Third District Court of Appeal
State of Florida
Opinion filed April 14, 2021.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D20-340
Lower Tribunal No. 17-13336
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Eric Readon,
Appellant,
vs.
WPLG, LLC, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Alexander
Bokor, Judge.
Andrew M. Kassier, P.A., and Andrew M. Kassier, for appellant.
Mitrani, Rynor, Adamsky & Toland, P.A., and Karen Kammer, for
appellees.
Before FERNANDEZ, LOGUE, and GORDO, JJ.
LOGUE, J.
Eric Readon appeals the trial court’s dismissal of his third amended
complaint with prejudice against defendants WPLG, Inc. (successor in
interest to WPLG, LLC), BH Media Group, Inc., Jeff Weinsier, Steve Owen,
and Bill Pohovey (collectively, “WPLG”). Readon’s complaint alleges
defamation and defamation by implication against WPLG for reporting on
certain business dealings between Readon and members of the public.
Because Readon failed to allege any false statement that would affect the
gist of the reports, actual malice in WPLG’s reporting, or a defamatory
implication, we affirm the trial court’s order of dismissal.
Factual Background
The facts we must accept as true are contained within Readon’s third
amended complaint, the operative complaint for purposes of this appeal.
Readon’s allegations stem from three news reports broadcast by WPLG in
2017 and their corresponding internet articles.
Readon is a pastor and public figure. Because he is not paid for his
ministerial service, Readon makes a living through business dealings
including property management and real estate swaps. Several of Readon’s
previous business contacts, including some family members and friends,
sued Readon in relation to these business activities.
2
According to the complaint, WPLG first learned of these lawsuits from
an informant with a working relationship with WPLG and its employees. The
informant advised WPLG of several lawsuits filed against Readon and
WPLG subsequently confirmed their existence through a public records
search. Before broadcasting its initial report, WPLG contacted Readon to
discuss the allegations.
WPLG aired its initial story about Readon’s previous business with
Thomas Harper, Latasha Blue, Darrick Andrews, and Shanequa Veal. The
story outlined that Harper had given Readon money as a deposit for a lease
on a property owned by Readon, but Harper was not able to move into the
property because it was occupied by a prior tenant. WPLG further reported
allegations by Blue that he had placed a deposit for a vehicle that was never
delivered, and by Andrews who stated that Readon had borrowed money to
obtain the services of a music performer for a church event that never
happened. WPLG correctly reported that the lawsuits from Veal and Harper
had settled, however WPLG failed to state that no suit had been filed by Blue
or Andrews at that time. Blue and Andrews both gave statements that were
included as part of the report.
After the initial broadcast, WPLG was approached by several other
members of the community with reports of negative experiences with
3
Readon. WPLG aired a second story about Readon, detailing the allegations
of Edward Fuller. Specifically, Fuller alleged that Readon had acquired title
to Fuller’s home through his non-profit organization with a promise to help
Fuller restore the home and return it to him.
The second broadcast further detailed an exchange between Readon
and Berenton Whisenant who served as guardian ad litem for a minor child
in a family court proceeding. In an email exchange, Readon implored
Whisenant to pay particular care and attached a picture of a dead young
man. The news story incorrectly reported that Readon had sent a picture of
a dead body to a federal prosecutor. While Whisenant would eventually
become a federal prosecutor, he was not yet a prosecutor when the picture
was sent.
Several months later, WPLG broadcast a third story with allegations
from Lorenzo Johnson and AAGG Investment, LLC. Johnson claimed that
Readon had stolen a personal check from him and forged his signature on
the check. During the broadcast, AAGG stated that Readon had not paid rent
on a property that it had leased to him.
During each of the stories, Readon was referred to as a pastor and
community leader. Many of the allegations in the news stories were voiced
over images of Readon preaching in church or attending community events.
4
As noted above, Readon’s third amended complaint alleged
defamation and defamation by implication. WPLG moved to dismiss the
complaint for failure to state a cause of action. The trial court held a hearing
on the motion before dismissing the complaint with prejudice.
Analysis
We review a trial court’s order granting a motion to dismiss de novo.
Cornfeld v. Plaza of the Americas Club, Inc.,
273 So. 3d 1096, 1098 (Fla. 3d
DCA 2019).
a. Defamation
To state a claim for defamation of a public figure, 1 Readon was
required to allege that WPLG’s reports contained statements that were (1)
false; (2) defamatory; (3) damaging; and (4) that the publisher acted with
actual malice. Don King Prods., Inc. v. Walt Disney Co.,
40 So. 3d 40, 43
(Fla. 4th DCA 2010).
