About 10 years ago, I wrote a blog post, “9 Things to Do or Consider Before You File a Lawsuit.” Even though it’s been a decade, all the points made are still just as timely now as they ever were. In this second post of our nine-part series, we delve deeper into understanding possible affirmative defenses.
The Importance of Knowing Possible Affirmative Defenses
Before diving headfirst into litigation, it’s crucial to anticipate affirmative defenses that the opposing party might raise. An affirmative defense is one that admits the plaintiff’s cause of action, but avoids liability, in whole or part, by allegations that excuse or offer legal justification for the action. For example, the affirmative defense of “payment” admits the obligation sued on (i.e., a credit card debt), but avoids liability by alleging that the plaintiff has already been paid.
Understanding what affirmative defenses a defendant may raise not only helps in assessing the strength of your case but also in preparing counterarguments.
Because we practice a lot of defamation, and because defamation has many possible affirmative defenses, let’s explore a few of those defenses: substantial truth, qualified privilege, absolute privilege, and anti-SLAPP statutes.
Substantial Truth
One of the most common defenses in defamation cases is the doctrine of substantial truth. This defense asserts that if a statement does not have to be perfectly accurate, so long as the “gist” or “sting” of the statement is true. It overlooks “minor inaccuracies” and focuses on substantial truth. In this analysis, the statement in question must be read in full context of its publication.
For instance, in the case of Eduardo Quin Iglesias/Real Asset Management v. Norman, the court held that a local TV news station’s reporting about the plaintiff, Eduardo Quin Iglesias, was substantially true. 350 So. 3d 751 (Fla. 4th DCA 2022). WPLG, a South Florida news station, aired a story about Iglesias, who was an entry-level employee at the Florida Department of Business and Professional Regulation. The report detailed Iglesias’s alleged involvement in fraudulent activities. The Court found that, although the reporting contained minor inaccuracies such as the specific details of his role and actions, the core of the story—that Iglesias was involved in questionable activities—was accurate. The court concluded that these minor errors did not change the overall truth of the story, thus applying the substantial truth doctrine to dismiss Iglesias’s defamation claim.
In another example, an organization called the Atheists of Florida, Inc. alleged that its former president, John Kieffer, had misappropriated funds, including two donations totaling $5045. Kieffer v. Atheists of Florida, Inc., 269 So. 3d 656 (Fla. 2d DCA 2019). Kieffer sued for defamation and Atheists of Florida presented the defense of substantial truth. The lower court determined that Mr. Kieffer had “misappropriated some of the Organizations’s funds” and that the “sting” is the same, regardless of how much was misappropriated. On appeal, the Second DCA disagreed with the lower court’s findings and determined that, although the Organization had shown that Mr. Kieffer had converted some of the funds, it did not establish wrongful intent, which was necessary to prove misappropriation. The Second DCA reversed the trial court’s order and sent the case back to the lower court. The Kieffer case is a good example to show that determination of a “substantial truth” defense is usually not an easy, black-and-white decision.
In a third case, Wayne Smith, a professor at Johns Hopkins University, made a statement during an interview given for a PBS documentary titled Campaign for Cuba, which dealt with the anti-Castro movement in the Cuban–American exile community and looked at the political influence of groups such as the Cuban American Foundation (CAF). During the interview, Smith commented on the financial dealings of CAF, implying a misuse of funds. CAF sued for defamation, but the court found that Smith’s statements, though not perfectly accurate, did not create a different impression than the truth would have. The substantial truth defense held because the core message—involving questionable financial activities—was accurate. Smith v. Cuban American National Foundation, 731 So. 2d 702 (Fla. 3d DCA 1999).
Qualified Privilege
Qualified privilege protects certain statements made in good faith on matters where the person making the statement has an interest or a duty to communicate it, and the recipient has a corresponding interest or duty to receive it. Courts may recognize a qualified privilege in cases involving: (1) mutuality of interest in the statement between the speaker and listener; (2) statements made to an employer regarding the job performance of an employee; and (3) expressions of fair comment and criticism on any public, governmental, political, social or cultural matter, which are protected under the First Amendment.
This affirmative defense was raised in a 2004 case filed by two Legg Mason executives after an internal memorandum had noted that they had a “history of restructurings, write-offs, bankruptcies, falling stock prices, dubious inter-family business transactions, and extremely generous salaries coming out of marginal or failing public entities.” The executives sued for defamation, arguing that the statements in the memorandum had damaged their reputations. The company moved for summary judgment based on the affirmative defense of qualified privilege, but the Court denied it, as the statements had been disseminated too broadly to show that an informal business relationship existed between it and all its recipients.
Anti-SLAPP Statutes
Strategic Lawsuits Against Public Participation (SLAPP) are lawsuits intended to censor, intimidate, and silence critics by burdening them with legal costs. Florida’s anti-SLAPP statute, under Florida Statutes § 768.295, is designed to prevent such lawsuits that are “without merit” and protect individuals’ rights to free speech and to petition the government.
In Gundel v. AV Homes, Inc., the court highlighted the burden-shifting mechanism under the anti-SLAPP statute. The initial burden is on the defendant to show a prima facie case that the statute applies, shifting the burden to the plaintiff to demonstrate that their claim is not primarily based on the defendant’s exercise of First Amendment rights and is not without merit. In Gundel, residents of a community, including Norman Gundel, were sued by AV Homes for allegedly making defamatory statements about the development company. The court found that the residents’ statements, made during public meetings and online discussions about the development, were protected, as they were related to matters of public interest Gundel v. AV Homes, Inc., 264 So. 3d 304 (Fla. 2d DCA 2019).
In another case, a charter school brought an action against a parent, Baird, for tortious interference. The parent filed a motion to dismiss under the anti-SLAPP statute, arguing that the lawsuit was intended to silence her criticism of the school’s policies. The court found that the school’s claims were not primarily based on the parent’s exercise of free speech rights and were not without merit, thus denying the motion to dismiss under the anti-SLAPP statute. Baird v. Mason Classical Academy, Inc., 317 So. 3d 264 (Fla. 2d DCA 2021).
Conclusion
These are just a few of many defenses that can be raised in defamation cases. Understanding what defenses might be raised against your claims is a fundamental step in preparing for litigation because these defenses can significantly impact the outcome of a lawsuit. By anticipating these defenses and preparing accordingly, you can better navigate the complexities of the legal process.
Stay tuned for the next post in this series, where we will delve into the importance of collecting evidence. If you need assistance in evaluating potential defenses or preparing for litigation or defending a lawsuit, contact our office at 407-965-5519; we’re here to help guide you through the complexities of the legal system.
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