marc j. randazza, esq. weston, garrou, walters & mooney

Marc J. Randazza, Esq.Marc J. Randazza, Esq.Weston, Garrou, Walters & MooneyWeston, Garrou, Walters & Mooney

Defamation, Defamation, Intentional Infliction of Intentional Infliction of Emotional Distress, Emotional Distress, Privacy, and False Privacy, and False

Light TortsLight Torts

Defamation - GenerallyDefamation - Generally

Defamation is expression that:Defamation is expression that:– Tends to damage a person’s standing in Tends to damage a person’s standing in

the community.the community.– Through words that attack an Through words that attack an

individual’s character or abilities.individual’s character or abilities.– Damage to reputation. Damage to reputation.

Defamation – Generally Defamation – Generally (cont’d)(cont’d)

Libel = printed defamationLibel = printed defamation Slander = spoken defamationSlander = spoken defamation

Defamation – HistoricallyDefamation – Historically

The Zenger trial - 1734The Zenger trial - 1734– John Peter Zenger was the publisher of John Peter Zenger was the publisher of The The

New York Weekly JournalNew York Weekly Journal..– Zenger published articles critical of the Zenger published articles critical of the

governor of the colony.governor of the colony.– Governor sued Zenger for “seditious libel.”Governor sued Zenger for “seditious libel.”– Claimed the paper would “inflam[e] their Claimed the paper would “inflam[e] their

minds with contempt of His Majesty's minds with contempt of His Majesty's government, and greatly disturbing the peace government, and greatly disturbing the peace thereof"thereof"

Defamation – HistoricallyDefamation – Historically Seditious libel was a crime of Seditious libel was a crime of

speaking out against the speaking out against the government.government.

It was a strict liability crime & jury It was a strict liability crime & jury was charged with the simple task of was charged with the simple task of determining whether Zenger determining whether Zenger published the complained of published the complained of statements.statements.

Zenger argued that the statements Zenger argued that the statements could not be libelous if they were could not be libelous if they were true. true.

Defamation – HistoricallyDefamation – Historically English law at the time did not recognize English law at the time did not recognize

truth as a defense.truth as a defense. Libel law was primarily used to protect Libel law was primarily used to protect

the government from criticism.the government from criticism. The jury refused to enter a guilty The jury refused to enter a guilty

verdict.verdict. Established the core of U.S. defamation Established the core of U.S. defamation

law: law: Truth is an absolute defense. Truth is an absolute defense. Laid the cornerstone for the freedom of Laid the cornerstone for the freedom of

the press.the press.

Defamation NowDefamation Now

Libel = printed defamationLibel = printed defamation Slander = spoken defamationSlander = spoken defamation

Modern Defamation Modern Defamation ElementsElements

1. 1. DefamationDefamation – there was defamatory – there was defamatory language.language.

2.2. IdentificationIdentification – the defamation was – the defamation was about the plaintiff.about the plaintiff.

3.3. PublicationPublication – the defamation was – the defamation was disseminated.disseminated.

4.4. FaultFault – the defamation was published – the defamation was published as a result of recklessness or negligence.as a result of recklessness or negligence.

5.5. FalsityFalsity – that the statement was – that the statement was false.false.

6. 6. DamagesDamages (unless it is per se (unless it is per se defamatory).defamatory).

DefamationDefamation The Restatement of Torts says that The Restatement of Torts says that

defamation consists of statements that defamation consists of statements that tend to expose a person to:tend to expose a person to:– HatredHatred– RidiculeRidicule– ContemptContempt

Judge determines whether message is Judge determines whether message is capable of a defamatory meaning.capable of a defamatory meaning.

Jury decides whether its everyday Jury decides whether its everyday meaning makes it defamatory. meaning makes it defamatory.

DefamationDefamation

Key defamation topicsKey defamation topics– Suggesting P is involved in crimeSuggesting P is involved in crime– Serious moral failingsSerious moral failings– Incompetence in business or professional lifeIncompetence in business or professional life– UnpatrioticUnpatriotic– Mentally incompetentMentally incompetent– AlcoholicAlcoholic– Infected with a “loathsome disease”Infected with a “loathsome disease”

Businesses, products, and individuals can Businesses, products, and individuals can be defamed (theoretically)be defamed (theoretically)


Single instance rule:Single instance rule:– Language charging a person with Language charging a person with

ignorance or error on a single occasion ignorance or error on a single occasion is not defamatory without proof of loss.is not defamatory without proof of loss.