1
Normally, to determine if a plaintiff in a defamation lawsuit is a public figure,
Florida courts employ a two-step process: “First, the court must determine
whether there is a ‘public controversy.’” Mile Marker, Inc. v. Petersen Publ’g,
L.L.C.,
811 So. 2d 841, 845 (Fla. 4th DCA 2002) (quoting Gertz v. Robert
Welch, Inc.,
418 U.S. 323, 351 (1974)). Second, “the court
must . . . determine whether the plaintiff played a sufficiently central role in
the instant controversy to be considered a public figure for purposes of that
controversy.” Id. at 846. Readon, however, asserts in his complaint that he
is a public figure. Therefore, we accept Readon’s statement as true and
decline to engage in a public figure analysis.
5
Most of the statements Readon complains of cannot be defamation
because they are true. In a defamation action against a media defendant,
the Constitution requires that the plaintiff allege a false statement. Smith v.
Cuban Am. Nat’l Found.,
731 So. 2d 702, 706 (Fla. 3d DCA 1999) (citing
Phila. Newspapers, Inc. v. Hepps,
475 U.S. 767, 775–76 (1986)). The
complaint alleges that WPLG reported on allegations made by third parties
about their business dealings with Readon. However, the complaint admits
that those allegations were made and in many cases the lawsuits were
pending or had been settled.
The only substantively false statement which Readon alleges, that he
sent a picture of a dead body to a prosecutor, is not actionable in a
defamation lawsuit. Florida recognizes the substantial truth doctrine in
defamation cases. Smith,
731 So. 2d at 706. “Under the substantial truth
doctrine, a statement does not have to be perfectly accurate if the ‘gist’ or
the ‘sting’ of the statement is true.”
Id. (quoting Masson v. New Yorker Mag.,
501 U.S. 496, 517 (1991)). As long as a report is substantially correct, “[i]t is
not necessary that it be exact in every immaterial detail or that it conform to
the precision demanded in technical or scientific reporting.” Woodard v.
Sunbeam Television Corp.,
616 So. 2d 501, 502–03 (Fla. 3d DCA 1993)
(quoting Restatement (Second) of Torts § 611, cmt. f (1977)). Further,
6
Florida law recognizes a difference between statements presented as fact
and statements presented as an opinion or rhetorical hyperbole. See Byrd v.
Hustler Mag., Inc.,
433 So. 2d 593, 595 (Fla. 4th DCA 1983). The key
distinction is whether the incorrectly reported material would “have had a
different effect on the mind of the viewer” by affecting “the gist of the story.”
Woodard,
616 So. 2d at 503.
The only “false” statement attributed to WPLG contained in the
complaint did not affect the gist of the story by creating a different impression
in the mind of the viewer. In reporting that Readon had sent a picture of a
dead body to a federal prosecutor, WPLG failed to include information that
the recipient was not a federal prosecutor at the time but was in his capacity
as guardian ad litem. While this oversight made the statement untrue, it did
not change the gist of the story that Readon had emailed a picture of a dead
body to an attorney serving as a child’s guardian. The third amended
complaint therefore contains no actionable false statement and the claim for
defamation was properly dismissed.
Readon also failed to allege that WPLG acted with actual malice. The
First Amendment safeguards publishers from defamation suits brought by
public figures unless the publisher acts with actual malice. Mia. Herald Publ’g
Co. v. Ane,
423 So. 2d 376, 382 (Fla. 3d DCA 1982) (citing Curtis Publ’g Co.
7
v. Butts,
388 U.S. 130, 162–65 (1967) (Warren, C.J., plurality concurrence)).
Actual malice is defined as “knowledge that the statement was false or
reckless disregard of whether it was false or not.” Don King Prods.,
40 So.
3d at 43 (citing N.Y. Times Co. v. Sullivan,
376 U.S. 254, 279–80 (1964)).
This standard requires “more than mere negligence.”
Id. Instead, reckless
conduct, as defined by the United States Supreme Court in St. Amant v.
Thompson,
390 U.S. 727, 731 (1968), includes:
[R]eckless conduct is not measured by whether a reasonably
prudent man would have published, or would have investigated
before publishing. There must be sufficient evidence to permit
the conclusion that the defendant in fact entertained serious
doubts as to the truth of his publication. Publishing with such
doubts shows reckless disregard for truth or falsity and
demonstrates actual malice.
Readon was therefore required to plead facts sufficient to give rise to a
reasonable inference of actual malice. Michel v. NYP Holdings, Inc.,
816
F.3d 686, 701–02 (11th Cir. 2016).
