ANNE McQUEEN, Appellant, v. CAROLE BASKIN, Appellee.
No. 2D22-1482
DISTRICT COURT OF APPEAL OF FLORIDA, SECOND DISTRICT
November 17, 2023
Allison Morat and Ronnie Bitman of Bitman, O‘Brien & Morat, PLLC, Lake Mary; John M. Phillips and Amy M. Hanna of Phillips & Hunt, Jacksonville, for Appellant.
Shane B. Vogt and Kenneth G. Turkel of Turkel, Cuva, Barrios, P.A., Tampa; David M. Caldevilla of de la Parte, Gilbert, McNamara & Caldevilla, P.A., Tampa; Craig E. Rothburd of Craig E. Rothburd, P.A., Tampa; and Charles M. Harris of Trenam Law, Saint Petersburg, for Appellee.
LUCAS, Judge.
A sanctuary for lions and tigers, the unexplained disappearance of one of its owners, and competing allegations of embezzlement, double-dealing, and betrayal have spawned a defamation lawsuit. Near the outset of the litigation, the circuit court curtailed discovery and entered a final judgment in favor of the defendant. For the reasons that follow, we reverse.
I.
In the 1990s Carole Baskin and her then-husband “Don” Lewis operated Wildlife on EasyStreet, a big cat sanctuary, an enterprise which would later become known as Big Cat Rescue.1 Anne McQueen was employed as Mr. Lewis’ personal assistant.
In August 1997, Mr. Lewis disappeared. His whereabouts, or whether he is still alive, remains unknown to this day.
Baskin was also obligated to issue a written apology to Ms. McQueen,2 which, in pertinent part, read: “I, Carole Lewis, apologize to Anne McQueen for all the allegations that I have made about Anne McQueen. . . . I have found that the allegations made were without full knowledge of the facts, which I now know are unfounded.”
Unfortunately, neither the settlement nor the apology ended the acrimony.
Events took a turn in 2020 when Netflix aired a television series entitled, “Tiger King: Murder, Mayhem and Madness.” The subject matter of the series was apparently as sensational as its title, and although it centered on a supposed rival of Big Cat Rescue (a gentleman who went by the monikers “Joe Exotic” and “The Tiger King“), some episodes featured discussions about Mr. Lewis’ disappearance. One episode in particular included footage of interviews with Ms. McQueen, which, Ms. Baskin maintains, “proliferated false and baseless rumors that Baskin killed Lewis and disposed of his remains in various horrific ways.” While the show was airing, Ms. McQueen also appeared in a YouTube3 interview with “Ripper Jack Media,” in which she discussed Mr. Lewis’ disappearance.
In the aftermath of Tiger King, Ms. Baskin maintains that “enormous public discussion” ensued concerning her purported involvement in Mr. Lewis’ disappearance. She complains that she, her current husband, and Big Cat Rescue “became the target of vicious online attacks.”
Ms. Baskin, however, had apparently anticipated that she might receive some less than favorable coverage in Tiger King. So, in February 2020, prior to the show‘s release, she began publishing her own rendition about the events that would later be depicted in Tiger King on her YouTube “vlog” (hereafter, the Baskin Vlog).4 In her vlog, Ms. Baskin read aloud a number of entries in her personal diary, some of which were decades old. Although at points in the Baskin Vlog‘s postings Ms. Baskin acknowledges that her recollections
Over a period of time, Ms. Baskin made the following assertions in the Baskin Vlog5:
“Turns out he [Mr. Lewis] had already had Anne McQueen forge my name on the closing documents and then she notarized it.”
“Spent the day in our real estate office quizzing Anne McQueen about the title search I did on her showing 500,000.00 + of our properties titled in her maiden name. This had all been done in just the past few months. I asked for the alarm code and a set of keys (ours were with Don) and I had never had to open the office before. . . . When I asked for a set of keys, Anne was suddenly very sick with a headache and had to go home. Since she claims she was the only person with a set of keys and the code, everyone would have to leave so she could lock up. [I] knew something was up then. She said she had to rest, but that she would make me a set later that night and bring them to me in the morning. She gave me a bogus alarm code.”
“I have gone easy on her [Ms. McQueen] because I have not been sure how much of her transferring was done as theft and how much Don may have known about, but for her to step in and lie about something that we both know the truth about and her attempt to destroy my original documents by sneaking them out of the office in a box of her tax papers. I can see no reason to protect her any longer. Can she be arrested for embezzling and can your firm represent me in the ensuing lawsuit? The proof is overwhelming.”
