qualified privilege in Florida

2016See Fridovich v. Fridovich, 598 So. 2d 65, 68-69 (Fla. 1992) (holding that a qualified privilege exists for defamatory statements made to police when such statements are not made maliciously); Burns v. GCC Beverages, Inc., 502 So. 2d 1217, 1220 (Fla. 1986) (holding that a company was not liable for malicious prosecution when an - 19 - employee, in good faith and without specifically requesting arrest, reported suspected criminal activity to law enforcement); Myers v. Jim Russo Prison Ministries, Inc., 3 So. 3d 411, 412 (Fla. 2d DCA 2009) (applying the qualified privilege to slander arising fro

2016See Fridovich v. Fridovich, 598 So.2d 65, 68-69 (Fla.1992) (holding that a qualified privilege exists' for defamatory statements made to police', when such statements are' not made maliciously); Burns v. GCC Beverages, Inc., 502 So.2d 1217, 1220 (Fla.1986) (holding that a company was not liable for malicious prosecution when an employee, in good faith and without specifically requesting arrest, reported suspected criminal activity to law enforcement); Myers v. Jim Russo Prison Ministries, Inc., 3 So.3d 411, 412 (Fla. 2d DCA 2009) (applying the qualified privilege to slander arising from false

2024Airlines, Inc. v. Geddes, 960 So. 2d 830, 833 (Fla. 3d DCA 2007) (“[O]ne who publishes defamatory matter concerning another is not liable for the publication if the matter is published upon an occasion that makes it conditionally privileged and the privilege is not abused.”); Cape Publ’ns, Inc. v. Reakes, 840 So. 2d 277, 280 (Fla. 5th DCA 2003) (“The issue of whether this qualified privilege exists is not a jury question when the circumstances surrounding the communication are undisputed; the question should be decided by the court.”); Nodar v. Galbreath, 462 So. 2d 803, 810 (Fla. 1984) (“The

2013See Nodar v. Galbreath, 462 So.2d 803, 810 (Fla.1984) (“The privilege ... places upon the plaintiff the burden of proving express malice — that is, malice in fact as defined by the common-law doctrine of qualified privilege.”).

2018In answering the certified question, the Florida Supreme Court noted that in Tucker v. Resha, 648 So. 2d 1187 (Fla. 1994), the Court had “examined whether to expand the category of non-final appealable orders to include orders denying summary judgment based on a qualified immunity claim,” and because of the nature of the rights involved, interlocutory review must be available to an individual whose claim of qualified immunity was denied by the trial court.

2018In answering the certified question, the Florida Supreme Court noted that in Tucker v. Resha, 648 So. 2d 1187 (Fla. 1994), the Court had “examined whether to expand the category of non-final appealable orders to include orders denying summary judgment based on a qualified immunity claim,” and because of the nature of the rights involved, interlocutory review must be available to an 19 individual whose claim of qualified immunity was denied by the trial court.

2017And in DelMonico, the Court applied the qualified privilege to false statements about one of the parties made during informal interviews with potential witnesses in an ongoing litigation, Del Monico, 116 So.3d at 1209 . ■In each of these litigation privilege cases, the privilege was applied to communications made to another (the court, parties, law enforcement officers, and witnesses) during an investigation or as part of judicial proceedings. .

2017Although statements and acts that are not covered by absolute immunity under the litigation privilege may still be protected by qualified immunity under the litigation privilege if they are pertinent to the judicial proceeding, see DelMonico, 116 So.3d at 1213-14, 1217-20 , we decline to reach the qualified immunity issue because it was not raised below.

2019A. Qualified Immunity "Qualified immunity protects government actors performing discretionary functions from liability and suit for civil damages unless their conduct violates clearly established federal statutory or constitutional rights." Bd. of Regents v. Snyder, 826 So. -6- 2d 382, 389-90 (Fla. 2d DCA 2002) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

2008We have recognized that in Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982), the Supreme Court “held that government officials performing discretionary functions are protected by qualified immunity from liability for civil damages in section 1983 actions unless a reasonable person would have known that the questionable conduct violated clearly established law.” Brescher v. Pirez, 696 So.2d 370, 373 (Fla. 4th DCA 1997); see generally Fernander v. Bonis, 947 So.2d 584, 588 (Fla. 4th DCA 2007) (“ ‘[Qualified immunity for government officials is the rule, liability and t

2011Collis, 508 So.2d 380, 383 (Fla. 1st DCA 1987) (“A qualified privilege to interfere is not negated by concomitant evidence of malice.

1993Appellant thus seems correct in asserting that even where a qualified privilege exists, i.e. "statements of a citizen to a political authority regarding matters of public concern," that privilege carries with it the "obligation to employ means that are not improper," Turkey Creek, Inc. v. Londono, 567 So.2d at 948 ; McCurdy v. Collis, 508 So.2d at 384 and "the mode, manner or purpose of the communication would go to the question of abuse or forfeiture of the privilege." Nodar, 462 So.2d at 809 .