Readon failed to plead facts sufficient to show that WPLG published
with sufficient doubts as to the truth of its publication. “Actual malice requires
more than a departure from reasonable journalistic standards . . . [t]hus, a
failure to investigate, standing on its own, does not indicate the presence of
actual malice.” Id. at 703 (citations omitted). Instead, “there must be some
8
showing that the defendant purposefully avoided further investigation with
the intent to avoid the truth.” Id. (citations omitted).
Care must be taken not to construe cases which have found a failure
to investigate too broadly because the First Amendment “demands that the
law of libel carve out an area of ‘breathing space’ so that protected speech
is not discouraged.” Harte-Hanks Commc’ns, Inc. v. Connaughton,
491 U.S.
657, 686 (1989) (citations omitted). The analysis in this regard must always
be informed by the safeguards provided by the First Amendment “fashioned
to assure the unfettered interchange of ideas for the bringing about of
political and social changes desired by the people.” Roth v. United States,
354 U.S. 476, 484 (1957).
Readon argues that WPLG failed to properly investigate and include
all relevant facts in its reporting. In Michel, the Eleventh Circuit recognized a
limited set of circumstances in which actual malice might arise from a failure
to investigate. The Michel Court stated that the plaintiff failed to show actual
malice because the publication was not “fabricated by the defendants, wholly
imaginary, based on an unverified anonymous phone call, inherently
improbable, or obviously worthy of doubt.”
Id. at 705 (citing St. Amant,
390
U.S. at 732).
9
This limited set of circumstances conforms to the requirements of the
First Amendment. As stated in St. Amant, it is not enough that a reasonably
prudent person “would have investigated further.”
390 U.S. at 731. Indeed,
Florida law is well settled that the failure to investigate, without more, does
not constitute actual malice. Palm Beach Newspapers, Inc. v. Early,
334 So.
2d 50, 52–53 (Fla. 4th DCA 1976). Instead, there must be “obvious reasons
to doubt the veracity of the informant or the accuracy of his reports.” St.
Amant,
390 U.S. at 732.
The third amended complaint asserts that WPLG was contacted by a
known informant who apprised the station of the allegations against Readon.
Readon admits that WPLG verified the existence of the lawsuits naming him
as a defendant by checking public court records. These facts conclusively
show that the reports were not fabricated by WPLG, wholly imaginary, based
on an unverified anonymous source, inherently improbable, or obviously
worthy of doubt. Michel, 816 F.3d at 705. Further, Readon admits that he
was contacted by WPLG to discuss the allegations. WPLG, therefore, had
“no obvious reasons . . . to doubt the challenged statements, so its failure to
conduct a more searching investigation does not show actual malice.” Don
King Prods.,
40 So. 3d at 46.
10
Readon has not shown that WPLG’s investigation was deliberately
skewed to avoid uncovering what he calls “the whole truth.” For instance,
Readon points out that several of the cases had been settled and others
involved family members. However, WPLG was not required to balance its
reporting with potentially mitigating factors so long as the reporting did not
“purposely [make] false statements about [Readon] in order to bolster the
theme of the program or to inflict harm on [Readon].”
Id. at 45. WPLG had
no reason to believe that the statements made by Readon’s accusers were
not true, indeed, WPLG confirmed through both interviews and public
records that those allegations existed. Further, the existence of similar
allegations from various members of the community stemming from business
dealings with Readon served to substantiate each of the allegations.
Therefore, the third amended complaint fails to show that WPLG acted with
actual malice.
Because the complaint failed to allege a relevant false statement or
that WPLG acted with actual malice, Readon failed to state a claim for
defamation.
b. Defamation by Implication
The third amended complaint also failed to state a claim for defamation
by implication. As the Florida Supreme Court noted:
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Defamation by implication arises, not from what is stated, but
from what is implied when a defendant (1) juxtaposes a series of
facts so as to imply a defamatory connection between them, or
(2) creates a defamatory implication by omitting facts, such that
he may be held responsible for the defamatory implication.
Jews for Jesus, Inc. v. Rapp,
997 So. 2d 1098, 1106 (Fla. 2008) (quoting
Stevens v. Iowa Newspapers, Inc.,
728 N.W. 2d 823, 827 (Iowa 2007)).
“[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.”
Id. at 1107–08.
WPLG did not impermissibly juxtapose a series of true facts so as to
create a defamatory implication. Readon alleges that WPLG improperly
juxtaposed his business dealings as a private person with his role as a
pastor, thereby implying that the acts were committed in his role as pastor.
In doing so, Readon has mistaken the purpose of the cause of action for
defamation by implication. The tort requires that the implied fact be
defamatory. But WPLG’s negative statements about Readon were not the
implication that his business dealings were done as a pastor, rather they
were that he was engaging in a continuing pattern of deceitful business
practices.
