In yet another blogger vs police chief clash, Orlando Police Chief Val Demings is threatening to sue a local blogger for criticizing her on his blog.
At least she hasn’t ordered his home raided.
Nevertheless, she still doesn’t have a legal chance in hell to get Ezell Harris to shut his blog down.
On the contrary, she just placed herself in the national spotlight.
Now we all know that she received a written censure for not securing her firearm after someone stole her 9mm handgun from her agency sports utility vehicle on February 27th in an incident that was not reported until a month later. And only after someone tipped off the Orlando Sentinel. The gun, along with a pair of handcuffs and police baton, have not been recovered.
Now we all know that someone stole an Orlando police cruiser after the officer carelessly jumped out of his car, leaving the car running and doors unlocked. The car was found a few blocks away. Police suspect the culprit was a teen who had escaped from another officer.
Now we all know that Chief Demings slapped an Orlando police officer on the wrist with an eight-hour suspension after a video tape revealed he had pushed a woman down the stairs in a nightclub. Officer Fernando Trinidad claimed he had arrested Jessica Asprilla for battery on a police officer – which would have sent her to prison – but the videotape proved it was the other way around.
While all these stories are true – and were reported by the local media – Demings’ lawyer, Griffith J. Winthrop III, believes “the truth is not always a defense,” according to the Orlando Sentinel.
He also believes the blog paints Demings in “a false light.”
Obviously, he is clueless as to what argument to pursue in this matter.
Demings’ attorney, Griffith J. Winthrop III, accuses Harris in an April 17 letter of “maligning” and defaming the chief. The letter also says Harris violated the law by using her “persona” and identity and claims Harris’ behavior is “malicious.”
Winthrop would not elaborate on Demings’ claims or the logic behind them. He said he prefers to argue the matter in court.
“Truth is not always a defense,” Winthrop said. “I hope he [Harris] gets himself a really good lawyer,” he said.
And speaking of good lawyers, Orlando First Amendment attorney – and Photography is Not a Crime reader – Marc Randazza used his own blog to express his sentiments over this case.
The last thing that Winthrop should hope for is for Harris to get a “really good lawyer.” Even a half-assed moron of a lawyer would know that Demings’ claims are unsupportable, and that Winthrop is completely off-base. In Massachusetts, truth isn’t necessarily a defense to a defamation action — if the speech is on a matter of private concern. Here in Florida, Winthrop is dead wrong. Whoever taught this guy defamation law should be fired.
Randazza does an excellent job of breaking down Florida defamation law, including defemation of a public figure, which Demings happens to be. While I have not yet spent anytime in law school, these are things I learned in my media law class back in the early 1990s as I pursued a degree in journalism at Florida International University.
The purpose of the First Amendment is to ensure the unfettered exchange of ideas among the American people. See Roth v. United States, 354 U.S. 476, 484 (1957). Florida courts have held that the First Amendment requires neither politeness nor fairness. See Pullam v. Johnson, 647 So.2d 254, 258 (Fla. 1st DCA 1994); Mile Marker Inc. v. Petersen Publ’g LLC, 811 So.2d 841, 845 (Fla. 4th DCA 2002). Moreover, the Plaintiff must prove the actual malice element by clear and convincing evidence. Id.; Friedgood v. Peter’s Publishing Company, 521 So.2d 236, 239 (Fla. 4th DCA 1988).
In other words, Winthrop couldn’t have his defamation law more backwards. If his client thinks that she can bring a defamation action on these facts, she is in for a rude awakening. Not only is truth a defense, but even if Harris’ website does contain defamatory falsehoods, Demings’ case should not survive a motion to dismiss. Given that she is a public official, Demings would need to prove by clear and convincing evidence that Harris published false and defamatory statements while knowing them to be false, or while subjectively entertaining serious doubts as to the truth of the publication. New York Times v. Sullivan, 376 U.S. 254. Fortunately for Harris, all the statements on his website appear to be republications from other news sources or facts gathered from the public record.
While Winthrop has listed several areas of expertise on his website, including employment law, appellate law and commercial law, it doesn’t appear that he has any experience in First Amendment law.
So I’m hoping Harris retains Randazza on this case to provide that lesson he needs.
I am a multimedia journalist who has been fighting a lengthy legal battle after having photographed Miami police against their wishes in Feb. 2007. Please help the fight by donating to my Legal Defense Fund in the top left sidebar, which helps pay for the thousands of dollars I’ve acrued in debt since my arrest. To keep updated on the latest articles, join my networks at Facebook, Twitter and Friendfeed.