Florida Justices Poised to Limit Defamation Shield Law for News

“This statute is a mess.”

That comment from Florida Supreme Court Chief Justice Carlos G. Muñiz summed up an hour long argument Wednesday in which the court railed against a state law created to protect news organizations from frivolous defamation suits.

The all-Republican court probed whether defamation defendants should be allowed an immediate second opinion from an appeals court if a trial judge denies them immunity under the state’s “Strategic Lawsuits Against Public Participation” act, commonly referred to as an anti-SLAPP law.

The Florida Bar has called for immediate appeals for news organizations that lose their motions to dismiss in cases where they’re accused of defamation. The Florida high court last year denied that request. In the current case, the justices are mulling whether to uphold a state appeals court that also denied an immediate appeal for a blogger accused of defaming a local attorney.

With lopsided questioning favoring the plaintiff, an attorney who said he was unfairly featured in a public affairs blog, the outcome appeared dim for the defendant blogger and other media organizations that rely on quick appeals to minimize the cost and delay resulting from litigation attacking their reporting.

“It’s hard to have a view of this case not colored by how ridiculous this statute is,” Muñiz said, noting that the statute talks about important rights but isn’t clear on appeals procedures.

The case is an opportunity for the justices to oppose The Florida Bar, which nearly a year ago urged the court to create a rule guaranteeing speedy appeals for media defendants.

Lack of swift appeals takes the teeth out of the anti-SLAPP law, the attorney for the defendant blogger said. “If you render the SLAPP statute meaningless, or say it’s simply attorneys fees, it’s open season for SLAPP suits in Florida,” said Dwayne A. Robinson. “You’ll get suits against speakers on the right and speakers on the left, and you’ll totally defeat the legislative purpose.”

Competing Rights

The argument dove into the conflict between competing free speech and court access rights that the 33 states with anti-SLAPP laws attempt to balance.

Robinson, a partner at Kozyak Tropin & Throckmorton, highlighted the free speech rights of defendant Kevin Vericker, who writes a public affairs blog in the small Miami-Dade County municipality of North Bay Village. His views on corruption in city government, including his allegations against the plaintiff, the village attorney Norman Powell, would be chilled if the state’s anti-SLAPP laws don’t allow for immediate appeal, Robinson said.

But that ignores Powell’s ability to vindicate his rights and collect damages under the law, said his attorney, Andrew M. Feldman.

“No one is going to question whether the First Amendment is important,” said Feldman, managing attorney of Feldman Kodsi. “The right to access courts under the Florida Constitution is also important.”

The justices pressed each side about the potential to have irreparable harm—a reason to get a quick appeal—if a defamation suit isn’t dismissed. Other questions discussed the award of attorneys fees to the victor in defamation cases and whether that was sufficient to disincentivize meritless suits.

Robinson referred to broad statutory language, which he argued indicated the legislature’s intent to protect free speech rights. Justice John D. Couriel said there wasn’t enough substance in the statute to give media companies the protection they say they’re entitled to.

“That’s legislative wrapping,” Couriel said. “And I’m opening the box, and there’s not much inside.”

The case is Vericker v. Powell, Fla., No. SC2022-1042, oral argument 3/6/24.