy
to Georgia's secrets.
 It set out the series of events commencing with
Burnett's later presentation of his notes to the
Georgia head coach, Johnny Griffith,
 Butts resigned from the University's athletic
affairs, for health and business reasons.

Curtis Pub. Co. v. Butts,
388 U.S. 130 (U.S. 1967)
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The article's conclusion made clear its expected
impact:
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"The chances are that Wally Butts will never
help any football team again. . . . The
investigation by university and Southeastern
Conference officials is continuing; motion
pictures of other games are being scrutinized;
where it will end no one so far can say. But
careers will be ruined, that is sure."
Curtis Pub. Co. v. Butts,
388 U.S. 130 (U.S. 1967)

In a defamation case, a "public figure" will
need to show:
– Damage due to
– highly unreasonable conduct
– constituting an extreme departure from the
standards of investigation and reporting
ordinarily adhered to by responsible
publishers.
Curtis Pub. Co. v. Butts,
388 U.S. 130 (U.S. 1967)
Who = Butts?
 Clearly

– Steve Spurrier
– Randy Moss
– Alex Rodriguez
– Tiger Woods
Curtis Pub. Co. v. Butts,
388 U.S. 130 (U.S. 1967)
Who = Butts?
 Not so clearly

– Minor players
– Practice Squad Players
– Coaches at smaller schools.
Limited Purpose Public Figures
Someone who injects themselves into a public
controversy to affect its outcome (See Gertz v.
Welch).
 They have to prove actual malice only for
defamation directly connected to their voluntary
acts.
 They remain private persons for libelous
statements about their private lives.
 You can be a “nobody” and still be a public
figure.

Limited Purpose P.F.
Alleged defamation involves a public
controversy.
 Person suing for libel has voluntarily
joined the fray.
 Person suing for libel has tried to affect
the outcome of the controversy.
 You can regain your private status after a
long time lapse.
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Used To Be A Public Figure
Time can transform a public figure into a private
one.
 Case by case basis.
 An athlete may pass into memory, but if he is
involved in newsworthy events and matters of
public interest – the PF status may never go
away in that context.
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Defamation – Florida’s Elements
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In order to sustain a cause of action for defamation in
Florida, the Plaintiff must allege
false statements of fact,
published to a third person,
which caused damage to the Plaintiff.
Without those essential elements, there is no libel.
See, e.g., Valencia v. Citibank, 728 So.2d 300 (Fla.3d
DCA 1999). See also Cape Publications, Inc. v. Reakes,
840 So.2d 277, 279-80 (Fla. 5th DCA 2003); Linafelt v.
Beverly Enterprieses-Florida, Inc., 745 So.2d 386, 388
(Fla. 1st DCA 1999); Smith v. Cuban Am. Nat’l Found.,
731 So.2d 702, 705 (Fla. 3rd DCA 1999)).
Defamation – Florida’s Elements
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ISOLATED FALSEHOODS –
Even if there are isolated false facts,
“substantial truth doctrine”
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isolated and cherry-picked errors or falsehoods will
not sustain a cause of action for defamation. Smith
v. Cuban American Nat’l Foundation, 731 So.2d 702,
706 (Fla. 3d DCA 1999) (“Under the substantial truth
doctrine, a statement does not have to be perfectly
accurate if the ‘gist’ or the ‘sting’ of the statement is
true.”).
Florida Elements
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A statement is not considered to be a
defamatory falsehood unless it ‘would
have a different effect on the mind of the
reader from that which the pleaded truth
would have produced.’
Woodard v. Sunbeam Television Corp., 616 So.2d 501, 503 (Fla. 3d DCA
1993); Early v. Palm Beach Newspapers, Inc., 354 So.2d 351, 352 (Fla.
1977); Bishop v. Wometco Enters., Inc., 235 So.2d 759 (Fla. 3d DCA 1970);
Hill v. Lakeland Ledger Publ’g Corp., 231 So.2d 254, 256 (Fla. 2d DCA
1970); Hammond v. Times Publ’g Co., 162 So.2d 681, 682 (Fla. 2d DCA
1964); McCormick v. Miami Herald Publishing Co., 139 So.2d at 197, 200
(Fla. 2d DCA 1962).
Cautionary Tale –
Murphy v. Boston Herald
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Boston Herald covers story about a rape
case
14 year old victim
Murphy v. Boston Herald
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Herald reports
Judge says “she can’t go through life as a
victim, tell her to get over it”
National media frenzy
Murphy v. Boston Herald
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Judge comes under major attack
Judge sues
Must overcome actual malice standard
Murphy v. Boston Herald
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Murphy claims that he said that she
needed counseling to help her cope with
the crime
Needed help to get over it
Clashing stories
Murphy v. Boston Herald
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Why did Herald lose?
Herald reported based on an interview
with a prosecutor
Prosecutor is a member of the Bar and a
state official
Reporter said he trusted him
But Reporter had thrown away his notes!
Murphy v. Boston Herald
1.
2.
3.
If a story seems to be scathing, ask a few sources
about it. If someone has a contradictory version of
the facts, at least mention it.
Have a policy for when you discard your notes. The
longer the time period, the better. But, when a
reporter is called to a deposition, he should be able to
say “I destroyed my notes on this day, as is consistent
with my policy.”
Don’t let your lawyers talk you into skipping the
intermediate appellate court. If you do that, the only
option you have is to petition the Supreme Court –
good luck with that.
Veranda Partners v. Giles
Infliction of Emotional Distress
Hustler v. Falwell, 485 U.S. 46 (1988).
 The People v. Larry Flynt case.
 Underlying case was a libel case
 But jury held that nobody would think it
was true, therefore not defamatory.
 IED case survived though.

