RAY STEWART, DAVID OWENS, DAVID BERNERT, DAVID FOSTER, IRA GOLDBERG, VANCE WATSON AND JOHN FERGUSON, APPELLANTS,
v.
THE SUN SENTINEL COMPANY, A FLORIDA CORPORATION, SUNBEAM TELEVISION CORP., A FLORIDA CORPORATION, D/B/A WSVN CHANNEL 7, DR. ERWIN VASQUEZ, MARY C. WILLIAMS, OTT CEFKIN, HENRY TEMPLETON, LT. COL. RALPH BATES, JORGE HURTADO, JOHN TURCHIN AND BARBARA WALSH, APPELLEES

Fla. 4th DCA | 1997-02-12
Nos. 95-3303, 96-0102
WARNER, J., and HAZOURI, FREDERICK A., Associate Judge, concur.
695 So. 2d 360 Florida District Court of Appeal, Fourth District (1997) Caution
Cited by 15 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Corrections officers employed by Broward County Sheriff sued media outlets and government officials for defamation arising from publicity about an investigation into jail inmate beatings. The court affirmed dismissals and summary judgments, holding the officers were public officials subject to the actual malice standard and that defendants were protected by fair reporting privilege and absolute immunity for official statements.


Holding

The court held that corrections officers are public officials and thus must prove actual malice to recover for defamation; that media defendants were protected by the fair reporting privilege because their reports were reasonably accurate and fair accounts of official documents; that sheriff's officers and investigating committee members were protected by absolute privilege for statements made in connection with their official duties; and that the attorney was protected by absolute immunity for statements made in a judicial proceeding or necessarily preliminary thereto.


Headnotes

[1] Corrections officers are considered public officials for the purposes of defamation law, requiring proof of actual malice for recovery.

[2] The fair reporting privilege protects the news media in accurately reporting on information received from government officials, even if the information contains errors.

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Key Quotes

“Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized. It is clear, therefore, that the 'public official' designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.”

Establishes the legal standard for determining public official status in defamation cases, requiring substantial responsibility for governmental affairs

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Facts & Procedural History

Seven corrections officers employed by the Broward County Sheriff brought a defamation action against a newspaper (Sun Sentinel), television station (…

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Opinion of the Court
KLEIN, Judge.

KLEIN, Judge.

Appellants, who are plaintiffs in this defamation suit, were employed as corrections officers by the Broward County sheriff. They brought this action as a result of publicity arising out of an investigation into beatings of jail inmates by corrections officers. We consolidate their appeals and affirm the disposition of their claims by dismissal or summary judgment.

The defendant appellees include a newspaper (the Fort Lauderdale Sun Sentinel), a television station (Sunbeam Television Corp.), two newspaper reporters (Williams and Walsh), one television reporter (Tur-chin), three sheriffs officers who gave press releases which were quoted (Bates, Temple-ton, and Cefldn), a member of the sheriffs committee responsible for reviewing policy and procedure violations (Vasquez), and a lawyer representing one of the inmates on a claim (Hurtado).

Plaintiffs first argue that the lower court erred in concluding that, for purposes of defamation, they are public officials and thus can recover only if they prove actual malice under New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Defendants rely on Smith v. Russell, 456 So. 2d 462 (Fla.1984), cert. denied, 470 U.S. 1027, 105 S.Ct. 1392, 84 L.Ed.2d 782 (1985), in which a policeman used excessive force in making an arrest, and the defendant wrote letters complaining about the officer’s conduct. The officer sued the arrestee for defamation, and the Florida Supreme Court concluded that he was a public official, quoting Rosenblatt v. Baer, 383 U.S. 75, 85-86, 86 S.Ct. 669, 675-76, 15 L.Ed.2d 597 (1966):

Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized. It is clear, therefore, that the “public official” designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.

See also St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968) (deputy sheriff is public official).

Plaintiffs argue that because they work only inside correctional facilities, and do not deal with the general public, they are different from police officers. We disagree. In Smith the court characterized the patrolman as a “highly visible representative of government authority who has power over citizens and broad discretion in the exercise of that power.” Id. at 464. The fact that these sheriffs deputies’ powers were exercised in a correctional facility does not, in our opinion, distinguish them from police officers. Corrections officers perform a function with inmates similar to that performed by police officers with the public, and these officers also come into contact with members of the general public who find themselves in a correction facility for one reason or another. The trial court was therefore correct in considering them to be public officials. See also Sweeney v. Prisoners’ Legal Servs. of New York, Inc., 146 A.D.2d 1, 538 N.Y.S.2d 370 (1989) (a corrections officer is indistinguishable from a police officer, and is therefore a public official in a defamation action).

Plaintiffs next argue that the trial court erred in concluding that the newspaper and television station, and their reporters, were protected by the fair reporting privilege, which was explained in Woodard v. Sunbeam Television Corp., 616 So. 2d 501, 502 (Fla. 3d DCA 1993), as follows:

The news media has been given a qualified privilege to accurately report on the information they receive from government officials. This privilege includes the broadcast of the contents “of an official document, as long as their account is reasonably accurate and fair,” even if the official documents contain erroneous information. (citations omitted).

See also Ortega v. Post-Newsweek Stations, Florida, Inc., 510 So. 2d 972 (Fla. 3d DCA), rev. denied, 518 So. 2d 1277 (1987); Restatement (Second) of Torts § 611 (1986). Our comparison of the defamatory information with the official documents or press releases issued by the sheriffs office leads us to conclude that there are no material differences. Accordingly, the trial court was correct in disposing of these claims.

