Filing # 95211851 E-Filed 09/05/2019 01:15:51 PM

IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-
DADE COUNTY, FLORIDA
ANTHONY F DEFILLIPO,
Plaintiff Case No.: 2018-035872-CA-01
vs.
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL ET AL,
Defendant
_________________________________________/
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT THOR MEDIA GROUP’S
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

THOR MEDIA GROUP LLC, by and through undersigned counsel files this Memorandum

of Law in response to the Court’s directive at the August 29, 2019 hearing. The Court directed

undersigned counsel to submit a memorandum of law regarding the cases cited in Thor Media

Group’s Motion to Dismiss for Failure to State a Claim to answer whether they were decided at

the motion to dismiss stage of the pleadings as a matter of law. 1

Legal Standard

"The purpose of a motion to dismiss is 'to test the legal sufficiency of the complaint, not to

determine factual issues.'" Rolle v. Cold Stone Creamery, Inc., 212 So. 3d 1073, 1076 (Fla. 3d

DCA 2017) (quoting The Fla. Bar v. Greene, 926 So. 2d 1195, 1199 (Fla. 2006)). [T]o properly

plead a claim for defamation, [a plaintiff] must allege: (1) publication; (2) falsity; (3) actor must

act with knowledge or reckless disregard as to the falsity on a matter concerning a public official,

(4) actual damages; and (5) statement must be defamatory." Jews For Jesus, Inc. v. Rapp, 997 So.

2d 1098, 1106 (Fla. 2008); Cousins v. Post-Newsweek Stations Fla., Inc., 44 Fla. L. Weekly D538

(Fla. 3d DCA February 20, 2019) Where a pleading’s incorporated exhibit facially negates a cause

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The Am. Jur. citations in the motion will refer also to the underlying state Court opinions
interpreting the first amendment.
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of action, the exhibit controls and must be considered in determining the motion to dismiss. Fladell

v. Palm Beach County Canvassing Bd., 772 So. 2d 1240, 1242 (Fla. 2000) Here, the publication

is attached to the complaint and “shall be considered a part thereof for all purposes. Fla. R. Civ.

P. 1.130(b). Courts need not accept internally inconsistent factual claims, conclusory allegations,

unwarranted deductions, or mere legal conclusions made by a party. Response Oncology v.

Metrahealth Ins. Co., 978 F. Supp 1052, 1058 (S.D. Fla. 1997).

Introduction

Defamation actions are routinely dismissed where the court determines that allegedly

defamatory statements are pure opinion or are based on facts set forth in the publication or which

are otherwise known or available to the reader or listener as a member of the public. In support of

dismissal for failure to state a claim, the following cases cited in the Motion stand for the

proposition that when a publication does not contain a provably false statement of fact, as a matter

of law it does not state a cause of action, a determination properly resolved by the trial court at this

stage.

Analysis

“Whether statements are privileged expressions of pure opinion or unprivileged mixed

expressions of opinion is a question of law properly resolved by the trial court. Smith v. Taylor

County Publishing Co., Inc., 443 So.2d 1042 (Fla. 1st DCA 1983); From v. Tallahassee Democrat,

Inc., 400 So.2d 52 (Fla. 1st DCA 1981). A privileged expression of pure opinion "occurs when the

defendant makes a comment or opinion based on facts which are set forth in the article or which

are otherwise known or available to the reader or listener as a member of the public." From v.