Saying a referee made a bad call is Saying a referee made a bad call is one thing.one thing.

Saying a referee was an idiot.Saying a referee was an idiot. Saying that a referee is on the take… Saying that a referee is on the take…


Other topics of defamation suitsOther topics of defamation suits– Implying that someone is a prostitute Implying that someone is a prostitute

(unless they are)(unless they are)– Inaccurate reports of someone having Inaccurate reports of someone having

an STDan STD– Not “regular” illnesses.Not “regular” illnesses.– Calling someone a traitor or a spy.Calling someone a traitor or a spy.

Defamation - IdentificationDefamation - Identification

Defamatory CharactersDefamatory Characters Real people who provide basis for unflattering Real people who provide basis for unflattering

characters in works of fiction.characters in works of fiction. May sue for libelMay sue for libel If author fails to disguise them.If author fails to disguise them. E.g. Real person and fictional person have E.g. Real person and fictional person have

the same name.the same name.

Defamation - IdentificationDefamation - Identification Geisler v. Petrocelli, Geisler v. Petrocelli, 6 Media L. Rep. 1023 (1980).6 Media L. Rep. 1023 (1980).

Book called Book called Match SetMatch Set Main character was a transsexual who helped fix Main character was a transsexual who helped fix

tennis tournaments and had tons of weird sex. tennis tournaments and had tons of weird sex. Name of Character, Melanie Geisler.Name of Character, Melanie Geisler. Ooops – there was a real Melanie Geisler, who kind of Ooops – there was a real Melanie Geisler, who kind of

fit the description of the fictional MG.fit the description of the fictional MG. ““her body… firm and compact, though heavier than her body… firm and compact, though heavier than

she would like.”she would like.” Geisler had more proof to offer though – that Geisler had more proof to offer though – that

someone made the connection, or would. someone made the connection, or would.


Smith v. Stewart caseSmith v. Stewart case Red Hat ClubRed Hat Club Character “based on” Vicki StewartCharacter “based on” Vicki Stewart She is a drunk and sexually “liberated” She is a drunk and sexually “liberated” GA Court of Appeals held that she was GA Court of Appeals held that she was

sufficiently identifiedsufficiently identified


MisidentificationMisidentification See Bell v. Associated Press, See Bell v. Associated Press,

584 F.Supp. 128 (D.D.C. 1984) (756)584 F.Supp. 128 (D.D.C. 1984) (756)

Impostor says he is Theo Bell, a member Impostor says he is Theo Bell, a member of the Pittsburgh Steelers.of the Pittsburgh Steelers.

Newspaper republishes the police report.Newspaper republishes the police report.

Defamatory?Defamatory?

DefamationDefamationFalse Statement of FACTFalse Statement of FACT

The statement must be one of fact.The statement must be one of fact. Not opinionNot opinion Who decides that? Who decides that?

The Court Decides.The Court Decides. No bright line testNo bright line test Court reviews from perspective of an Court reviews from perspective of an

ordinary reader.ordinary reader.

False Statement of FACTFalse Statement of FACTFortson v. Colangelo & NY Post, Fortson v. Colangelo & NY Post,

434 F.Supp.2d 1369(S.D. Fla. 434 F.Supp.2d 1369(S.D. Fla. 2006)2006)

Danny Fortson (Dallas Mavs) pushed Danny Fortson (Dallas Mavs) pushed Zarko Cabarkapa (Phx. Suns) while Zarko Cabarkapa (Phx. Suns) while defending.defending.

Zarko falls and breaks his wrist.Zarko falls and breaks his wrist. Jerry Colangelo is owner of Phx suns.Jerry Colangelo is owner of Phx suns. NY Post and Columnist Vescey gave NY Post and Columnist Vescey gave

Fortson a hard time in public.Fortson a hard time in public.



