Case 1:15-cv-20782-JEM Document 232 Entered on FLSD Docket 01/13/2016 Page 1 of 5

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
Case No. 15-cv-20782-MARTINEZ/GOODMAN
DENNIS MONTGOMERY,
Plaintiff,
v.
JAMES RISEN et al.,
Defendants.
________________________/
DEFENDANTS LIST OF AUTHORITIES PURSUANT TO THE COURTS POSTSANCTIONS HEARING ADMINISTRATIVE ORDER
Pursuant to this Courts January 6, 2016 Post-Sanctions Hearing Administrative Order,
ECF No. 217, Defendants hereby submit a reciprocal list of authorities for the proposition that a
defamation plaintiff must show falsity, regardless of whether recklessness is demonstrated. 1
Air Wisconsin Airlines Corp. v. Hoeper, 134 S. Ct. 852, 861 (One could in principle
construe the language of the actual malice standard to cover true statements made recklessly.
But we have long held, to the contrary, that actual malice entails falsity.), rehg denied, 134 S.
Ct. 1575 (2014).
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 775 (1986) ([A]s one might
expect given the language of the Court in New York Times, a public-figure plaintiff must show
the falsity of the statements at issue in order to prevail in a suit for defamation).
Herbert v. Lando, 441 U.S. 153, 176 (1979) ([T]he plaintiff must focus on the editorial
process and prove a false publication attended by some degree of culpability.).
1

Defendants believe District of Columbia law applies to Plaintiffs action, not Florida law.
Defs. Mot. Summ. J. 16, n.6, ECF No. 201. But, in any event, Defendants provide supportive
authorities applying the law of both states.
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Garrison v. Louisiana, 379 U.S. 64, 74 (1964) (We held in New York Times that a
public official might be allowed the civil remedy only if he establishes that the utterance was
false.).
Weyrich v. New Republic, Inc., 235 F.3d 617, 628 (D.C. Cir. 2001) (noting a district court
may limit discovery to the threshold issue of falsity before engaging in the more burdensome
discovery surrounding evidence of actual malice).
Levan v. Capital Cities/ABC, Inc., 190 F.3d 1230, 1238-39 (11th Cir. 1999) (Because
this case involves a public figure plaintiff, and the broadcast was a matter of public concern, [the
plaintiffs] are required to prove not only that the statements alleged were defamatory and false,
but also that [the defendant] acted with actual malice.) (internal citations omitted).
Secord v. Cockburn, 747 F. Supp. 779, 783 (D.D.C. 1990) (stating that [i]n order to
prevail in a libel suit the plaintiff must demonstrate that the statements complained of are (1)
defamatory, (2) false, (3) statements of fact (and not opinion), and (4) made with the requisite
degree of fault).
Morgan v. Tice, 862 F.2d 1495, 1500 (11th Cir. 1989) (where public plaintiff made no
effort to show that the [alleged defamatory statements] were false, he failed to establish falsity
and actual malice).
Tavoulareas v. Piro, 817 F.2d 762, 794 (D.C. Cir. 1987) ([D]efamation plaintiffs cannot
show actual malice in the abstract; they must demonstrate actual malice in conjunction with a
false defamatory statement.)
Hunt v. Liberty Lobby, 720 F.2d 631, 645 (11th Cir. 1983) (noting that, where falsity was
found by a jury, and unchallenged on appeal, court then evaluates whether the libel defendant
knew it was false or entertained serious doubts about its truth)

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Colodny v. Iverson, Yoakum, Papiano & Hatch, 936 F. Supp. 917, 923 (M.D. Fla. 1996)
(in case applying actual malice fault standard, holding that [j]ust like the other elements, the
element of falsity is an essential part of the plaintiff's prima facie case of defamation).
Doe No. 1 v. Burke, 91 A.3d 1031, 1044 (D.C. 2014) (defamation plaintiff must show
that the defendant made a false and defamatory statement concerning the plaintiff . . . and [i]f
the plaintiff is a public figure, [] the fault component embodied in the third defamation element
is heightened; the plaintiff must then show by clear and convincing evidence that the defendants
defamatory statement was published with actual malice).
In re Standard Jury Instructions In Civil Cases-Report No. 09-01 (Reorganization of the
Civil Jury Instructions), 35 So. 3d 666, 725 (Fla. 2010) (the only jury instruction on defamation
liability to invoke Floridas truth and good motives defense is for private plaintiff cases that do
not involve publication on a matter of public concern).
Jews For Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008) (Defamation has the
following five elements: (1) publication; (2) falsity; (3) actor must act with knowledge or
reckless disregard as to the falsity on a matter concerning a public official, or at least negligently
on a matter concerning a private person; (4) actual damages; and (5) statement must be
defamatory.) (emphasis added); id. at n.13 (noting the risk of constitutional infringement of
free speech by imposing liability for publication of a true statement, citing Fla. Const. art. I, 4,
but concluding that, in a defamation by implication claim, the matter charged as defamatory is
not the literally true statement, but the false impression given by the juxtaposition or omission of
facts.) (emphasis added).
Hon. Robert D. Sack, Sack on Defamation 3:3.2 at 3-6 3-7 (citing Fla. Const. art 1,
4, and explaining that, [b]y constitution, statute, or case law in a substantial minority of

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jurisdictions, truth is a bar to recovery for defamation only if the communication is published
with good motives and for justifiable ends but that [t]he qualification is unconstitutional); id.
at 3-9 (noting that [c]ourts that have found it necessary to examine the provisions of state
constitutions and laws requiring even truthful speech to be made with good motives and for
justifiable ends have had little trouble striking them down as unconstitutional as applied to civil
defamation cases against the media by relying on the Garrison line of cases)

Dated: January 13, 2016

Respectfully submitted,

s/Brian W. Toth
Sanford L. Bohrer
Florida Bar No. 160643
sbohrer@hklaw.com
Brian W. Toth
Florida Bar No. 57708
brian.toth@hklaw.com
HOLLAND & KNIGHT LLP
701 Brickell Avenue, Suite 3300
Miami, Florida 33131
Telephone: (305) 374-8500
Fax: (305) 789-7799
and
Laura R. Handman (admitted pro hac vice)
laurahandman@dwt.com
Lisa B. Zycherman (admitted pro hac vice)
lisazycherman@dwt.com
DAVIS WRIGHT TREMAINE LLP
1919 Pennsylvania Ave., NW, Suite 800
Washington, D.C. 20006
Tel.: (202) 973-4200
Fax: (202) 973-4499
Counsel for Defendants

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CERTIFICATE OF SERVICE
I certify that on January 13, 2016, I filed this document with the Clerk of Court using
CM/ECF, which will serve this document on all counsel of record.
s/Brian W. Toth

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