Tallahassee Democrat, Inc.,” (Citation omitted) Sepmeier v. Tallahassee Dem., Inc., 461 So. 2d

193, 195 (Fla. 1st DCA 1984) “Pure opinions” are not actionable as defamatory out of a deference

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for free speech and the First Amendment.” Scott v. Busch, 907 So. 2d 662, 663 (Fla. 5th DCA

2005)

In From v. Tallahassee Dem., 400 So. 2d 52, 53 (Fla. 1st DCA 1981):

The court affirmed dismissal of appellant's action for defamation, but held that the
lower court incorrectly characterized appellant as a public figure. The court
continued, holding that the article was not libelous per se, but was an opinion rather
than a false statement of fact. The article was not libelous whether measured by an
actual malice standard or a simple negligence standard. The opinions contained in
the article were not based upon facts disclosed in the article, but rather appellant's
performance provided the facts upon which the author based his opinion. As such,
these statements were privileged, pure opinion, not defamatory, and thus, not
actionable. The lower court's characterization of appellant as a public figure was
improper, though not reversible. The court held that the article itself was not
actionable. The lower court reached the proper result, albeit for an improper reason,
and the court affirmed the lower court order.
Unlike in From, here Plaintiff DeFilippo asserts in paragraphs 3 and 12 that he is a public

figure, as “distinguished City Commissioner” and “candidate for Mayor of North Miami Beach.”

The mailer on its face clearly does not charge Mayor Defilippo with membership in the

Italian Mafia, and the exhibit attached to the complaint is repugnant to that allegation. To the extent

that Plaintiff purports to plead through innuendo that the statements in the mailer are defamatory

to him because it refers to him belonging to the “Italian mafia” (¶13) or “a member of organized

crime” or “mafia” (¶17), courts have dealt with such a case before, in which such an allegation

was made. In Privitera v. Town of Phelps, 79 A.D.2d 1, 435 N.Y.S.2d 402 (4th Dep’t 1981) the

Court held it is not slander per se to charge another with membership in the Mafia.

The complaint before us does not allege slander per se either directly or by properly
pleaded innuendo because it does not allege that DeBar charged plaintiffs with an
indictable offense. The Mafia, the dictionary tells us, is a "secret criminal society".
But that is not enough. People are indicted for what they do, not for their
associations or beliefs, and membership in an organization, even membership in an
organization having a criminal purpose, is not an indictable offense (see Gurtler v
Union Parts Mfg. Co., 285 App Div 643, affd 1 N.Y.2d 5, supra [charge that
plaintiff was a Communist]). Nor is it slander per se to charge that one is a "bad
man", or a "criminal", or a "crook" (Klein v McGauley, 29 A.D.2d 418, supra;

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 Villemin v Brown, 193 App Div 777). Such words are too general to permit
defendant to justify the accusation and to hold them actionable per se imposes an
undesirable restraint on expression. To come within the class, the words must
charge plaintiff with a specific identifiable offense (Klein v McGauley, supra, p
421).

Plaintiffs point out that it is not necessary that the accusation charge a crime in
technical language; it is enough that it impute a criminal offense (see Lander v
Wald, 218 App Div 514, affd 245 N.Y. 590; Nowark v Maguire, 22 A.D.2d 901;
Restatement, Torts 2d, § 571, comment c). Thus, they claim, and the dissent agrees,
that the complaint is sufficient because by dictionary definition the Mafia engages
in "racketeering", "peddling narcotics" and "gambling". Unquestionably, words
implying criminal conduct, especially words loaded with the emotional freight of
"Mafia", are offensive and hold the plaintiff up to contempt. But they are not
slanderous per se unless they specify a crime or a crime is readily apparent from
properly pleaded innuendo (see Tracy v Newsday, Inc., 5 N.Y.2d 134; Selkowe v
Bleicher, 286 App Div 1095, 1096; Prosser, Torts [4th ed], pp 748-749; and cf.
Harris v New York, Westchester & Boston Ry. Co., 244 App Div 252)

50 AM JUR § 170, at 540 n. 2.

The Complaint also alleges that the mailer accused the Plaintiff of “being corrupt”. The

accusations are not a charge of a specific criminal offense and thus are not defamatory.