2003Mobile Homes, Inc., 344 So.2d 279 (Fla. 1st DCA 1977) (holding statement made by plaintiff's former employer to another that plaintiff was a "thief and a crook" who "stole him blind" was slander per se, if false). "`Qualified privilege' is a defense and the burden of proving it rests with the defendant." Glynn, 383 So.2d at 776 .

1997See Glynn v. City of Kissimmee, 383 So.2d 774 (Fla. 5th DCA 1980) (publications which impute to another characteristics or conditions incompatible with the proper exercise of one's business, trade, profession or office are slanderous per se) (citing Drennen v. Westinghouse Electric Corp., 328 So.2d 52 (Fla. 1st DCA 1976)); Axelrod v. Califano, 357 So.2d 1048 (Fla. 1st DCA 1978). [2] While there was no showing Beer bore any malice towards Randolph, the existence of malice towards Hudek would dissolve the qualified privilege.

1991Abraham v. Baldwin, 52 Fla. 151 , 42 So. 591 (1906); Nodar v. Galbreath, 462 So.2d 803 (Fla. 1984).

1984See Abraham v. Baldwin, 52 Fla. 151 , 42 So. 591 (1906). [4] This general rule of privilege finds expression in several established common-law legal grounds for holding that the defendant's statements to the school board were protected by a qualified privilege.

2019See Vermette v. Ludwig, 707 So. 2d 742, 745 (Fla. 2d DCA 1997); Town of Southwest Ranches v. Kalam, 980 So. 2d 1121, 1123 (Fla. 4th DCA 2008).

2002Id.; see also Vermette, 707 So.2d at 744 .

2005Tribal *358 sovereign immunity, like the qualified immunity enjoyed in civil rights cases by public officials, "involves ` immunity from suit rather than a mere defense to liability,'" which is an "entitlement" that "`is effectively lost if a case is erroneously permitted to go to trial.'" Tucker v. Resha, 648 So.2d 1187, 1189 (Fla.1994) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985)).

2005Tribal *358 sovereign immunity, like the qualified immunity enjoyed in civil rights cases by public officials, "involves ` immunity from suit rather than a mere defense to liability,'" which is an "entitlement" that "`is effectively lost if a case is erroneously permitted to go to trial.'" Tucker v. Resha, 648 So.2d 1187, 1189 (Fla.1994) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985)).

2018Constr., Inc. v. Mandarin Utils., Inc. , 440 So.2d 428 , 430 (Fla. 1st DCA 1983) ("Where a qualified privilege exists, the plaintiff must prove express malice or malice in fact in order to recover.").

2018Constr., Inc. v. Mandarin Utils., Inc. , 440 So.2d 428 , 430 (Fla. 1st DCA 1983) ("Where a qualified privilege exists, the plaintiff must prove express malice or malice in fact in order to recover.").

2024Consistent with these distinctions, we held that a probationer “may assert only a qualified privilege against compulsory self[-]incrimination at the probation violation hearing.” Id. at 503 (citing Watson v. State, 388 So. 2d 15 (Fla. 4th DCA 1980) (holding a probationer may not validly invoke a Fifth 5 Amendment privilege to refuse to answer questions at a probation violation hearing regarding non-criminal conduct alleged to constitute the violation of probation, and the trial court may infer a probationer's silence, or refusal to answer questions, as evidence of noncompliance with the terms

2020See Watson v. State, 388 So. 2d 15 (Fla. 4th DCA 1980) (holding a probationer may not validly invoke a Fifth Amendment privilege to refuse to answer questions at a probation violation hearing regarding non-criminal conduct alleged to constitute the violation of probation, and the court may infer a probationer’s refusal to answer questions as evidence of non- 15 compliance with the terms of his probation (citing State v. Heath, 343 So. 2d 13 (Fla. 1977))).

2024See Logan v. Morgan, Lewis & Bockius LLP, 350 So. 3d 404 , 414 (Fla. 2d DCA 2022) (quoting Blatt v. Green, Rose, Kahn & Piotrkowski, 456 So. 2d 949, 951 (Fla. 3d DCA 1984)); see also Morsani, 663 So. 2d at 657 ("Where there is a qualified privilege to interfere with a business relationship, the privilege carries with it the obligation to employ means that are not improper.

2024See Logan v. Morgan, Lewis & Bockius LLP, 350 So. 3d 404 , 414 (Fla. 2d DCA 2022) (quoting Blatt v. Green, Rose, Kahn & Piotrkowski, 456 So. 2d 949, 951 (Fla. 3d DCA 1984)); see also Morsani, 663 So. 2d at 657 ("Where there is a qualified privilege to interfere with a business relationship, the privilege carries with it the obligation to employ means that are not improper.

2024See Logan v. Morgan, Lewis & Bockius LLP, 350 So. 3d 404 , 414 (Fla. 2d DCA 2022) (quoting Blatt v. Green, Rose, Kahn & Piotrkowski, 456 So. 2d 949, 951 (Fla. 3d DCA 1984)); see also Morsani, 663 So. 2d at 657 ("Where there is a qualified privilege to interfere with a business relationship, the privilege carries with it the obligation to employ means that are not improper.