Hustler v. Falwell
Hustler
published this
ad.
 Discusses Jerry
Falwell having
sex with his
mom in an
outhouse.
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Hustler v. Falwell
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Falwell: My first time was in an outhouse outside Lynchburg, Virginia
Interviewer: Wasn’t it a little cramped?
Falwell: Not after I kicked the goat out.
Interviewer: I see. You must tell me all about it.
Falwell: I never really expected to make it with Mom, but then after she
showed all the other guys in town such a good time, I figured, "What the
hell!"
Interviewer: But your Mom? Isn’t that a little odd?
Falwell: I don’t think so. Looks don’t mean that much to me in a woman.
Interviewer: Go on.
Falwell: Well, we were drunk off our God-fearing asses on Campari, ginger
ale and soda—that’s called a Fire and Brimstone—at the time. And Mom
looked better than a Baptist whore with a $100 donation
Interviewer: Campari in the crapper with Mom. how interesting.. .Well
how was it?
Falwell: The Campari was great but mom passed out before I could come.
Interviewer: Did you ever try it again?
Falwell: Sure. Lots of times. But not in the outhouse. Between Mom and
the shit, the flies were too much to bear.
Interviewer: We meant the Campari.
Falwell: Oh, yeah, I always get sloshed before I go to the pulpit. You don’t
think I could lay down all that bullshit sober do you?
Hustler v. Falwell

The sort of robust political debate encouraged by the
First Amendment is bound to produce speech that is
critical of those who hold public office or those public
figures who are "intimately involved in the resolution of
important public questions or, by reason of their fame,
shape events in areas of concern to society at large. …
one of the prerogatives of American citizenship is the
right to criticize public men and measures. Such
criticism, inevitably, will not always be reasoned or
moderate; public figures as well as public officials will be
subject to vehement, caustic, and sometimes
unpleasantly sharp attacks. The candidate who vaunts
his spotless record and sterling integrity cannot
convincingly cry 'Foul!' when an opponent or an
industrious reporter attempts to demonstrate the
contrary.
 Internal citations and quotes omitted
Toffoloni v. Hustler
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(Nancy Benoit case)
For More Information
I keep a blog on media law and First Amendment matters:
The Legal Satyricon (www.randazza.com)
Or use the contact information below
____________________________
Marc John Randazza
Attorney at Law
Weston, Garrou, Walters & Mooney
781 Douglas Avenue
Altamonte Springs, Florida 32714
Tel: (407) 975-9150
Fax: (407) 774-6151
Mobile: (407) 739-7887
E-mail: mrandazza@firstamendment.com
Dedicated to the Defense of Freedom
And the Protection of Creative Expression
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