On May 29, 2019, a Florida judge granted Waterman Broadcasting Corp. (“Waterman”) and reporter David Hodges’ (“Hodges”) motions for summary judgment against former State Attorney Stephen B. Russell, a public official, in a defamation action arising out of their news report referencing a U.S. Department of Justice report that concluded State Attorney Russell’s policies contributed to the lack of homicide prosecutions in Fort Myers.
Gregg D. Thomas and Jon M. Philipson, attorneys from Thomas & LoCicero, represented reporter David Hodges in this defamation action.
After seven months of investigation and analysis, reporter David Hodges and Waterman Broadcasting Corp., relying on a U.S. Department of Justice report, other public and judicial records, and the statements of community leaders and law enforcement, published and broadcasted on November 17, 2016 a news report on the high rate of unsolved homicides within the city of Fort Myers and Lee County and whether State Attorney Russell’s office should shoulder some of the responsibility because of his prosecution policies. Specifically, the report addressed whether State Attorney Russell would only authorize arrest warrants for cases that have been prove beyond a reasonable doubt, versus the lesser standard of probable cause. In the broadcast, Hodges interviewed Russell about the accusations within the community and Russell’s overall prosecution policies.
State Attorney Russell claimed the news report was defamatory and that but for the broadcast he would have run for re-election and won another term as state attorney. The focus of Russell’s claim was the introduction to the broadcast and its conclusion:
- “Serious accusations tonight against the Local State Attorney. A new report finds
he should shoulder the blame for the number of violent crimes that actually end
up in front of a jury. A Department of Justice report on the homicide rate in the
City points the blame at Steve Russell—saying his policies are keeping murderers
on the streets.”
b. A statement directing viewers to the station’s website for “a truly unprecedented
look at what happens to homicide suspects in our area.”
On March 14, 2019, Defendants separately moved for summary judgment, arguing that these statements were protected by the fair report privilege, were substantially true, were not defamatory, and were not made with actual malice.
On May 2, 2019, the Honorable Charles E. Williams held a lengthy hearing on the motions for summary judgment.
On May 29, 2019, the Court granted summary judgment for the Waterman and Hodges, citing three fundamental reasons:
First, Judge Williams found that “[n]othing in the broadcast amount[ed] to a defamatory statement of fact” and that the “‘gist’ of the broadcast was that the report mentioned criticisms against Plaintiff,” a public official. Further, the Court held that the context of the broadcast, when viewed in its entirety, was that the DOJ Report “cited stakeholder’ s beliefs that Plaintiff would not authorize arrest warrants in murder cases unless that case could be proven beyond a reasonable doubt, rather than the probable cause standard for arrests,” which was an accurate statement of what the DOJ Report said.
Second, the Court found that at summary judgment, Plaintiff, as a public official, failed to carry his burden “to present record evidence sufficient to satisfy the court that a genuine issue of material fact exists which would allow a jury to find by clear and convincing evidence the existence of actual malice on the part of the defendant[s].” In short, the Court concluded, “Bias or negative comments, or failure to fully verify, do not constitute actual malice.”
Third, the Court found that although news report was slanted, it did not render the statements false. The Court explained that Florida’s fair report privilege is broad and that the fair and accurate bar is a low standard, and that the media defendants could add color to their broadcasts. Further, the Court noted that the statements in the broadcast were not substantially and materially false.
Based on these findings, the Court granted summary judgment for Waterman and Hodges.
David Hodges was represented by Gregg D. Thomas and Jon M. Philipson of Thomas & LoCicero PL.
With offices in Tampa and Fort Lauderdale, Thomas & LoCicero is a Florida law firm that is widely known and respected for its commitment to free speech and a free press. The firm represents the industry’s leading electronic and traditional publishers, as well as individual journalists, bloggers and influencers of social media on issues ranging from news gathering to invasion of privacy, from defamation to pre-publication review. At the heart of the firm’s mission is to champion free speech and defend journalism every day.