Courts have determined a statement referring to a person as a “criminal” as protected

opinion when it is based on underlying facts disclosed: A newspaper article discussing the state

attorney’s office’s decision not to prosecute the plaintiff, and their allusion to them as a “crook”

and “criminal” was considered to fall within pure opinion because the article disclosed the

underlying facts and criminal charges against the plaintiff. Hay v. Independent Newspapers, Inc.,

450 So. 2d 293, 295 (Fla. 2d DCA. 1984).

The complaint in the case sub judice was defective because it was based upon an
expression of pure opinion and therefore failed to allege a false and defamatory
statement of and concerning the appellant. The complaint alleged that statements
contained in the article referred to the appellant as a crook and a criminal. These
statements were based in part upon facts disclosed in the article, but the fact that
criminal charges had been filed against the appellant was either known or readily
available to the reader as a member of the public. Furthermore, the statements were
made in a letter to the editor published in a section of the newspaper titled "The
Forum, Opinion," and the letter was directed not toward the appellant, but toward

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 the judicial system. Applying the principles hereinabove set forth, we hold the
statement was a pure expression of opinion and accordingly protected by the First
Amendment of the United States Constitution. See also Demoya v. Walsh, 441
So.2d 1120 (Fla. 3d DCA 1983) (characterization of co-worker as "raving maniac"
and "raving idiot" was pure opinion based on disclosed facts); Kotlikoff
(accusations of mayor's involvement in "huge coverup" and "conspiracy" were, in
context, protected expressions of opinion); contra Rinaldi v. Holt, Rinehart &
Winston, Inc., 42 N.Y.2d 369, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert. denied,
434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977) (accusations of criminal activity,
even in form of opinion, are not constitutionally protected).

Hay v. Independent Newspapers, Inc., 450 So. 2d 293, 295 (Fla. 2d DCA. 1984).

When relying on photos to support the opinion, the courts have determined that allegedly

defamatory statements are found to be protected opinion. Town of Sewall’s Point v. Rhodes, 852

So. 2d 949, 951 (Fla. 4th DCA 2003).(A picture of the plaintiff’s backyard accompanied with the

caption “hillbilly hellhole” constituted pure opinion because the picture communicated the

underlying basis for the opinion.)

The framed photograph bearing the words "Our View of the Hillbilly Hellhole"
amounts to a statement of pure opinion. Here, all of the facts upon which Levin
based her opinion are contained in the photograph. The caption is nothing more
than her commentary on the facts presented in the photograph. There is no
implication that Levin's opinion is based on a concealed or undisclosed set of
defamatory facts. Rather, anyone viewing the photograph can confirm the condition
of appellees' property and draw his or her own conclusion concerning the "Hillbilly
Hellhole" description. For these reasons, the defamation claim fails as a matter of
law. Appellees' invasion of privacy claim is similarly barred. See Callaway Land
& Cattle Co., Inc. v. Banyon Lakes C. Corp., 831 So.2d 204 (Fla. 4th DCA
2002)(citing Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So.2d 607, 609
(Fla. 4th DCA 1975)).

Town of Sewall’s Point v. Rhodes, 852 So. 2d 949, 951 (Fla. 4th DCA 2003).

To determine whether an allegedly defamatory statement is actionable, the test must

consider context:

In sum, the test to be applied in determining whether an allegedly defamatory

statement constitutes an actionable statement of fact requires that the court examine
the statement in its totality in the context in which it was uttered or published. The
court must consider all the words used, not merely a particular phrase or sentence.

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 In addition, the court must give weight to cautionary terms used by the person
publishing the statement. Finally, the court must consider all of the circumstances
surrounding the statement, including the medium by which the statement is
disseminated and the audience to which it is published. Id. at 1047. See also,
Madsen v. Buie, 454 So. 2d 727, 9 F.L.W. 1769 (Fla. 1st DCA).

Sepmeier v. Tallahassee Dem., Inc., 461 So. 2d 193, 196 (Fla. 1st DCA 1984)

In the present case, the Plaintiff acknowledges the context in which the mailer was

published and distributed as a political election by stating in their Complaint they are a “current

candidate for Mayor of North Miami Beach” (¶12), the mailer was “mailed to thousands of

citizens” (¶17) and as featured prominently in the mailer (¶16) itself are the words: ‘Tony

“Soprano” Defilippo and his slate for North Miami Beach city commission is more like a crime

family, than a dream team.’ The publication encourages “Don’t let their corrupt money buy this

election.”

