On June 8, 2017, Eugene Weiner made a post on Isaac Aflalos Facebook page. The post read,


On June 8, 2017, Eugene Weiner made a post on Isaac Aflalo’s Facebook page. The post read, “Yurim and Isaac took advantage of a old 94plus sick man elder abuse [sic].” Alflalo took umbrage to the post and filed a suit against Weiner, alleging that Weiner’s post constitutes defamation per se. Specifically, Alflalo alleged that the post constituted defamation per se because it charged him with the commission of an infamous crime and subjected him to hatred, distrust, ridicule, or contempt. Weiner filed a motion to dismiss the case.
JUDGE MORENO Defendant argues that Plaintiff has failed to state a claim for defamation per se. Under Florida law, to assert a claim for defamation—libel or slander—a plaintiff must establish that: “(1) the defendant published a false statement; (2) about the plaintiff; (3) to a third party; and (4) that the falsity of the statement caused injury to another.” Alan v. Wells Fargo Bank, N.A., 604 Fed. App’x 863, 865 (11th Cir. 2015) (applying Florida law) … To allege a claim for libel per se, however, the plaintiff need not show any special damages because per se defamatory statements are “so obviously defamatory and damaging to [one’s] reputation that they give rise to an absolute presumption both of malice and damage.” Id. (internal quotations omitted) (citing Wolfson v. Kirk, 273 So. 2d 774, 776 (Fla. 4th DCA 1973)). In this case, Plaintiff is only alleging a claim of libel per se.
A written publication (like a Facebook post) rises to the level of libel per se “if, when considered alone and without innuendo, it (1) charges that a person has committed an infamous crime; (2) tends to subject one to hatred, distrust, ridicule, contempt, or disgrace; or (3) tends to injure one in his trade or profession.” Id.
(quoting Richard v. Gray, 62 So. 2d 597, 598 … Plaintiff alleges that the Statement qualifies as defamation per se on two of the three grounds—it imputes Plaintiff with the commission of an infamous crime and it subjects him to hatred, distrust, ridicule, or contempt. But Defendant argues that Plaintiff’s claim fails because (1) the Statement fails to charge Plaintiff with committing an infamous crime; (2) the Statement does not subject Plaintiff to public hatred, contempt, or ridicule; (3) the Statement is rhetorical hyperbole; and (4) Plaintiff has failed to plead with reasonable particularity any third party to whom the Statement was made. In response, Plaintiff argues that the Statement is, at the very least, ambiguous and the question of whether it is defamatory per se should be left for the jury.
The subject Statement reads: “Yurim and Isaac took advantage of a old 94plus sick man elder abuse [sic].” Because the Statement uses the phrase “elder abuse,” Plaintiff alleges that Defendant is imputing Plaintiff with “having committed an act which constitutes the infamous crime of elder abuse under Chapter 825 of the Florida Statutes.” (D.E. 18, ¶ 18.) Crimes characterized as having an infamous nature are “murder, perjury, piracy, forgery, larceny, robbery, arson, sodomy or buggery.” Klayman v. Judicial Watch, Inc., 22 F. Supp. 3d 1240, n.3 (S.D. Fla. 2014). However, if an offense does not fall into one of these categories, only a felony is considered an infamous crime. Id.; Madsen v. Buie, 454 So. 2d 727, 729-30 (Fla. 1st DCA 1984) (“Under Florida law, a publication is libelous per se when it imputes to another a criminal offense amounting to a felony. …”) (citation omitted). In Florida, “elder abuse,” as defined under Chapter 825 of the Florida Statutes, is categorized as a felony.
… Here, as in Klayman, nothing in the Statement supports the conclusion that use of the phrase “elder abuse” amounts to an accusation of a felony. See also McCormick v. Miami Herald Publ’g Co., 139 So. 2d 197 (Fla. 2d DCA 1962) (holding that allegedly defamatory language “should not be interpreted by extremes but should be construed as the common mind would naturally understand it”). As such, when reading the Statement, alone and without innuendo, this Court finds that it does not impute to Plaintiff the crime of elder abuse as defined under Chapter 825 of the Florida Statutes, and therefore it does not qualify as defamation per se under the first ground.
Plaintiff also alleges that the Statement rises to the level of defamation per se under the second ground. Plaintiff relies on the court’s analysis in Caldwell v.
Cromwell-Collier Pub. Co., …, to argue that even if the Statement does not impute an infamous crime, it subjects him to “hatred, distrust, ridicule, contempt or disgrace” … Caldwell is inapplicable to this case for two reasons. First, just because Caldwell suggests that if a statement fails under prong one then it can succeed under prong two, does not mean that it must or that it will. As here, it does not. Second, the statement and facts surrounding it in Caldwell are distinguishable from the Statement in this case. Whereas in Caldwell a widely-circulated newspaper published damaging statements about a sitting governor, here the Defendant wrote a grammatically flawed and incoherent post on his Facebook wall about Plaintiff, a distant relative. Plaintiff has failed to convincingly plead that the Statement, or the circumstances surrounding it (i.e., the parties involved, the medium chosen, the words used), engender the type of hatred, distrust, ridicule, contempt or disgrace that is required to succeed under this prong.

In its reasoning, the court rejected the analogy the plaintiff made to the Caldwell analogy. Can you make an argument to refute the court’s critique of that analogy?

Which set of stakeholders would you weigh the heaviest in deciding a case of this type? Why would you raise their interests above those of other relevant parties?

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Dynamic Business Law

ISBN: 9781260733976

6th Edition

Authors: Nancy Kubasek, M. Neil Browne, Daniel Herron, Lucien Dhooge, Linda Barkacs

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