The Volokh Conspiracy
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Tiger King + Libel: Video Log and Web Site Post Aren't Covered by Florida's Defamation Retraction Statute
From McQueen v. Baskin, decided by the Florida Court of Appeal (Judge Matthew Lucas, joined by Judges Darryl Casanueva and Susan Rothstein-Youakim):
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….
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. 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.
Not long after Mr. Lewis' disappearance, one of his daughters filed a conservatorship petition in the Hillsborough County Circuit Court. In that petition Mr. Lewis' daughter sought to appoint Ms. McQueen as a conservator of Mr. Lewis' property. Disputes arose during the course of the conservatorship proceedings. Ms. Baskin alleged that Ms. McQueen "improperly transferred real property, mortgages, and tax certificates." For her part, Ms. McQueen filed a petition for an injunction.
After a year of litigation, the parties entered into a stipulation which disposed of the property in dispute. As part of that settlement, Ms. McQueen received a $50,000 payment for all her potential claims in the conservatorship litigation including a "libel and slander claim" against Ms. Baskin. Ms. Baskin was also obligated to issue a written apology to Ms. McQueen, 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." {In her briefing, Ms. Baskin points out that the settlement agreement in the conservatorship litigation expressly disclaimed being an admission of any kind of liability.}
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 YouTube 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). 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 might "be a little skewed on some of the things that I remember" and that the video entries are "for entertainment purposes only," the Baskin Vlog was obviously meant to relay Ms. Baskin's assertions of what truly happened at Big Cat Rescue in the late 1990s.
Baskin made various allegations about McQueen in the vlog and on the Big Cat Rescue site; McQueen sued, and the court held the case could go forward, because Baskin's claims made factual allegations that, if false (a matter for the jury), could be defamatory. Among other things, the court also concluded that Baskin's vlog wasn't protected by the Florida defamation retraction statute (§§ 770.01-.02), which provides:
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….
(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.
The court relied on Mazur v. Ospina Baraya (Fla. App. 2019), which held that the statute didn't cover books and movies (there, The Infiltrator, a mainstream film and book about drug lord Pablo Escobar), even though it covers some nonprofessional blogs:
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 neutral commentary or editorializing as to matters of public interest." "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.'" 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 (Fla. App. 2015) (holding that "an internet publisher of various purportedly scientific, technical, and medical journals and information" was covered by section 770.01); Comins v. Vanvoorhis (Fla.. App. 2014) (holding that a blog was covered by section 770.01 and noting that "many blogs and bloggers will fall within the broad reach of 'media' "because many blogs have "primarily an informational purpose" and "usually provide[ ] for public impact or feedback")….
The canon of ejusdem generis "states that when a general phrase follows a list of specifics, the general phrase will be interpreted to include only items of the same type as those listed." … Applying this canon to section 770.01, it becomes clear that the general term "other medium" is limited by the specific terms that precede it: "publication or broadcast, in a newspaper, periodical …." …
Although books and movies may address topics of public interest, they are not part of the traditional news media or press …. [They] do not speedily disseminate fact reporting or editorial content to the public. Books and movies are typically created over an extended period of time and are not susceptible to the same inevitable errors that arise when rapidly reporting on the news. Moreover, the frequency and wide distribution of news media allows for speedy and effective retractions when errors do happen. Books and movies have no similar mechanism for quickly and effectively issuing retractions. Accordingly, Petitioners/Defendants in this case are non-media defendants for purposes of section 770.01, and they are not entitled to presuit notice pursuant to the statute.
And the court (back in the Tiger King case) held that this logic applies to Baskin's vlog and website post:
If a movie and a nonfiction book about an alleged drug cartel insider do not constitute "other medium" under section 770.01, it is difficult to imagine how Ms. Baskin reading her diary entries on a vlog about a former secretary whom she repeatedly accuses of embezzlement could….
[M]edia defendants are not limited to those who work in print media. True enough…. [But] our focus remains on the content of the digital publication and the central issue of whether it could be likened to the kind of content newspapers, broadcasters, and periodicals publish (whether in print or online), because that is all that sections 770.01 and .02 encompass. Ms. Baskin's vlog and website postings fall short of that mark….
Allison Morat and Ronnie Bitman of Bitman, O'Brien & Morat, PLLC and John M. Phillips and Amy M. Hanna of Phillips & Hunt represent McQueen. Thanks to Griffin Klema for the pointer.