The following cases appearing in 50 Am. Jur Libel and Slander Volume §§ 170, and 221

as cited in the motion to dismiss, support granting the motion to dismiss: Like in the present case,

in Williams v. Rutherford Freight Lines, Inc., 10 N.C. App. 384, 179 S.E.2d 319 (1971) (cited in

50 Am. Jur. Libel and Slander § 170, at 541 n. 3.), the allegedly defamatory statements do not refer

to a specific crime that the Plaintiff has committed but rather fall into the protected speech category

of name calling which is expected to occur and typical during a political election.

Plaintiffs argue that the language allegedly used by defendants is actionable per se
in that it charges them with a crime, and also tends to prejudice them in their
occupations as truck drivers and Union leaders. We disagree. It is true that
Webster's Third New International Dictionary defines a gangster, among other
things, as *323 "a member of a gang of criminals." However, the law contemplates
that in order to be actionable per se a false statement must impute that a person is
guilty of a punishable offense. "Words, which convey only the imputation of an
imperfect sense, or practice of moral virtue, duty, or obligation, are not sufficient
to support the action. The crime charged, too, must be such as is punishable by the
common or statute law; for, if it be only a matter of spiritual cognizance, it is not,
according to the authorities, actionable to charge it." Ringgold v. Land, 212 N.C.
369, 371, 193 S.E. 267, 268. See also Penner v. Elliott, supra; Deese v. Collins, 191

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 N.C. 749, 133 S.E. 92; Payne v. Thomas, supra; Beane v. Weiman Co., Inc., 5
N.C.App. 276, 168 S.E.2d 236.

50 Am. Jur. Libel and Slander § 170, at 541 n. 3.

In charging plaintiffs with being "gangsters", defendants were not charging them with a

specific crime for which they could be indicted and punished. The language, especially under the

circumstances here alleged, was nothing more than vituperation or name calling arising out of a

dispute over a labor grievance. This is not sufficient to permit recovery, absent a showing of special

damage. As was stated in Bouligny, Inc. v. Steelworkers, 270 N.C. 160, 173, 154 S.E.2d 344, 356,

"[e]ven where the plaintiff is an individual, some thickness of skin is required of him by the law

in the realm of labor disputes, just as in battles in the political arena." (Emphasis added.)

In Reed v. Gallagher, 248 Cal. App. 4th 841, 204 Cal. Rptr. 3d 178 (3d Dist. 2016), (cited

in 50 Am. Jur. Libel and Slander § 170, at 540 n. 2.) a political television advertisement repeating

an opposing candidate’s client’s statement that the opposing candidate was a “crook” was a

nondefamatory opinion, since no reasonable viewer would have thought that the advertisement

was accusing the opposing candidate of actual criminal activity.

Like in Reed, the Plaintiff in the current case is a public figure in a defamation action

related to a political election. Reed establishes that the context for political advertisement is

important in determining any “provably false statements of fact.” In the present case, references

to the Plaintiff being “for sale” and a member of “crime family” (¶15), and the nickname

“Soprano” (¶16) are either hyperbole or parody which are impossible to prove as false and thus

not actionable.