Colangelo stated, of Fortson:Colangelo stated, of Fortson: ““He’s a thug. He always has been and is.”He’s a thug. He always has been and is.” He shoud be put down for every day He shoud be put down for every day

Cabarkapa is out”Cabarkapa is out” Vecsey wrote:Vecsey wrote:

Fortson should be suspended.Fortson should be suspended. He Mugged Cabarkapa He Mugged Cabarkapa Fortson is a “meaningless mass”Fortson is a “meaningless mass”



Rhetorical HyperboleRhetorical Hyperbole Pure opinionPure opinion Neither is actionableNeither is actionable Loose, figurative, or hyperbolic Loose, figurative, or hyperbolic

language cannot be reasonably language cannot be reasonably interpreted as stating actual facts interpreted as stating actual facts about their target. about their target.

InjuryInjury

The defamatory statement must The defamatory statement must actually injure the plaintiff’s actually injure the plaintiff’s reputation.reputation.

What effect will statement have on What effect will statement have on an average and ordinary reader?an average and ordinary reader?

Defamation – Group LibelDefamation – Group Libel

The smaller the group, the more likely The smaller the group, the more likely that identification will stick.that identification will stick.

All of the NFL Players are on SteroidsAll of the NFL Players are on Steroids not sufficiently small to warrant libel.not sufficiently small to warrant libel.

All of the Oakland Raiders are on All of the Oakland Raiders are on SteroidsSteroids.. Possibly. Possibly.

The entire starting secondary for the The entire starting secondary for the Raiders is on Steroids.Raiders is on Steroids. Yes, sufficiently small for a group libel action. Yes, sufficiently small for a group libel action.

Defaming Public FiguresDefaming Public FiguresNew York Times v. SullivanNew York Times v. Sullivan

376 U.S. 254 (1964)376 U.S. 254 (1964)

VERY IMPORTANT CASEVERY IMPORTANT CASE Even if the content is false and Even if the content is false and

defamatory, defamatory, A public A public officialofficial loses loses Unless they can establish:Unless they can establish:

Knowing falsity, orKnowing falsity, or Reckless disregard for the truthReckless disregard for the truth

This is the “Actual Malice” standard.This is the “Actual Malice” standard.

New York Times v. SullivanNew York Times v. Sullivan

NYT ran an ad called “heed their rising NYT ran an ad called “heed their rising voices.”voices.”

Ad sought support for the Civil Rights Ad sought support for the Civil Rights Movement.Movement.

Ad contained several false Ad contained several false statements.statements.

Libel suits were frequent tools in the Libel suits were frequent tools in the fight against the civil rights fight against the civil rights movement.movement.


Ad falsely claimed:Ad falsely claimed: Dining hall at Alabama state college was Dining hall at Alabama state college was

padlocked by police.padlocked by police. There was an attempt to starve students There was an attempt to starve students

into submission.into submission. Police ringed the campus.Police ringed the campus. MLK was not arrested 7 times (it was only MLK was not arrested 7 times (it was only

4).4). MLK was not assaulted (conflicting MLK was not assaulted (conflicting

stories)stories)

New York Times v. SullivanNew York Times v. Sullivan Montgomery, Ala. Police commissioner, LB Montgomery, Ala. Police commissioner, LB

Sullivan demanded a retraction.Sullivan demanded a retraction. NYT refused.NYT refused. Sullivan and Alabama Governor sued NYT Sullivan and Alabama Governor sued NYT

for defamation.for defamation. Sullivan supervised the police so it Sullivan supervised the police so it

defamed him.defamed him. Alabama law was still stuck back in the Alabama law was still stuck back in the

Zenger days of strict liability.Zenger days of strict liability. Sullivan was awarded $500,000 by an Sullivan was awarded $500,000 by an

Alabama Jury. Alabama Jury.


US Supreme Court reversed 9-0.US Supreme Court reversed 9-0. Brennan: There is “Brennan: There is “a profound national a profound national

commitment to the principle that debate commitment to the principle that debate on public issues should be uninhibited, on public issues should be uninhibited, robust, and wide-open, and that it may robust, and wide-open, and that it may well include vehement, caustic, and well include vehement, caustic, and sometimes unpleasantly sharp attacks on sometimes unpleasantly sharp attacks on government and public officials.”government and public officials.”

