Say Today, Pay Tomorrow: Florida Court Refuses to Enjoin Defamation

Jan 11, 2013   

Bob and Sue were once passionately in love. Until Bob decided he wasnt. Sue did not like being jilted one bit. So, Sue took her revenge through the social media, publishing fabricated stories and tomes about Bob. Sue was so engrossed with her rejection that she took the liberty of writing a tell-all book about Bobs transgressions, taking great pains to avoid any strain of truth.

When Bob found out about the imminent publication of the phony “tell-all” tale, he demanded that Sue “cease and desist” with her defamatory attacks through the social media and her soon-to-be published book. Hell-bent on revenge, Sue refused.

What can Bob do to put an immediate stop to the vicious attacks on his good name and reputation? The recent Fourth District decision of Vrasic v Leibel, 38 Fla. L.Weekly D106A (Fla. 4th DCA January 9, 2013), answered this very question “ very likely nothing. Succinctly, absent special circumstances, Florida courts will not enjoin defamatory speech. A copy of the decision is available here.

To convince a court to enter the extraordinary remedy of injunctive relief, a party most demonstrate: (a) a clear legal right to the relief sought; (b) a likelihood of immediate and irreparable harm because of the unavailability of an adequate remedy at law; (3) a substantial likelihood of success on the merits of its claims; and (4) that the relief sought herein is in the publics interest. The ironically titled Leibel court explained that injunctive relief is not a remedy available under Florida law to proscribe defamatory speech

The Leibel court reasoned a moving party in a defamation case generally cannot ever meet the necessary elements to enable the court to enter the pre-judgment relief. First, the moving party in a defamation case typically has “an adequate remedy at law.” Specifically, the moving party is seeking an award of “damages,” and thus equitable relief is not available.

More importantly, the Leibel court reiterated that “a temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns,” and that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights … and protection against prior restraints on speech extends to both false statements and to those from which a commercial gain is derived.” Thus, public policy will not allow free speech, regardless of veracity, to be restrained.

All is not lost for Bob. First, like virtually every facet of law, exceptions apply. The Leibel court indicated that under special circumstances, an injunction will issue. Specifically, an injunction may be issued when the defamation “is made in the furtherance of the commission of another tort,” and the movant proves “special harm.” For example, in the context of slanderous words made by a business competitor in the course of competition, which ultimately rose to the level of tortious interference with an advantageous business relationship, the defamed victim may prove that the slanderous or libelous words not only injured the partys reputation, it caused a loss of business which was “incalculable.” Thus, in the limited circumstance of commercial defamation coupled with another tort, such as tortious interference, the courts are more inclined to restrain prior speech in order to save a business from imminent losses caused by the defamatory conduct.

Bob, of course, has yet another option. Proceed with his lawsuit to collect on the money damages caused by Sues defamation. While the Courts will let Sue say what she wants today, she will most certainly pay for her defamatory words tomorrow.