1. Falsity
“The sine qua non of recovery for defamation . . . is the existence of falsehood.”
(Old Dominion Branch No. 496 v. Austin (1974) 418 U.S. 264, 283.) “ ‘The
falsehood requirement is grounded in the First Amendment itself. “Under the First
Amendment there is no such thing as a false idea. However pernicious an opinion

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 may seem, we depend for its correction not on the conscience of judges and juries
but on the competition of other ideas.” [Citations.]’ ” (Nygard, Inc. v. Uusi-Kerttula
(2008) 159 Cal.App.4th 1027, 1048.)
“To state a defamation claim that survives a First Amendment challenge, thus,
plaintiff must present evidence of a statement of fact that is ‘provably false.’
[Citations.] ‘ “Statements do not imply a provably false factual assertion and thus
cannot form the basis of a defamation action if they cannot ‘ “reasonably [be]
interpreted as stating actual facts” about an individual.’ [Citations.] Thus,
‘rhetorical hyperbole,’ ‘vigorous epithet[s],’ ‘lusty and imaginative expression[s]
of . . . contempt,’ and language used ‘in a loose, figurative sense’ have all been
accorded constitutional protection. [Citations.]” [Citation.] The dispositive
question . . . is whether a reasonable trier of fact could conclude that the published
statements imply a provably false factual assertion. [Citation.]’ [Citation.]”
(Nygard, Inc. v. Uusi-Kerttula, supra, 159 Cal.App.4th at p. 1048.)
As noted, the trial court determined that, “none of the allegedly defamatory
statements constitute ‘provably false statements of fact.’

In the present case, like in Reed, the context of an exercise of free speech during political

campaign is part of the trial court’s analysis of whether statements made are defamatory. The

court concluded that the characterizations of Reed as “unscrupulous” and a “crook” were

nondefamatory.

Here, the challenged statement was made during the heat of a political campaign, a
context in which the audience would naturally anticipate the use of rhetorical
hyperbole. (Beilenson, supra, 44 Cal.App.4th at p. 954 [“Hyperbole, distortion,
invective, and tirades are as much a part of American politics as kissing babies”].)
Against this backdrop, Hinckley’s characterization of Reed as a “crook” cannot
reasonably be understood in the literal sense to mean that Reed committed any
crime. (Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 264-265 [candidate’s
characterization of opponent as a “thief” was “reasonably interpreted as loose
figurative language and hyperbole, not a claim that the plaintiff actually had a
criminal past”]; see also Fletcher v. San Jose Mercury News (1989) 216 Cal.App.3d
172, 190, 191 [statement that plaintiff was a “crook” and “crooked politician” was
“merely rhetorical and hyperbolic language”].) Rather, the audience, having heard
that Hinckley and Reed had been involved in a fee dispute, would have reasonably
understood Hinckley to mean that Reed overcharged her for legal services. In
context, Hinckley’s comments do not declare or imply a provably false factual
assertion; they merely offer an opinion as to the value of Reed’s legal services.
Hinckley’s opinion, though unflattering, is not defamatory. We therefore conclude
that Reed has failed to establish a probability of prevailing on a defamation claim
based on the statement that “He’s a crook.” [Citation omitted]

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 In Greenbaum v. Google, Inc., 18 Misc.3d 185, 845 N.Y.S.2d 695, 226 Ed. Law Rep. 237

(Sup 2007) the court applied a test to determine whether the alleged statements were made within

the context of serving the interests of the audience for which it is directed with fact-based opinion.

The test is so rigorous as to protect an anonymous internet commenter from being publicly

identified. As applied to the current case, the statements in the mailer are so clearly of a political

nature, dealing with matters typical to an election to an audience expecting to receive such

communication that the mailer is “not reasonably susceptible of a defamatory connotation.”

It is for the court in the first instance to resolve the legal question of whether
particular words are defamatory. (Golub v Enquirer/Star Group, 89 NY2d 1074
[1997]; Aronson v Wiersma, 65 NY2d 592 [1985].) The court finds that
Orthomom's own statements comment on a matter of interest to her religious
community and the public generally. Examining "the content of the whole
communication as well as its tone and its apparent purpose" (see Steinhilber v
Alphonse, 68 NY2d 283, 293 [1986]), as the court must do, the court further finds
that Orthomom's statements are not reasonably susceptible of a defamatory
connotation. Greenbaum's defamation claim against Orthomom reduces to the
insupportable assertion that Orthomom implied that Greenbaum is an anti-Semite
merely because Orthomom{**18 Misc 3d at 190} disagreed with Greenbaum's
position on the use of public funding for a program that could have affected the
Orthodox Jewish community.