Readon’s argument would result in a substantial chilling effect on the
freedom of the press. A news agency such as WPLG will often name the
12
profession of the subject of their investigative reporting. When this person is
a public figure, it is often this information which makes the reporting relevant
to the public. This is not contingent, as Readon argues, on there being a
connection between the profession and the alleged negative acts. Were we
to accept Readon’s position it would become nearly impossible for the media
to report on various acts by public figures which have consistently shown to
be relevant to the public such as a professional football player caught on
camera engaging in domestic violence; a prominent businessman organizing
an intricate sex trafficking ring; or a television and movie star promulgating
racist, sexist, or homophobic tweets. None of these acts are related to the
professions of the persons engaged in them, yet the reporting of both the
acts and professions is relevant to the public debate and therefore reporting
on such matters is protected by the First Amendment.
A classic example of defamation by implication was before the Second
District in Heekin v. CBS Broad., Inc.,
789 So. 2d 355, 358 (Fla. 2d DCA
2001). 2 In Heekin, the plaintiff alleged that a broadcast falsely portrayed him
as a spouse abuser by juxtaposing an interview with his former spouse along
2
While Heekin involved the since-disapproved tort for false light invasion of
privacy, the Florida Supreme Court has noted that nearly all such claims
could have been brought as defamation by implication. Jews for Jesus,
997
So. 2d at 1113.
13
with stories and pictures of women who had been abused and killed by their
partners.
789 So. 2d at 357. Even though the reporting did not literally claim
that the plaintiff was a spouse abuser, by overplaying his former wife’s story
with stories of spouse abuse, the reporting created the defamatory
implication that the plaintiff had abused his spouse. Conversely, Readon has
alleged no such defamatory implication. The negative statements about
Readon, that he was engaged in potentially underhanded business dealings,
were not implied but rather stated explicitly. The reporting of Readon’s
profession did not make these stories about Readon any more or less
negative, but rather gave the public a context for why the stories were
relevant.
Since the third amended complaint failed to allege any defamatory
implication, Readon failed to state a cause of action for defamation by
implication.
c. Dismissal with Prejudice
Readon claims that the trial court improperly dismissed his complaint
with prejudice rather than allow him to submit a fourth amended complaint to
correct any errors in the pleadings. WPLG counters that because the original
complaint suffered the same infirmities, no cause of action was ever pleaded
14
and therefore, the statute of limitations has run, 3 and nevertheless further
amendment would be futile.
Ordinarily, a decision to allow leave to amend is within the sound
discretion of the trial court, and “will not be overturned unless abuse is
demonstrated.” Holy Temple Church of God in Christ, Inc. v. Maxwell,
578
So. 2d 877, 878 (Fla. 1st DCA 1991). When making this determination “all
doubts should be resolved in favor of allowing amendment.” Adams v. Knabb
Turpentine Co.,
435 So. 2d 944, 946 (Fla. 1st DCA 1983). Generally, refusal
to allow amendment of a pleading constitutes an abuse of discretion unless
it clearly appears that allowing the amendment would prejudice the opposing
party; the privilege to amend has been abused; or the amendment would be
futile. See New River Yachting Ctr., Inc. v. Bacchiocchi,
407 So. 2d 607, 609
(Fla. 4th DCA 1981).
However, “as an action progresses, the privilege of amendment
progressively decreases to the point that the trial judge does not abuse his
3
WPLG’s statement that the statute of limitations has run is of no
consequence. Florida Rule of Civil Procedure 1.190(c) states: “When the
claim . . . asserted in the amended pleading arose out of the conduct,
transaction, or occurrence set forth or attempted to be set forth in the original
pleading, the amendment shall relate back to the date of the original
pleading.” (emphasis added). Any amendment by Readon would be based
on the news reports previously at issue in this litigation. Any amendment
would therefore relate back.
15
[or her] discretion in dismissing with prejudice.” Kohn v. City of Miami Beach,
611 So. 2d 538, 539 (Fla. 3d DCA 1992). This Court has “observed that with
amendments beyond the third attempt, dismissal with prejudice is generally
not an abuse of discretion.”
Id. (citing Alvarez v. DeAguirre,
395 So. 2d 213,
217 (Fla. 3d DCA 1981)). Readon’s third amended complaint fails to state a
claim against WPLG by not pleading any set of facts giving rise to a cause
of action for either defamation or defamation by implication. Since further
amendment would go beyond the third attempt, it was not an abuse of
discretion for the trial court to dismiss with prejudice.
Affirmed.
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