First Amendment needs “breathing room”First Amendment needs “breathing room”

Public FiguresPublic Figures

Supreme court built on Sullivan.Supreme court built on Sullivan. Expanded actual malice test to public Expanded actual malice test to public

figuresfigures as well as public officials. as well as public officials. – Curtis Publishing Co. v. ButtsCurtis Publishing Co. v. Butts – Athletic director – Athletic director

at the Univ. of Georgia was a public figure.at the Univ. of Georgia was a public figure.

Curtis Pub. Co. v. Butts, Curtis Pub. Co. v. Butts, 388 U.S. 130 (U.S. 1967)388 U.S. 130 (U.S. 1967)

News article entitled "News article entitled "The Story of a College The Story of a College Football FixFootball Fix" "

Prefaced by a note from the editors stating: Prefaced by a note from the editors stating: – ""Not since the Chicago White Sox threw the 1919 Not since the Chicago White Sox threw the 1919

World Series has there been a sports story as World Series has there been a sports story as shocking as this one. . . . Before the University of shocking as this one. . . . Before the University of Georgia played the University of Alabama . . . Georgia played the University of Alabama . . . Wally Butts . . . gave [to its coach] . . . Georgia's Wally Butts . . . gave [to its coach] . . . Georgia's plays, defensive patterns, all the significant plays, defensive patterns, all the significant secrets Georgia's football team possessed."secrets Georgia's football team possessed."


Article said that Burnett accidentally Article said that Burnett accidentally overheard a telephone conversation between overheard a telephone conversation between Butts and the head coach of the University of Butts and the head coach of the University of Alabama, Paul Bryant, Alabama, Paul Bryant,

Approximately one week prior to the game. Approximately one week prior to the game. Said "Butts outlined Georgia's offensive plays Said "Butts outlined Georgia's offensive plays

. . . and told . . . how Georgia planned to . . . and told . . . how Georgia planned to defend . . . . Butts mentioned both players defend . . . . Butts mentioned both players and plays by name." and plays by name."

The readers were told that Burnett made The readers were told that Burnett made notes of the conversation, and specific notes of the conversation, and specific examples of the divulged secrets were set examples of the divulged secrets were set out.out.


"the Georgia players, their moves analyzed "the Georgia players, their moves analyzed and forecast like those of rats in a maze, and forecast like those of rats in a maze, took a frightful physical beating," took a frightful physical beating,"

Article said that the players, and other Article said that the players, and other sideline observers, were aware that sideline observers, were aware that Alabama was privy to Georgia's secrets. Alabama was privy to Georgia's secrets.

It set out the series of events commencing It set out the series of events commencing with Burnett's later presentation of his notes with Burnett's later presentation of his notes to the Georgia head coach, Johnny Griffith, to the Georgia head coach, Johnny Griffith,

Butts resigned from the University's athletic Butts resigned from the University's athletic affairs, for health and business reasons. affairs, for health and business reasons.


The article's conclusion made clear its The article's conclusion made clear its expected impact:expected impact:

"The chances are that Wally Butts will "The chances are that Wally Butts will never help any football team again. . . . never help any football team again. . . . The investigation by university and The investigation by university and Southeastern Conference officials is Southeastern Conference officials is continuing; motion pictures of other continuing; motion pictures of other games are being scrutinized; where it will games are being scrutinized; where it will end no one so far can say. But careers will end no one so far can say. But careers will be ruined, that is sure."be ruined, that is sure."


In a defamation case, a "public In a defamation case, a "public figure" will need to show:figure" will need to show:– Damage due toDamage due to– highly unreasonable conduct highly unreasonable conduct – constituting an extreme departure from constituting an extreme departure from

the standards of investigation and the standards of investigation and reporting ordinarily adhered to by reporting ordinarily adhered to by responsible publishers. responsible publishers.


Who = Butts?Who = Butts? ClearlyClearly

– Steve SpurrierSteve Spurrier– Randy MossRandy Moss– Alex RodriguezAlex Rodriguez– Tiger WoodsTiger Woods


Who = Butts?Who = Butts? Not so clearlyNot so clearly

– Minor playersMinor players– Practice Squad PlayersPractice Squad Players– Coaches at smaller schools.Coaches at smaller schools.

