Attempting to Silence Freedom of Speech

As the public is now aware, a one Rony Joel, former Public Utilities director for the City of Marco Island, sued this paper/author for defamation via slander and libel.

We seek to prepare the community for what is ahead.

Sometime later, we will expose via discovery every communication of every sort made by every current and former city councilor and public employee of the City since the South Collier construction project (the project where asbestos-laden pipe was crushed and therefore made airborne and handled improperly as evidenced by the EPA) until the present. Rest assured that even the emails and text messages sent to and from home computer/devices by anyone associated with the City will be subpoenaed. And naturally, as this information becomes a matter of public record it will be posted in this paper.

Until that time, and until other public records become available, we will present some salient judicial insight into how the courts have ruled regarding defamation.

The seminal case on defamation was the U.S. Supreme Court case New York Times Co. v. Sullivan. All state and federal libel cases base their rulings on this case. A subsequent U.S. Supreme Court case summarized that determining case thus:

In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Court "[determined] for the first time the extent to which the constitutional protections for speech and press limit a State's power to award damages in a libel action brought by a public official against critics of his official conduct." The State's trial court in that case believed the statements tended to injure the plaintiff's reputation or bring him into public contempt and were therefore libelous per se. The trial court therefore instructed the jury that it could presume falsity, malice, and some damage to reputation as long as it found that the defendant had published the statements and that the statements concerned the plaintiff. The Alabama Supreme Court upheld the judgment of the trial court in all respects.

But then the U.S. Supreme Court heard the case, and …

reversed, holding that against the "background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks," the Court noted that "interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth--whether administered by judges, juries, or administrative officials--and especially one that puts the burden of proving truth on the speaker." Freedoms of expression require "breathing space," A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions--and to do so on pain of libel judgments virtually unlimited in amount--leads to . . . 'self-censorship.' . . . Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so.

Hence, the U.S. Supreme Court found …

that the Constitution "prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not." That knowing must be made with "convincing clarity," or, in a later formulation, by "clear and convincing proof". The standards of New York Times apply not only when a public official sues a newspaper, but also when a "public figure" sues a magazine or news service.

In summary, for a public figure to prove defamation he/she/it must have clear and convincing proof that the statements were false AND were made with actual malice by proving that the statements were made with a reckless disregard of whether they were true or not. On the flip side, the person making the statements about the public figure need not fear being absolutely or even approximately correct.

Perhaps one might first ask before suing: who actually made the alleged defamatory statements, and then ask if the person that made them "believed [them] to be true" and did so with a "reckless disregard in they were false or not."