“Anne McQueen was feeding people nothing but lies, it‘s suspicious Anne is the beneficiary of such a huge life insurance policy, and Anne and others are sure Don isn‘t coming back.”
“The return of the 80,000.00 that Anne McQueen has wrongfully diverted from the Conservatorship to her own Attorney‘s bank account.”
“That is why I want to see Anne in jail for embezzlement. She and Wendell may have gotten away with doing harm to Don but they haven‘t escaped all of their treacherous deeds. I want what little justice Don and I may ever see from this whole ordeal.”
Ms. McQueen was “spiriting documents away” to attempt to hide “all of the stuff that was going on with Anne putting stuff
into her name and Wendell‘s name and housekeeper‘s names and all kinds of stuff.”
“Part of the embezzlement I discovered was that Anne would take money from our checking account to buy those tax certificates in her maiden name so that she could control if the properties were sold to pay her lien.”
Over roughly the same time period as she was vlogging, Ms. Baskin is also alleged to have posted the following statements on Big Cat Rescue‘s website:
In 1997 when I lost my Husband, I discovered that one of our secretaries had embezzled hundreds of thousands of dollars and made herself the beneficiary and executor of his will.
In August 2020, Ms. McQueen and members of Mr. Lewis’ family filed a complaint seeking a pure bill of discovery as to several defendants, an action which, after a few amendments, evolved into a civil claim for monetary damages brought solely by Ms. McQueen against Ms. Baskin as the sole defendant. That complaint asserts claims for defamation (under three different theories).6
On July 9, 2021, Ms. Baskin filed a verified “Motion to Dismiss and/or for Summary Judgment on Second Amended Complaint and for Attorney‘s Fees and Costs Under Florida‘s Anti-SLAPP Statute” in response to the complaint. In her motion, Ms. Baskin maintained that
Ms. McQueen‘s complaint amounted to a prohibited SLAPP lawsuit7 under
Furthermore, Ms. Baskin argued that her vlog and website posts fell under the protection of
Before Ms. McQueen could obtain discovery or depose Ms. Baskin, the circuit court stayed discovery. The court‘s stay order indicated that it would first hear and decide Ms. Baskin‘s motion. Both sides filed memoranda, and on October 6, 2021, the court heard the motion to dismiss/motion for summary judgment.
On April 6, 2022, the court issued an order and final judgment against Ms. McQueen. Pertinent to our resolution of this appeal, the circuit court concluded that (1) Ms. Baskin was a “media defendant” so that the statements on her vlog and website were protected under
This is Ms. McQueen‘s timely appeal.
II.
It is not entirely clear which procedural mechanism, a motion to dismiss under
the circuit court‘s findings throughout its order and judgment. This is likely due to the manner Ms. Baskin presented her legal arguments (as a single, unitary motion that asserted both rules without delineating which arguments were for dismissal and which were for summary judgment) as well as the expedience the circuit court felt was required under the Anti-SLAPP statute. But regardless of which parts of the order and judgment came about as a dismissal with prejudice or as a final summary judgment, our review would be the same: de novo. See Desch v. S. Fork of Hillsborough Cnty. II Homeowner‘s Ass‘n, 364 So. 3d 1064, 1067 (Fla. 2d DCA 2023) (“We conduct a de novo review of a trial court‘s ruling that grants summary judgment.“); Ellerson v. Moriarty, 331 So. 3d 767, 769 (Fla. 2d DCA 2021) (“We review an order of dismissal with prejudice de novo.“).
III.
Our analysis will proceed in the order we deem to be the appropriate approach for resolving the somewhat intertwined legal issues presented below: first, we address whether the alleged statements published in the Baskin Vlog and on Big Cat Rescue‘s website were defamatory—and, hence, potentially actionable—under Florida law. Then, we will discuss whether Ms. Baskin was a “media defendant” entitled to statutory notice (and an opportunity for retraction or correction) of those statements.
A.