We next address the claims against the sheriffs officers who issued the statements reported in the media. Plaintiffs argue that because the official duties of these defendants do not specifically include issuing press releases, these defendants are not protected by the absolute privilege attaching to statements by public officials incidental to their official duties established in McNayr v. Kelly, 184 So. 2d 428 (Fla.1966).

Plaintiffs’ argument that there must be a specific duty regarding the press is without merit. McNayr only requires, in order for the absolute privilege to attach, that the publication be made “in connection with the performance of the duties and responsibilities” of the defendants’ office. The duties of the sheriffs officers in the present case included administering the corrections and rehabilitation department, exercising operations and administrative control of certain bureau divisions and offices, and implementing organizational changes and review.

In Skoblow v. Ameri-Manage, Inc., 483 So. 2d 809 (Fla. 3d DCA 1986), decision approved, 514 So. 2d 1077 (Fla.1987), plaintiff, who had been discharged from his employment at a state hospital, sued four employees of the hospital because of statements they made about him which were reported in the news. Although only one of the four was the “spokeswoman” for the hospital (she was the community and patient relations director), all of the employees were found to have been protected by the absolute privilege:

In the present case, all the defendants alleged to have defamed the plaintiff either had official supervisory responsibility over the plaintiff or had responsibilities regarding personnel matters or community relations. Since the statements made concerning the plaintiff’s discharge were related to and made within the scope of the defendants’ official duties, we hold that these defendants are entitled to an absolute privilege and are, therefore, immune from liability for the alleged defamation.

Id. at 811. See also Hauser v. Urchisin, 231 So. 2d 6 (Fla.1970). We conclude, under McNayr and Skoblow, that the statements made by the sheriffs officers, as well as by Dr. Vasquez, a member of the committee which investigated, were absolutely privileged.

Plaintiffs’ claim against appellee Hur-tado, a lawyer, arose out of Hurtado’s representation of one of the injured inmates. Hurtado was required by section 768.29, Florida Statutes, to send a notice of claim to the state agencies involved, before he could file suit to recover for his client’s injuries. He gave a copy of the notice of claim to a reporter who published portions of it in a newspaper. Hurtado, as the trial court correctly found, was entitled to the absolute immunity afforded statements made in the course of judicial proceedings, even though the lawsuit had not yet been filed. Ange v. State, 98 Fla. 538, 123 So. 916, 917 (1929) (the privilege extends to statements made in judi cial proceedings as well as those “necessarily preliminary thereto”)1 .

Finally, we have not overlooked appellants’ arguments that their claims should not have been determined on motions to dismiss for failure to state a cause of action or motions for summary judgment. Where the facts are not in dispute in defamation cases, however, pretrial dispositions are “especially appropriate” because of the chilling effect these cases have on freedom of speech. Karp v. Miami Herald Pub. Co., 359 So. 2d 580, 581 (Fla. 3d DCA 1978) (citing Washington Post Co. v. Keogh, 365 F. 2d 965 (1966), cert. denied, 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967)).

Affirmed.

WARNER, J., and HAZOURI, FREDERICK A., Associate Judge, concur. . Ange was receded from, to some extent, in Fridovich v. Fridovich, 598 So. 2d 65 (Fla.1992), in which it was held that there is only a qualified privilege attaching to voluntary defamatory statements made by private individuals to the police or prosecuting attorney prior to the institution of criminal charges. Thus, intentionally false and malicious defamatory statements under those circumstances are not privileged. The notice of claim filed by Hurtado in this case was not voluntary, but rather a necessary step in order to file his client's lawsuit, and has the same absolute privilege as the complaint would have.


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Cited By

  • Cassell v. India, 964 So. 2d 190 (Fla. 4th DCA 2007)
    …lic officials, regardless of the branch of government or the level of the official. See Hauser v. Urchisin, 231 So. 2d 6, 8 (Fla.1970); Stephens, 702 So. 2d at 522. The privilege extends to police officers. Id.; see also Stewart v. Sun Sentinel Co., 695 So. 2d 360, 361 (Fla. 4th DCA 1997). The controlling factor in deciding whether the absolute privilege applies is “whether the communication was within the scope of the officer’s duties.” City of Miami v. Wardlow, 403 So. 2d 414, 416 (Fla.1981). The scope of…
  • Heekin v. CBS Broad., Inc., 789 So. 2d 355 (Fla. 2d DCA 2001)
    …s case, there is nothing in the record to indicate that the trial court compared the broadcast at issue with the public records and found the broadcast to be an accurate description of the records as a matter of law. Cf. Stewart v. Sun Sentinel Co., 695 So. 2d 360 (Fla. 4th DCA 1997) (affirming summary judgment in favor of the press because the trial court compared the publication at issue with the public records and found the publication to be an accurate and fair reflection of the contents of the public rec…
  • Ball v. D'Lites Enters., Inc., 65 So. 3d 637 (Fla. 4th DCA 2011)
    …v. Collmer, 176 S.W. 3d 24 (Tex.App.2004) (attorney who calls press conference prior to filing suit was protected by absolute immunity). [*641] Our court has ruled contrary to the majority rule in one limited context. In Stewart v. Sun Sentinel Co., 695 So. 2d 360 (Fla. 4th DCA 1997), we held that an attorney’s delivery of a copy of a notice of claim to a reporter, which notice was a required filing prior to instituting suit, was protected by absolute immunity. We cited to Ange v. State, 98 Fla. 538, 541, 123…

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