Limited Purpose Public Limited Purpose Public FiguresFigures

Someone who injects themselves into a Someone who injects themselves into a public controversy to affect its outcome public controversy to affect its outcome (See Gertz v. Welch).(See Gertz v. Welch).

They have to prove actual malice only for They have to prove actual malice only for defamation directly connected to their defamation directly connected to their voluntary acts.voluntary acts.

They remain private persons for libelous They remain private persons for libelous statements about their private lives.statements about their private lives.

You can be a “nobody” and still be a public You can be a “nobody” and still be a public figure.figure.

Limited Purpose P.F.Limited Purpose P.F.

Alleged defamation involves a public Alleged defamation involves a public controversy.controversy.

Person suing for libel has voluntarily Person suing for libel has voluntarily joined the fray.joined the fray.

Person suing for libel has tried to Person suing for libel has tried to affect the outcome of the affect the outcome of the controversy.controversy.

You can regain your private status You can regain your private status after a long time lapse.after a long time lapse.

Used To Be A Public FigureUsed To Be A Public Figure

Time can transform a public figure into a Time can transform a public figure into a private one.private one.

Case by case basis.Case by case basis. An athlete may pass into memory, but if An athlete may pass into memory, but if

he is involved in newsworthy events and he is involved in newsworthy events and matters of public interest – the PF status matters of public interest – the PF status may never go away may never go away in that context.in that context.

Defamation – Florida’s ElementsDefamation – Florida’s Elements

In order to sustain a cause of action for defamation In order to sustain a cause of action for defamation in Florida, the Plaintiff must allege in Florida, the Plaintiff must allege

false statements of fact, false statements of fact, published to a third person, published to a third person, which caused damage to the Plaintiff. which caused damage to the Plaintiff. Without those essential elements, there is no libel. Without those essential elements, there is no libel. See, e.g., See, e.g., Valencia v. CitibankValencia v. Citibank, 728 So.2d 300 , 728 So.2d 300

(Fla.3d DCA 1999). See also (Fla.3d DCA 1999). See also Cape Publications, Inc. Cape Publications, Inc. v. Reakesv. Reakes, 840 So.2d 277, 279-80 (Fla. 5th DCA , 840 So.2d 277, 279-80 (Fla. 5th DCA 2003); 2003); Linafelt v. Beverly Enterprieses-Florida, Inc.Linafelt v. Beverly Enterprieses-Florida, Inc., , 745 So.2d 386, 388 (Fla. 1st DCA 1999); 745 So.2d 386, 388 (Fla. 1st DCA 1999); Smith v. Smith v. Cuban Am. Nat’l Found.,Cuban Am. Nat’l Found., 731 So.2d 702, 705 (Fla. 731 So.2d 702, 705 (Fla. 3rd DCA 1999)).3rd DCA 1999)).

Defamation – Florida’s ElementsDefamation – Florida’s Elements

ISOLATED FALSEHOODS – ISOLATED FALSEHOODS – Even if there are isolated false facts, Even if there are isolated false facts, ““substantial truth doctrine” substantial truth doctrine”

isolated and cherry-picked errors or falsehoods isolated and cherry-picked errors or falsehoods will not sustain a cause of action for will not sustain a cause of action for defamation. defamation. Smith v. Cuban American Nat’l Smith v. Cuban American Nat’l Foundation,Foundation, 731 So.2d 702, 706 (Fla. 3d DCA 731 So.2d 702, 706 (Fla. 3d DCA 1999) (“Under the substantial truth doctrine, a 1999) (“Under the substantial truth doctrine, a statement does not have to be perfectly statement does not have to be perfectly accurate if the ‘gist’ or the ‘sting’ of the accurate if the ‘gist’ or the ‘sting’ of the statement is true.”).statement is true.”).

Florida ElementsFlorida Elements

A statement is not considered to be a A statement is not considered to be a defamatory falsehood unless it ‘would defamatory falsehood unless it ‘would have a different effect on the mind of have a different effect on the mind of the reader from that which the the reader from that which the pleaded truth would have produced.’ pleaded truth would have produced.’