Florida‘s Anti-SLAPP statute protects the right in Florida to exercise the rights of free speech in connection with public issues, and the rights to peacefully assemble, instruct representatives, and petition for redress of grievances before the various governmental entities of this state as protected by the First Amendment to the United States Constitution and
Actionable defamation, however, is not constitutionally protected speech. See Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942) (“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words . . . .” (footnote omitted)); Internet Sols. Corp. v. Marshall, 39 So. 3d 1201, 1215 (Fla. 2010) (“As explained by the U.S. Supreme Court, ‘the potential chill on protected First Amendment activity stemming from libel and defamation actions is already taken into account in the constitutional
limitations on the substantive law governing such suits.’ ” (quoting Calder v. Jones, 465 U.S. 783, 790 (1984))); Fox v. Hamptons at Metrowest Condo. Ass‘n, 223 So. 3d 453, 457 (Fla. 5th DCA 2017) (“Freedom of speech does not extend to obscenity, defamation, fraud, incitement, true threats, and speech integral to criminal conduct.” (citing United States v. Cassidy, 814 F. Supp. 2d 574, 582-83 (D. Md. 2011))). The first question to resolve, then, is whether Ms. Baskin‘s published statements could support a defamation claim.
In Florida, a defamation claim comprises five elements: (1) publication, (2) of a false statement, (3) with knowledge or reckless disregard as to the falsity (for public figures) or negligence (for private figures), (4) which causes actual damages, and (5) is “defamatory.” See Kieffer v. Atheists of Fla., Inc., 269 So. 3d 656, 659 (Fla. 2d DCA 2019) (quoting Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008)). The Fourth District explained that a “communication is ‘defamatory’ if it tends to harm the reputation of another as to lower him or her in estimation of community or deter third persons from associating or dealing with the defamed party.” See Mile Marker, Inc. v. Petersen Publ‘g, L.L.C., 811 So. 2d 841, 845 (Fla. 4th DCA 2002).
In the case at bar, the circuit court focused predominantly on the last element,10 concluding that Ms. Baskin‘s published
not defamatory as a matter of law. In its judgment, the circuit court viewed all the statements, collectively, as “mental impressions, opinions or commentary” that “[t]he common viewer or reader would understand . . . were one-sided responses to the events that occurred decades ago but were reinvigorated by the Tiger King series.” We cannot agree with that assessment.
Whether a published statement is a protected expression of pure opinion versus an actionable expression of fact or mixed opinion and fact poses a question of law. See E. Air Lines, Inc. v. Gellert, 438 So. 2d 923, 927 (Fla. 3d DCA 1983) (“It is the court‘s function to determine from the context ‘whether an expression of opinion is capable of bearing a defamatory meaning because it may reasonably be understood to imply the assertion of undisclosed facts that justify the expressed opinion about the plaintiff or his conduct.’ ” (quoting Restatement (Second) of Torts § 566 cmt. c (Am. L. Inst. 1977))); Colodny v. Iverson, Yoakum, Papiano & Hatch, 936 F. Supp. 917, 923 (M.D. Fla. 1996) (citing Fla. Med. Ctr., Inc. v. N.Y. Post Co., 568 So. 2d 454, 457 (Fla. 4th DCA 1990)).11 From our de novo review, we conclude that several of the
recorded statements published in the Baskin Vlog and on the Big Cat Rescue website were factual assertions of past events. Indeed, it is hard to construe Ms. Baskin‘s alleged assertions that Ms. McQueen forged and notarized closing documents, lied about and attempted to hide the transfer of properties from Ms. Baskin (which, Ms. Baskin bluntly claimed was “theft“), attempted to destroy original documents, “spirited” other documents away, “wrongfully diverted” money into her attorney‘s bank account, and embezzled funds as anything other than assertions of fact. The character of these statements, if they are false, would be quintessentially defamatory. See, e.g., Blake v. Giustibelli, 182 So. 3d 881, 884 (Fla. 4th DCA 2016) (“[A] publication is libelous per se, or actionable per se [against a nonmedia defendant], if, when considered alone without innuendo: (1) it charges that a person has committed an infamous crime; (2) it charges a person with having an infectious disease; (3) it tends to subject one to hatred, distrust, ridicule, contempt, or disgrace; or (4) it tends to injure one in his trade or profession.” (first alteration in original) (quoting Richard v. Gray, 62 So. 2d 597, 598 (Fla. 1953))); Lipsig v. Ramlawi, 760 So. 2d 170, 182, 185 (Fla. 3d DCA 2000) (affirming slander counterclaim verdict where partnership‘s attorney referred to former partner as a “thief” who had mismanaged the partnership‘s businesses as such statements did not constitute mere opinion, and noting that “Amin clearly imputed to Ramlawi conduct incompatible with the proper exercise of his business, and accordingly this accusation was slanderous per se” (first citing Teare v. Local Union No. 295, 98 So. 2d 79, 82 (Fla. 1957); and then citing Scholz v. RDV Sports, Inc., 710 So. 2d 618, 625 (Fla. 5th DCA 1998))) debate on public issues. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
; Axelrod v. Califano, 357 So. 2d 1048, 1050 (Fla. 1st DCA 1978) (statements that a former employee was a thief and a forger were actionable per se).
