One developing area of Florida law is whether a public official can be held liable for defamation for statements written by an official on Facebook, Instagram, other social media sites, or a blog. This developing area is important because our sociopolitical climate sees many who like to "play fast and loose" with the truth on Twitter and "call-out" individuals who do not agree with their statements. Two cases, one recent, provide more insight to attorneys.
In Scott Miller v. Douglas Underhill 1, Escambia County Commissioner Douglas Underhill filed a motion for summary judgment arguing immunity protection based on absolute privilege for a defamation action filed by Scott Miller. The defamation action arose from an answer posted by Mr. Underhill on Escambia Citizens Watch's page in response to a question from Mr. Miller. Mr. Underhill stated that Mr. Miller was "well known to be one of the men who polluted Wedgewood with your Rolling Hills dump, which the people are not paying to close becasue [sic] you can't clean up your own mess." The response further stated:
I know, you and Larry Newsome are gonna make a ton of money with the dump, run all them black folks off their land (Larry was allowed to resign instead of get [sic] fired becasue [sic] he was making backdoor offers to those poor people to buy their houses, once the dump made them sick enough they could not fight). Hey @Jim Little and @Coriss Nylander . dig into that one for some eye openners [sic]! If only you could have kept Gene Valentino in office to prevent Lumon from getting a third vote to shut down your Pinestead Longleaf Connector Fantasy.
Mr. Underhill moved for summary judgment, arguing immunity from suit because his response fell within his discretionary duties as a county commissioner. In response, Mr. Miller argued that Mr. Underhill's official duties did not include posting comments on a Facebook page; therefore, the doctrine of absolute immunity was not triggered.
According to Florida common law, statements made by government officials in connection with their official duties are absolutely privileged. These duties are liberally construed and include discretionary duties associated with a position. In order to be protected speech, the statements must also involve an important public function and further the interest of the public. The wrinkle in this case was that the statements made by Mr. Underhill were not made during a county commissioners' meeting, but on a Facebook page. If the statements were made to "traditional media," absolute immunity would be triggered. Mr. Miller argued that because the statements were written by Mr. Underhill on Facebook, Mr. Underhill acted outside of his official duties as a county commissioner.
The court started its analysis by commenting that Mr. Miller could not convincingly argue that Mr. Underhill's representation of his district did not require him to engage with members of the public regarding matters of public importance. The court further explained that Mr. Miller's argument that immunity did not apply because the statement was made on the internet, and not to a traditional journalist, did not have merit. The court essentially explained that the internet was rapidly becoming a part of "traditional journalism." In summary, the court explained, "Denial of immunity in the context of this mutually desired debate, including statements intended to undermine the messenger to attack the message, would relegate the immunity to be so uncertain [as] to chill communication." Accordingly, the trial court granted summary judgment to Mr. Underhill, finding that his statements enjoyed absolute immunity.
Recently, the Third District Court of Appeals in De Castro v. Stoddard 2 was presented with a similar issue. In Stoddard, Orlando Martinez de Castro was the chief of police for the City of South Miami. Philip K. Stoddard was the mayor of the City of South Miami. Mr. de Castro sued Mr. Stoddard for defamation for statements made by Mr. Stoddard about Mr. de Castro in a blog and a letter to public and city residents. The blog posts and letter were critical of Mr. de Castro in his role as the chief of police. Mr. Stoddard moved for summary judgment, arguing that his duties as the mayor included communicating with city residents and the general public about issues that affected the public. The trial court granted summary judgment to Mr. Stoddard and explained that Mr. Stoddard was acting in his capacity as the mayor when he made the statements on his blog and wrote the letter; thus, he had absolute immunity even though the court did not believe Mr. Stoddard's behavior was appropriate. Mr. de Castro appealed the decision.
On appeal, Mr. de Castro argued that Mr. Stoddard did not have absolute immunity because at the time the mayor wrote the statements in the blog and letter, he was a ceremonial mayor and he did not have the authority to hire, fire, or supervise the chief of police. Mr. de Castro relied on Albritton v. Gandy 3 to support his position.
