All of the posts cited are clearly expressions of opinion, not assertions of fact, and are therefore not actionable as defamation. Does the dealership’s lawyer not understand the fundamentals of the law of defamation?
It makes you wonder if anyone has any common sense. I can kind of understand the dealer being stupid, probably one person took the comments personal but the lawyer should have known better. He should have cooled things off instead of making things worse or was he more interested in what he could bill out.
I believe publishing the statement that the members of a business are “crooks” is per se defamatory under Florida law. One should not conclude from Mr. Poser’s pronouncement that such a statement would not be actionable.
This has nothing to do with the wisdom of the attorney’s cease and desist letter in these circumstances.
Either the lawyer is an idiot or else knows full well that there is no (legally defined) defamation there and is trying to scare them off. Attorneys are SO freaking ignorant when it comes to law vis-a-vis the internet. It doesn’t help that they are largely hugely arrogant, as well.
If you believe that, you may have an incomplete grasp of defamation law. Take a look at Lauderback v. Am. Broad. Cos., Inc., 741 F.2d 193, 196 (8th Cir. 1984) . Yes, it is an 8th Circuit case, not a Florida case. Nevertheless, that pesky ol’ First Amendment still exists in the Sunshine State – and that protects this kind of rhetorical hyperbole. See Greenbelt Coop. Pub. Ass’n. v. Bresler, 398 U.S. 6 (1970) (when it is apparent, in the context of a statement, that its meaning is figurative and hyperbolic, the falsity of the literal meaning does not equal a knowing falsehood or reckless disregard for the truth, thus a public figure can not prove actual malice as a matter of law); Lampkin-Asam v. Miami Daily News, Inc., 408 So. 2d 666 (Fla. 3d DCA 1981) (even otherwise defamatory words are hyperbolic, and thus protected speech when taken “in their proper context.”); Horsley v. Rivera, 292 F.3d 695, (11th Cir. 2002) (a claim that plaintiff was an “accomplice to homicide” protected as rhetorical hyperbole when taken in context); Fortson v. Colangelo & NY Post, 434 F.Supp.2d 1369 (S.D. Fla. 2006) (when words literally accuse plaintiff of a crime, there is no defamation when the context makes it clear that it is rhetorical and hyperbolic speech).
If you are a lawyer, turn in your law license for dumbassery. If you are not a lawyer, stop trying to play one in blog comments. You’ll just wind up being another idiot who repeats the “you can’t yell fire in a crowded theater” line — thinking that it makes them sound smart.
As Mark J. Randazza says: the claim that someone has committed a criminal act is per se defamatory in the sense that no inquiry into the way in which this is received by the audience is required (that is, the defendant cannot argue: “but in these circles, selling crack is not considered demonstrative of bad character”), but as with all potentially defamatory speech, it is not defamatory if it is rhetorical hyperbole and not an actual assertion.
Its usually the case that trying to shut someone down who is posting comments on the Internet is bound to backfire…. better to have a herd of raving fans who would come to your “rescue” and “counter blog/post.”
Whether or not the comments were defamatory the audience was small till now!
[…] Attorney Marc Randazza responds (PDF) to the nastygram over Twitter and Facebook complaints by a dissatisfied Florida man about Route 60 Hyundai. [Russ Lemmon, TCPalm] Earlier: Dec. 26. […]
11 Comments
“Morons.”
All of the posts cited are clearly expressions of opinion, not assertions of fact, and are therefore not actionable as defamation. Does the dealership’s lawyer not understand the fundamentals of the law of defamation?
With such an initial small following of people for both the twitter and Facebook sites, I wonder who tipped off the car dealer.
It’s getting to be such a fine line between having an opinion of something and outright defamation these days.
It makes you wonder if anyone has any common sense. I can kind of understand the dealer being stupid, probably one person took the comments personal but the lawyer should have known better. He should have cooled things off instead of making things worse or was he more interested in what he could bill out.
I believe publishing the statement that the members of a business are “crooks” is per se defamatory under Florida law. One should not conclude from Mr. Poser’s pronouncement that such a statement would not be actionable.
This has nothing to do with the wisdom of the attorney’s cease and desist letter in these circumstances.
Either the lawyer is an idiot or else knows full well that there is no (legally defined) defamation there and is trying to scare them off. Attorneys are SO freaking ignorant when it comes to law vis-a-vis the internet. It doesn’t help that they are largely hugely arrogant, as well.
Mr. Berger,
If you believe that, you may have an incomplete grasp of defamation law. Take a look at Lauderback v. Am. Broad. Cos., Inc., 741 F.2d 193, 196 (8th Cir. 1984) . Yes, it is an 8th Circuit case, not a Florida case. Nevertheless, that pesky ol’ First Amendment still exists in the Sunshine State – and that protects this kind of rhetorical hyperbole. See Greenbelt Coop. Pub. Ass’n. v. Bresler, 398 U.S. 6 (1970) (when it is apparent, in the context of a statement, that its meaning is figurative and hyperbolic, the falsity of the literal meaning does not equal a knowing falsehood or reckless disregard for the truth, thus a public figure can not prove actual malice as a matter of law); Lampkin-Asam v. Miami Daily News, Inc., 408 So. 2d 666 (Fla. 3d DCA 1981) (even otherwise defamatory words are hyperbolic, and thus protected speech when taken “in their proper context.”); Horsley v. Rivera, 292 F.3d 695, (11th Cir. 2002) (a claim that plaintiff was an “accomplice to homicide” protected as rhetorical hyperbole when taken in context); Fortson v. Colangelo & NY Post, 434 F.Supp.2d 1369 (S.D. Fla. 2006) (when words literally accuse plaintiff of a crime, there is no defamation when the context makes it clear that it is rhetorical and hyperbolic speech).
If you are a lawyer, turn in your law license for dumbassery. If you are not a lawyer, stop trying to play one in blog comments. You’ll just wind up being another idiot who repeats the “you can’t yell fire in a crowded theater” line — thinking that it makes them sound smart.
As Mark J. Randazza says: the claim that someone has committed a criminal act is per se defamatory in the sense that no inquiry into the way in which this is received by the audience is required (that is, the defendant cannot argue: “but in these circles, selling crack is not considered demonstrative of bad character”), but as with all potentially defamatory speech, it is not defamatory if it is rhetorical hyperbole and not an actual assertion.
Its usually the case that trying to shut someone down who is posting comments on the Internet is bound to backfire…. better to have a herd of raving fans who would come to your “rescue” and “counter blog/post.”
Whether or not the comments were defamatory the audience was small till now!
[…] Attorney Marc Randazza responds (PDF) to the nastygram over Twitter and Facebook complaints by a dissatisfied Florida man about Route 60 Hyundai. [Russ Lemmon, TCPalm] Earlier: Dec. 26. […]