Woodard v. Sunbeam Television Corp.Woodard v. Sunbeam Television Corp., 616 So.2d 501, 503 (Fla. 3d , 616 So.2d 501, 503 (Fla. 3d DCA 1993); DCA 1993); Early v. Palm Beach Newspapers, Inc.,Early v. Palm Beach Newspapers, Inc., 354 So.2d 351, 354 So.2d 351, 352 (Fla. 1977); 352 (Fla. 1977); Bishop v. Wometco Enters., Inc.,Bishop v. Wometco Enters., Inc., 235 So.2d 759 235 So.2d 759 (Fla. 3d DCA 1970); (Fla. 3d DCA 1970); Hill v. Lakeland Ledger Publ’g Corp.,Hill v. Lakeland Ledger Publ’g Corp., 231 So.2d 231 So.2d 254, 256 (Fla. 2d DCA 1970); 254, 256 (Fla. 2d DCA 1970); Hammond v. Times Publ’g Co.,Hammond v. Times Publ’g Co., 162 162 So.2d 681, 682 (Fla. 2d DCA 1964); So.2d 681, 682 (Fla. 2d DCA 1964); McCormick v. Miami Herald McCormick v. Miami Herald Publishing Co.,Publishing Co., 139 So.2d at 197, 200 (Fla. 2d DCA 1962). 139 So.2d at 197, 200 (Fla. 2d DCA 1962).

Cautionary Tale – Cautionary Tale – Murphy v. Boston HeraldMurphy v. Boston Herald

Boston Herald covers story about a Boston Herald covers story about a rape caserape case

14 year old victim14 year old victim

Murphy v. Boston HeraldMurphy v. Boston Herald

Herald reportsHerald reports Judge says “she can’t go through life Judge says “she can’t go through life

as a victim, tell her to get over it”as a victim, tell her to get over it” National media frenzyNational media frenzy


Judge comes under major attackJudge comes under major attack Judge suesJudge sues Must overcome actual malice Must overcome actual malice

standardstandard


Murphy claims that he said that she Murphy claims that he said that she needed counseling to help her cope needed counseling to help her cope with the crimewith the crime

Needed Needed helphelp to get over it to get over it Clashing storiesClashing stories


Why did Herald lose?Why did Herald lose? Herald reported based on an Herald reported based on an

interview with a prosecutorinterview with a prosecutor Prosecutor is a member of the Bar Prosecutor is a member of the Bar

and a state officialand a state official Reporter said he trusted himReporter said he trusted him But Reporter had thrown away his But Reporter had thrown away his

notes!notes!


1.1. If a story seems to be scathing, ask a few If a story seems to be scathing, ask a few sources about it. If someone has a sources about it. If someone has a contradictory version of the facts, at least contradictory version of the facts, at least mention it.mention it.

2.2. Have a policy for when you discard your notes. Have a policy for when you discard your notes. The longer the time period, the better. But, The longer the time period, the better. But, when a reporter is called to a deposition, he when a reporter is called to a deposition, he should be able to say “I destroyed my notes on should be able to say “I destroyed my notes on this day, as is consistent with my policy.”this day, as is consistent with my policy.”

3.3. Don’t let your lawyers talk you into skipping the Don’t let your lawyers talk you into skipping the intermediate appellate court. If you do that, the intermediate appellate court. If you do that, the only option you have is to petition the Supreme only option you have is to petition the Supreme Court – good luck with that.Court – good luck with that.

Veranda Partners v. GilesVeranda Partners v. Giles

Infliction of Emotional Infliction of Emotional DistressDistress

Hustler v. Falwell, 485 U.S. 46 (1988).Hustler v. Falwell, 485 U.S. 46 (1988). The The People v. Larry FlyntPeople v. Larry Flynt case. case. Underlying case was a libel caseUnderlying case was a libel case But jury held that nobody would think But jury held that nobody would think

it was true, therefore not it was true, therefore not defamatory.defamatory.

IED case survived though.IED case survived though.

Hustler v. FalwellHustler v. Falwell

Hustler Hustler published this published this ad.ad.

Discusses Jerry Discusses Jerry Falwell having Falwell having sex with his sex with his mom in an mom in an outhouse.outhouse.

