The Volokh Conspiracy
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$135K Defamation Verdict for Facebook Post Saying Condo Association President Was Mayor's "Felching Cronie"
Feinstein v. Currie, decided by Palm Beach (Fla.) County Circuit Judge Maxine Cheesman on Nov. 11, 2024 but just recently posted on Westlaw, involves two Facebook posts on the Town of Ocean Ridge Facebook page:
[1.] Hi yes, I'm wondering if wondering if Mayor Susan Hurlburt and her felching cronie [sic] Mark Feinstein are still being allowed to pollute our beautiful ocean with hazardous refuse?
[2.] Hey let me just go down to the beach in front of Susan Hurlburt and her felching cronie [sic] Mark Feinstein's house at Turtle Beach and get myself cut up on the signage they're trying to keep held in place by jagged metal footing.
Last month, the jury concluded that the statements were defamatory statements of fact (rather than "rhetorical hyperbole, a vigorous epithet, or opinion that cannot reasonably be interpreted as stating actual facts") said with knowledge or recklessness as to their falsehood, and awarded plaintiff $135K in compensatory damages. Back in November of last year, the court denied defendant's motion for summary judgment, concluding that the case should indeed go to the jury (though the opinion wasn't posted on Westlaw until several days ago, which is when I learned of the case):
As the Defendant admitted in his deposition, "felching" is defined as sucking or eating semen out of the anus of another individual. The Defendant further admitted that he was aware of the preceding definition of felching at the time he made the subject Facebook posts.
When the Defendant was asked what "factual basis" he had to believe that Plaintiff engaged in felching he acknowledged he had no "factual evidence" to accuse Plaintiff of felching. Although the Defendant claimed his accusation of felching was in reference to Plaintiffs alleged corrupt relationship with the Mayor of OceanRidge, and to alleged issues with sign placement and zoning in the town, the Defendant admitted that felching had "nothing" to do with these issues. The Defendant also admitted there was no "factual evidence" to believe Plaintiff had a sexual relationship with the mayor.
{In January 2022, prior to the statements at issue, the Defendant admitted he was arrested for stealing "no trespassing" signs from the beach on [Turtle Beach of Ocean Ridge Condominium Association's] property. As the Defendant testified, his animosity toward Plaintiff [who was President of the Association] or his behavior stems from this property dispute, and the Defendant believes that Plaintiff is "polluting the beach and harassing his neighbors" in Ocean Ridge.} …
[T]he Court concludes that a reasonable jury could find the Defendant's statements that accused Plaintiff of "felching" were defamatory—not merely an insult or hyperbole when read in context….
Florida courts have found similar statements to rise to the level of actionable defamation. See Bilbrey v. Myers (Fla. Ct. App. 2012) (reversing dismissal of defamation claims "based on a series of statements made by [church pastor], who expressly or implicitly inferred that Bilbrey was a homosexual and asserted that Bilbrey's upcoming marriage was a sham to hide his homosexuality"); House of God Which is the Church of the Living God, the Pillar & Ground of the Truth Without Controversy, Inc. v. White (Fla. Ct. App. 2001) (recognizing claim for defamation against pastor who allegedly called plaintiff a "slut" while standing at church altar in front of other clergy and parishioners); Hoch v. Rissman, Weisberg, Barrett (Fla. 5th DCA 1999) (rejecting defendant's argument that saying judge liked "men in tight shorts" was pure opinion and finding statement amounted to slander per se)….
[A] reasonable jury could [also] interpret the Defendant's statements literally as opposed to an expression of pure opinion…. Here, the character of the Defendant's statements, when read in context, may reasonably be understood to be defamatory because they tend to subject Plaintiff to hatred, distrust, ridicule, contempt, or disgrace. The Court notes that a statement appearing to be in the form of an opinion is still actionable as defamation if it "implies the allegation of undisclosed defamatory facts as the basis for the opinion." The Defendant's statements, which accuse Plaintiff of felching, do just that; they imply the allegation of undisclosed defamatory facts that Plaintiff is a sexual deviant. Accordingly, the Court denies the Defendant's amended motion for summary judgment on this point….
Plaintiff is not required to present evidence of actual malice [i.e., knowing or reckless falsehood] … [because] Defendant has failed to establish he is a limited public figure. However, even assuming that Plaintiff was a limited public figure, the Court finds that Plaintiff has presented sufficient evidence of actual malice….
I'm not sure this is correct: The better view might be that, in context, the statement doesn't allege actual sexual behavior, but just conveys disgust and a desire to degrade. See, e.g., Crawford v. United Steelworkers (Va. 1985), ("To call a person a "cocksucker" does not, under the circumstances of this labor dispute, convey the false representation that the individual engaged in sodomy."); Grillo v. John Alden Life Ins. Co. (D. Minn. 1996) ("Moreover, his supervisor's alleged description of plaintiff as a 'cocksucker' with a 'two-inch dick,' 'although uncomplimentary … does not suggest verifiably false facts about' plaintiff."). On the other hand, the judge and jury obviously didn't take my view of the matter.
Matthew Haynes (Lytal, Reiter, Smith, Ivey & Fronrath) represents plaintiff.