Besides the nature of the statements themselves, Ms. Baskin employed a contemporaneously recorded diary in her vlog as a seeming aid to her recollection of past factual events. And although Ms. Baskin may have offered a qualification about the nature of her vlog and couched certain parts as her personal opinion, actionable defamatory statements do not become nondefamatory when, as here, the context of the statements swallows up the caveats. See Milkovich v. Lorain J. Co., 497 U.S. 1, 18-19 (1990) (“Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications; and the statement, ‘In my opinion Jones is a liar,’ can cause as much damage to reputation as the statement, ‘Jones is a liar.’ “); Lipsig, 760 So. 2d at 184 (“However, a speaker cannot invoke a ‘pure opinion’ defense, if the facts underlying the opinion are false or inaccurately presented.“); see also Jews for Jesus, 997 So. 2d at 1108 (“[W]hile defamation law shields publishers from liability for minor factual inaccuracies, ‘it also works in reverse, to impose liability upon the defendant who has the details right but the “gist” wrong.’ ” (quoting W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 116, at 117 (5th ed. Supp. 1988))). Nor can we ignore that Ms. Baskin had previously issued a written apology to Ms. McQueen for her “unfounded” allegations which she had made “without full knowledge of the facts.”
Finally, we must note that the circuit court‘s conclusion that Ms. Baskin‘s published statements were mere opinion, hyperbole, or mental impressions is somewhat incongruous with the court‘s conclusion elsewhere that Ms. Baskin was a “media defendant” who “regularly posts information” and “shares information that is of public interest.” We will turn to that point in a moment, but for now, it suffices to observe that the media defense under
In sum, we conclude that Ms. McQueen‘s complaint included allegations of statements of fact and that those statements, if proven, could be defamatory as a matter of law. As such, the statements were not protected speech under the Anti-SLAPP statute.
B.
That, however, does not end our inquiry. Ms. Baskin contends she should be considered a “media defendant” entitled to the statutory protections of
We look first to the text of the statute Ms. Baskin invokes.
Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or
slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory.
In conjunction with
(1) If it appears upon the trial that said article or broadcast was published in good faith; that its falsity was due to an honest mistake of the facts; that there were reasonable grounds for believing that the statements in said article or broadcast were true; and that, within the period of time specified in subsection (2), a full and fair correction, apology, or retraction was, in the case of a newspaper or periodical, published in the same editions or corresponding issues of the newspaper or periodical in which said article appeared and in as conspicuous place and type as said original article or, in the case of a broadcast, the correction, apology, or retraction was broadcast at a comparable time, then the plaintiff in such case shall recover only actual damages.
(2) Full and fair correction, apology, or retraction shall be made:
(a) In the case of a broadcast or a daily or weekly newspaper or periodical, within 10 days after service of notice;
(b) In the case of a newspaper or periodical published semimonthly, within 20 days after service of notice;
(c) In the case of a newspaper or periodical published monthly, within 45 days after service of notice; and
(d) In the case of a newspaper or periodical published less frequently than monthly, in the next issue, provided notice is served no later than 45 days prior to such publication.
Ms. Baskin believes her vlog and website posts constitute “other medium” for purposes of the statute, such that she‘s entitled to the protections of these sections. She is mistaken.
We explained the construction of “other medium” at some length in Mazur v. Ospina Baraya, 275 So. 3d 812, 815-16 (Fla. 2d DCA 2019). In Mazur, a plaintiff sued Penguin Random House, Hachette Book Group,
movie production companies, and affiliated individuals. Id. at 814. The plaintiff alleged he was defamed by his portrayal as a money launderer and “integral member” of Pablo Escobar‘s criminal organization in the book The Infiltrator and the movie based on that book. Id. The defendants moved to dismiss the complaint, arguing that the plaintiff failed to comply with the presuit conditions of
On certiorari review, we summarized how to construe these statutes:
Sections 770.01 and 770.02 work together “to afford newspapers and periodicals an opportunity to make full retraction in order to correct inadvertent errors and mitigate damages, as well as to save them the expense of answering to an unfounded suit for libel.” Bridges, 449 So. 2d at 401 (citing Ross, 48 So. 2d 412).