Hustler v. FalwellHustler v. Falwell Falwell:Falwell: My first time was in an outhouse outside Lynchburg, My first time was in an outhouse outside Lynchburg,

VirginiaVirginia Interviewer:Interviewer: Wasn’t it a little cramped? Wasn’t it a little cramped? Falwell:Falwell: Not after I kicked the goat out. Not after I kicked the goat out. Interviewer:Interviewer: I see. You must tell me all about it. I see. You must tell me all about it. Falwell:Falwell: I never really expected to make it with Mom, but then after 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, she showed all the other guys in town such a good time, I figured, "What the hell!""What the hell!"

Interviewer:Interviewer: But your Mom? Isn’t that a little odd? But your Mom? Isn’t that a little odd? Falwell:Falwell: I don’t think so. Looks don’t mean that much to me in a I don’t think so. Looks don’t mean that much to me in a

woman.woman. Interviewer:Interviewer: Go on. Go on. Falwell:Falwell: Well, we were drunk off our God-fearing asses on Campari, 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. 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 donationAnd Mom looked better than a Baptist whore with a $100 donation

Interviewer:Interviewer: Campari in the crapper with Mom. how Campari in the crapper with Mom. how interesting.. .Well how was it?interesting.. .Well how was it?

Falwell:Falwell: The Campari was great but mom passed out before I could The Campari was great but mom passed out before I could come.come.

Interviewer:Interviewer: Did you ever try it again? Did you ever try it again? Falwell:Falwell: Sure. Lots of times. But not in the outhouse. Between Mom Sure. Lots of times. But not in the outhouse. Between Mom

and the shit, the flies were too much to bear.and the shit, the flies were too much to bear. Interviewer:Interviewer: We meant the Campari. We meant the Campari. Falwell:Falwell: Oh, yeah, I always get sloshed before I go to the pulpit. You Oh, yeah, I always get sloshed before I go to the pulpit. You

don’t think I could lay down all that bullshit don’t think I could lay down all that bullshit sobersober do you? do you?

Hustler v. FalwellHustler v. Falwell The sort of robust political debate encouraged by the The sort of robust political debate encouraged by the

First Amendment is bound to produce speech that is First Amendment is bound to produce speech that is critical of those who hold public office or those public critical of those who hold public office or those public figures who are "intimately involved in the resolution figures who are "intimately involved in the resolution of important public questions or, by reason of their of important public questions or, by reason of their fame, shape events in areas of concern to society at fame, shape events in areas of concern to society at large. … one of the prerogatives of American large. … one of the prerogatives of American citizenship is the right to criticize public men and citizenship is the right to criticize public men and measures. Such criticism, inevitably, will not always measures. Such criticism, inevitably, will not always be reasoned or moderate; public figures as well as be reasoned or moderate; public figures as well as public officials will be subject to vehement, caustic, public officials will be subject to vehement, caustic, and sometimes unpleasantly sharp attacks. The and sometimes unpleasantly sharp attacks. The candidate who vaunts his spotless record and sterling candidate who vaunts his spotless record and sterling integrity cannot convincingly cry 'Foul!' when an integrity cannot convincingly cry 'Foul!' when an opponent or an industrious reporter attempts to opponent or an industrious reporter attempts to demonstrate the contrary.demonstrate the contrary.

Internal citations and quotes omittedInternal citations and quotes omitted

Toffoloni v. HustlerToffoloni v. Hustler

(Nancy Benoit case)(Nancy Benoit case)

For More InformationFor More InformationI keep a blog on media law and First Amendment matters:I keep a blog on media law and First Amendment matters:The Legal SatyriconThe Legal Satyricon ( (www.randazza.com))

Or use the contact information belowOr use the contact information below____________________________ ____________________________ Marc John RandazzaMarc John Randazza

Attorney at LawAttorney at LawWeston, Garrou, Walters & MooneyWeston, Garrou, Walters & Mooney781 Douglas Avenue781 Douglas AvenueAltamonte Springs, Florida 32714 Altamonte Springs, Florida 32714

Tel: (407) 975-9150 Tel: (407) 975-9150 Fax: (407) 774-6151Fax: (407) 774-6151Mobile: (407) 739-7887Mobile: (407) 739-7887E-mail: E-mail: [email protected]

Dedicated to the Defense of FreedomDedicated to the Defense of FreedomAnd the Protection of Creative ExpressionAnd the Protection of Creative Expression________________________________ ________________________________

marc j. randazza, esq. weston, garrou, walters & mooney

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