Case No.: 5D11-2754

Date: April 11, 2014

Case type: Defamation

Court: Fifth District Court of Appeal

Author of opinion: Judge Jacqueline R. Griffin

Lawyers for petitioner: Frank H. Killgore Jr. and Christopher M. Harne, Killgore, Pearlman, Stamp, Ornstein & Squires, Orlando

Lawyers for respondent: Marc J. Randazza, Las Vegas, and Jason A. Fischer, Miami, Randazza Legal Group; Richard A. Sherman Sr., Richard A. Sherman P.A., Fort Lauderdale; and C. Richard Fulmer Jr., Fulmer LeRoy Albee, Fort Lauderdale

Panel: Judges Griffin, C. Alan Lawson and Jay P. Cohen

Originating court: Orange Circuit Court

Tentatively taking on Internet libel law, a Florida appellate court extended a protection created for news media to a graduate student blogger.

His commentary followed a May 2008 video that went viral: Two Siberian huskies in a pasture, shot repeatedly while their owner tries to protect them. The dogs were accused of attacking cattle. The shooter, Christopher Comins, was a friend of the Orange County landowner.

The commentator was a University of Florida doctoral candidate named Matthew Frederick VanVoorhis, although for his blog Public Intellectual he used the pseudonym M. Frederick Voorhees. After seeing the video, he started posting blog items about it; soon death threats and Comins’ contact information popped up in public comments.

Comins’ lawyer wrote “Voorhees” in care of the university, asking him to take down the blog, or at least the death threats and contact info. In May 2009, after tracking down VanVoorhis’ name and address, he filed a libel complaint.

The dogs survived. Comins was acquitted of animal cruelty charges.

And the complaint against VanVoorhis was summarily dismissed because Comins failed to comply with a law requiring libel plaintiffs to demand a retraction before filing suit.

The Fifth District Court of Appeal affirmed the trial judge’s ruling for VanVoorhis on April 11. Citing a 64-year-old precedent, the court loosely fashioned a two-part guideline for determining whether a blogger is, like a media defendant, entitled to a retraction demand: the medium should invite public comment and present both sides of an issue.

Even-handed Style

“There are many outstanding blogs on particular topics, managed by persons of exceptional expertise, to whom we look for the most immediate information on recent developments,” Judge Jacqueline Griffin wrote for a unanimous panel. “Other blogs run the gamut of quality of expertise, explanation and even-handed treatment of their subjects.”

Public Intellectual passed the test, suggesting it’s broad enough to include editorializing. On the subject of Comins and the dog shooting, VanVoorhis wasn’t exactly objective.

Last week a Google search for “Christopher Comins” produced at the top of the list this June 2008 commentary on Public Intellectual: “Barbarian Hillbilly Dog-Assassin (w/ Friends in High Places).”

A comment by “Voorhees” said, “So far I haven’t deleted anything Mr. Commins [sic] said here, even though most of it is pure drivel, as I believe in free speech and open dialogue.” He quotes Voltaire.

“I don’t think objectivity is necessary” to meet the Fifth District’s standard, said Marc Randazza, the lead trial attorney for VanVoorhis.

“They’re not deciding that media is something you are, they’re going to look at what you do, so technically anyone can be ‘media’ as long as what they’re doing is journalism,” he said. Randazza’s firm, Randazza Legal Group, with offices in Las Vegas and Miami, concentrates on defamation defense.

He said his client depended on reliable sources. Therefore, “I think the record shows that Mr. VanVoorhis was doing journalism.”

Robert Rogers, an associate in Holland & Knight’s Orlando office, wasn’t involved in the case but wrote about it for his firm’s website. He was generally approving, calling the Fifth District ruling “a win for independent news gatherers and publishers in Florida.”

But in an interview he agreed the court didn’t provide a model of clarity for future reference.

“The big question is what kind of blogger is not going to qualify for protection under the test enunciated by the Fifth DCA?” Rogers asked.

Retraction Law

The law discussed in Comins v. VanVoorhis, Florida Statutes Section 770.01, states, in part, “Before any civil action is brought for publication or broadcast, in a newspaper, periodical or other medium, of a libel or slander, the plaintiff shall, at least five days before [suing] … serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory.”

Enacted in 1933, the law survived an equal protection challenge in 1950. The Florida Supreme Court, in Ross v. Gore, defended granting a “special privilege” to newspapers and periodicals. The Legislature’s purpose was to give them “an opportunity in every case to make a full and fair retraction in mitigation of the damages which a person may have suffered by reason of the publication.”

“This objective is a salutary one, and we do not think it constitutes unjust discrimination in favor of newspapers and periodicals,” the court wrote.

Later the law was amended to include broadcast media. Judges expanded the definition of “other medium” to include wire services and, now, the Internet.

Rogers said a writer’s anonymity, as with Voorhees/VanVoorhis, can undermine the need for speed in correcting libelous statements.

“Usually you want to move quickly. That’s the whole reason it’s a short time frame,” he said. “When you have to take steps to find out who you’re talking to, that delay can cause harm.”

In his online alert, he advises clients to always send a retraction demand, no matter who the defendant may be.

Lawyers for Comins could not be reached to ask if they will try to appeal the Fifth District decision to the Florida Supreme Court.

Randazza wouldn’t welcome the move.

“I think the order’s clear, and I don’t think there’s anything for the Florida Supreme Court to review,” he said. At the same time, if Comins’ lawyers seek an appeal and the court agrees, “I’ll see them in Tallahassee.”