In Albritton, Ms. Gandy ran against Mr. Albritton and four other candidates for a seat on the Escambia County Board of County Commissioners. Ms. Gandy had to resign her position as Director of Emergency Medical Services for Escambia County in order to run for the position. None of the candidates gained a majority of the votes, which triggered a runoff election. Mr. Albritton was part of the runoff, but Ms. Gandy was not.
Following her unsuccessful campaign, Ms. Gandy was hired as a Community Ombudsman at a county hospital. She was employed by a private management firm contracted to operate the hospital. Mr. Albritton asked Ms. Gandy to endorse him for the runoff election in exchange for returning her to her position as Director of Emergency Medical Services. However, Ms. Gandy declined, and she told him that he was a dishonest person, which angered Mr. Albritton.
Mr. Albritton won the runoff election. As a county commissioner, Mr. Albritton did not have the authority to hire or fire county employees. However, he contacted the county administrator and inquired about Ms. Gandy's employment at the hospital. He sought to have Ms. Gandy fired, but he was told that Ms. Gandy was not a county employee and that the county administrator had no authority to fire her. Nevertheless, Mr. Albritton persisted in his efforts to have Ms. Gandy fired, but with no success.
Ms. Gandy next obtained part-time work with the county as a relief emergency medical technician. The county administrator who repeatedly refused Mr. Albritton's efforts to fire Ms. Gandy left his position, and the county (and the county administrator) took operational control over the county hospital where Ms. Gandy worked as a community ombudsman, including the hiring and firing of personnel. Mr. Albritton again tried to have Ms. Gandy fired from her county positions. This time he was successful.
Ms. Gandy sued Mr. Albritton for tortious interference with a business relationship, and Mr. Albritton defended by contending that he had absolute immunity. The case proceeded to trial and the jury returned a verdict in favor of Ms. Gandy. The First District Court of Appeal rejected Mr. Albritton's absolute immunity arguments and explained:
In the instant case, Albritton argues that the statements he made and actions he took regarding Gandy were within the scope of his authority. However, a review of the evidence indicates that this is not true. The statements made by Albritton were not made while Albritton was exercising an official duty. Albritton was not in charge of hiring or firing, and thus, there was no official purpose for Albritton's statements regarding Gandy's county employment.
The court held that Mr. Albritton's actions and statements were not directed to county residents, but they involved private conversations with a county administrator and were single-mindedly targeted to cause the firing of Ms. Gandy. Mr. Albritton did not have supervisory authority over Ms. Gandy, nor any responsibility regarding her performance as a county employee. Basically, Mr. Albritton had no official purpose for his actions or statements other than to have Ms. Gandy fired from county employment.
The Third District Court of Appeal rejected Mr. de Castro's reliance on Albritton. Mayor Stoddard was a voting member of the City Commission and served as its presiding officer. The City Commission was empowered under the City's Charter to conduct investigations into the affairs of the City and the actions of any City department, board, officer, or agency. Further, the hiring or appointment of the chief of police required the consent of a majority of the Commission members. The court held that Mayor Stoddard's blog posts and letter regarding the actions and conduct of Mr. de Castro fell within the scope of his duties as mayor, which included keeping his constituents informed of current events and operations within the City and its government.
Based on the Underhill and Stoddard cases, the courts give wide latitude regarding whether statements made by government officials enjoy absolute immunity from defamation lawsuits. As long as the statements are made by officials of the government in connection with their official duties, the statements are absolutely privileged, even if the statements are made on Facebook, other social media, or a blog. Is this absolute immunity extended too far? Maybe. However, our democracy thrives on public debate. As the court in Underhill stated, a chilling effect on communication may occur if this absolute immunity is limited.
1. No. 2019 CA 931 (Fla. 1st Cir. Ct. October 4, 2019), per curium affirmed, 301 So. 3d 906 (Fla. 1st DCA 2020).
2. 2020 WL 6472544 (Fla. 3d DCA Nov. 4, 2020).
3. 531 So. 2d 381 (Fla. 1st DCA 1988)
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