Considering that the purpose behind
section 770.01 is to protect the free press, Florida courts have interpreted the statute‘s “other medium” language to be limited to news media defendants who publish statements via an “other medium.” To determine whether a defendant‘s publication falls “within the purview of the prescribed ‘other medium’ entitled to presuit notice, we look to the Ross decision to determine whether the [defendant‘s publication] is operated to further the free dissemination of information or disinterested and neutralcommentary or editorializing as to matters of public interest.” Comins v. Vanvoorhis, 135 So. 3d 545, 557 (Fla. 5th DCA 2014). “In defining the term ‘media defendant,’ courts have considered whether the defendant engages in the traditional function of the news media, which is ‘to initiate uninhibited, robust, and wide-open debate on public issues.’ ” Tobinick v. Novella, No. 9:14-CV-80781, 2015 WL 1191267, at *8 (S.D. Fla. March 16, 2015) (quoting Ortega Trujillo v. Banco Cent. Del Ecuador, 17 F. Supp. 2d 1334, 1338 (S.D. Fla. 1998)). So even though the “other medium” language expanded section 770.01 to cover new technologies used to disseminate the news, such as internet publishers and blogs, it did not expand the reach of the statute beyond the news
media. See, e.g., Plant Food Sys., Inc. v. Irey, 165 So. 3d 859, 861 (Fla. 5th DCA 2015) (holding that “an internet publisher of various purportedly scientific, technical, and medical journals and information” was covered by
This interpretation is confirmed by applying canons of statutory construction to the language of
Moreover, the doctrine of in pari materia “requires courts to construe statutes that relate to the same subject matter together to harmonize those statutes and give effect to legislative intent.” Anderson v. State, 87 So. 3d 774, 777 (Fla. 2012). As explained in Ross, the notice provided for in
Id. at 817-18. Applying these principles, the Mazur court concluded that neither the book nor movie company defendants were entitled to the protections of
If a movie and a nonfiction book about an alleged drug cartel insider do not constitute “other medium” under
Ms. Baskin makes much of the fact that posting digital content online does not, in and of itself, render her a private, nonmedia defendant. In other words, media defendants are not limited to those who work in print media. True enough. But in this day and age, that‘s no longer a point in need of proving. See Five for Ent., 877 F. Supp. 2d at 1327 (“Whether the phrase ‘other medium’ in
It is true the landscape of news publication has drastically changed. There has been a great democratization in how the written word can be published, a change some have likened to the one wrought by the invention of the Gutenberg press. See generally Russell L. Weaver, Free Speech in an Internet Era, 58 U. Louisville L. Rev. 325, 329-
30 (2020) (“The communications revolution sparked by the internet has been as transformational as the revolution sparked by Gutenberg‘s invention of the printing press.“). But we also addressed that facet of the changing times in Mazur when we remarked:
[A]s technology develops and society‘s media consumption changes, becoming increasingly geared toward instantaneous access, the line between traditional news media and other forms of media may become blurred. Many people get their news via Facebook, YouTube, Twitter, Instagram, LinkedIn, or Reddit. Podcasts have boomed in popularity, and many cover current events. Shows and movies—many of which are documentaries, docuseries, or based on true stories—can be streamed on services such as Netflix, Amazon Prime Video, and Hulu. These technological developments may also make it easier to issue corrections and retractions that actually reach the intended audience. Apps can send push notifications with corrections or retractions straight to users’ smart phones. Corrections and retractions can be posted to and shared widely on social media.
Mazur, 275 So. 3d at 818-19 (footnotes omitted).
Changing times do not alter statutory text; amendments do. As we said in Mazur, 275 So. 3d at 819: “Whether the presuit notice protection under
IV.
Because the complaint included allegations that could, if proven, constitute defamation and Ms. Baskin was not a media defendant, we reverse the circuit court‘s judgment except as to the one count that has not been challenged, which we affirm without comment. We remand for further proceedings consistent with this opinion.
Affirmed in part; reversed in part; remanded.
CASANUEVA and ROTHSTEIN-YOUAKIM, JJ., Concur.
Opinion subject to revision prior to official publication.
Notes
We would observe that the motion before the court was something of a hybrid between a motion to dismiss and a motion for summary judgment. And the circuit court stayed discovery before the parties could develop much of a factual record. Our resolution of the three preliminary issues we‘ve identified, and our remand to the court to allow this case to develop further, will necessarily require the circuit court to reexamine all these conclusions should these issues arise again.
Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society‘s interest in “uninhibited, robust, and wide-open”