Significantly, also, Orthomom's statements, as well as those of the anonymous

commentators, are protected opinion. Whether a statement expresses fact or opinion
is a question of law for the court, to "be answered on the basis of what the average
person hearing or reading the communication would take it to mean." (Id. at 290.)

"[I]n determining whether a particular communication is actionable, [the courts]

continue to recognize and utilize the important distinction between a statement of
opinion that implies a basis in facts which are not disclosed to the reader or listener,
and a statement of opinion that is accompanied by a recitation of the facts on which
it is based." (Gross v New York Times Co., 82 NY2d 146, 153 [1993] [citations
omitted].)

The latter ordinarily are not actionable because "a proffered hypothesis that is
offered after a full recitation of the facts on which it is based is readily understood
by the audience as conjecture." (Id. at 154.)

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 Under Dendrite, the court must not only review the proposed claims under a motion
to dismiss standard to determine whether the plaintiff has a prima facie cause of
action, but must also require the plaintiff to produce evidence sufficient to make a
prima facie showing in support of each of the elements of the cause of action. (Id.)
If the court concludes that the plaintiff has a prima facie cause of action, the court
must then "balance the defendant's First Amendment right of anonymous free
speech against the strength of the prima facie case presented and the necessity for
the disclosure of the anonymous defendant's identity." (342 NJ Super at 142, 775
A2d at 760-761; accord Best Western Intl., Inc. v Doe, 2006 WL 2091695, 2006
US Dist LEXIS 56014 [2006], supra [applying summary judgment standard].)
Other cases apply a lesser standard but require a showing of the merits of the
proposed cause of action before ordering disclosure of the identity of an anonymous
Internet speaker. (See Music Entertainment Inc., 326 F Supp 2d at 564 ["concrete
showing of a prima facie claim"]; Columbia Ins. Co., 185 FRD at 579 [motion to
dismiss standard]; Baxter, 2001 WL 34806203, *12, 2001 US Dist LEXIS 26001,
*38 ["a reasonable probability or a reasonable possibility of recovery" on the
claim].))

50 AM JUR § 221, at 577 n. 7.

The complaint does not allege any of the quoted articles contained in the publication which

form the basis of the opinion in the publication are false. These articles, by reputable publishers

Biscayne Times, and Miami New Times, and the pictures of the Mayor, an official police report

of the Mayor’s arrest, and the Mayor’s “like” of a social media post form the basis of the opinion,

parody, commentary, and name-calling in the publication.

CONCLUSION

Count I and II of Plaintiff Defilippo’s Complaint should be dismissed as a matter of law.

Respectfully submitted,

S/WILLIAM DOUGLAS MUIR

WILLIAM D. MUIR
ATTORNEY FOR THOR MEDIA GROUP, LLC
FL Bar No. 102766
DOUGLAS MUIR LLC
Mailing address:
3855 Stewart Ave
Miami, FL 33133
305-667-1767

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 305-608-8954
douglas@muirlaw.miami
wdmuir@gmail.com.

CERTIFICATE OF SERVICE

IT IS HEREBY CERTIFIED that a true and correct copy of the above and foregoing,

pursuantto Fla. R. Judicial Admin. 2.516, was furnished to all parties and counsel of record

via the E-Filing portal, USPS, and hand delivery.

DATED: September 5, 2019

S/WILLIAM DOUGLAS MUIR

WILLIAM D. MUIR

ATTORNEY FOR THOR MEDIA GROUP, LLC

FL Bar No. 102766
DOUGLAS MUIR LLC
Mailing address:
3855 Stewart Ave
Miami, FL 33133
305-667-1767
305-608-8954
douglas@muirlaw.miami
wdmuir@gmail.com.

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