2024See Logan v. Morgan, Lewis & Bockius LLP, 350 So. 3d 404 , 414 (Fla. 2d DCA 2022) (quoting Blatt v. Green, Rose, Kahn & Piotrkowski, 456 So. 2d 949, 951 (Fla. 3d DCA 1984)); see also Morsani, 663 So. 2d at 657 ("Where there is a qualified privilege to interfere with a business relationship, the privilege carries with it the obligation to employ means that are not improper.

1997Co. v. Morejon, 561 So.2d 577, 581 (Fla.1990) ("The public `has a right to every man's evidence'."). [3] At the beginning of its opinion in Morejon, the court said: "We review Miami Herald Publishing Co. v. Morejon, 529 So.2d 1204 (Fla. 3d DCA 1988), in which the district court certified the following question as one of great public importance: [W]hether a news journalist has a qualified privilege under the First Amendment to the United States Constitution, as interpreted by the Florida Supreme Court in Morgan v. State, 337 So.2d 951 (Fla. 1976) and Tribune Co. v. Huffstetler, 489 So.2d 722 (F

1997In Tribune Co. v. Huffstetler, 489 So.2d 722 (Fla.1986), and Morgan v. State, 337 So.2d 951 (Fla. 1976), however, the supreme court did approve a qualified privilege for confidential sources. [4] Branzburg, 408 U.S. at 679 , 92 S.Ct. at 2655-2656 .

1997See Glynn v. City of Kissimmee, 383 So.2d 774 (Fla. 5th DCA 1980) (publications which impute to another characteristics or conditions incompatible with the proper exercise of one's business, trade, profession or office are slanderous per se) (citing Drennen v. Westinghouse Electric Corp., 328 So.2d 52 (Fla. 1st DCA 1976)); Axelrod v. Califano, 357 So.2d 1048 (Fla. 1st DCA 1978). [2] While there was no showing Beer bore any malice towards Randolph, the existence of malice towards Hudek would dissolve the qualified privilege.

1984Although Rogers’s statement is arguably protected by a qualified privilege, Abram v. Odham, 89 So.2d 334 (Fla.1956) (gubernatorial candidate had qualified privilege to make statements in response to and in defense of statements made by the pollster about his candidacy), there are questions of fact as to whether the privilege existed in this particular instance and whether Rogers’s statement, even if not shown to have been made with malice, exceeded the scope of the privilege, see Myers v. Hodges, 53 Fla. 197 , 44 So. 357 (1907); Glynn v. City of Kissimmee, 383 So.2d 774 (Fla. 5th DCA 1980); Ax

1998Petitioners assert that under the First Amendment, Bianchi was entitled to a qualified privilege from testifying and that the trial court erred in not applying the three-step balancing test adopted by this court in Gadsden County Times, Inc. v. Horne, 426 So.2d 1234 (Fla. 1st DCA), rev. denied, 441 So.2d 631 (Fla. 1983).

1998Accordingly, for the reasons well expressed by Judge Klein in his concurring opinion in Kidwell, 696 So.2d at 406-409 , in the instant case I would hold that the reporter is entitled to a qualified privilege from testifying subject to the balancing test adopted in Gadsden County Times, Inc. v. Horne, 426 So.2d 1234 (Fla. 1st DCA), rev. denied, 441 So.2d 631 (Fla. 1983).

1986W. 246 (June 6, 1986); Morgan v. State, 337 So. 2d 951 (Fla. 1976) (reporter’s contempt conviction for refusal to testify before a grand jury reversed), Miller v. Transamerican Press, 621 F.2d 721 , modified on rehearing 628 F.2d 932 (Fifth Cir. 1980) (recognizing a qualified privilege for confidential sources in a libel suit).

1985See, Morgan v. State, 337 So.2d 951 (Fla. 1976) (reporter’s contempt conviction for refusal to testify before a grand jury reversed); State v. Transamerican Press, 621 F.2d 721 , modified on rehearing 628 F.2d 932 (5th Cir. 1980) (recognizing a qualified privilege for confidential sources in a libel suit).

1997In Tribune Co. v. Huffstetler, 489 So.2d 722 (Fla.1986), and Morgan v. State, 337 So.2d 951 (Fla. 1976), however, the supreme court did approve a qualified privilege for confidential sources. [4] Branzburg, 408 U.S. at 679 , 92 S.Ct. at 2655-2656 .

1997In Tribune Co. v. Huffstetler, 489 So.2d 722 (Fla.1986), and Morgan v. State, 337 So.2d 951 (Fla. 1976), however, the supreme court did approve a qualified privilege for confidential sources. [4] Branzburg, 408 U.S. at 679 , 92 S.Ct. at 2655-2656 .

1956The same case says further, however, that "the malice which vitiates a qualified privilege must be actual and not merely inferred from falsity etc." In Leonard v. Wilson, 150 Fla. 503 , 8 So.2d 12 , it was said that if a communication was privileged, the presumption is that it was made without malice.

1956The same case says further, however, that "the malice which vitiates a qualified privilege must be actual and not merely inferred from falsity etc." In Leonard v. Wilson, 150 Fla. 503 , 8 So.2d 12 , it was said that if a communication was privileged, the presumption is that it was made without malice.

2024Airlines, Inc. v. Geddes, 960 So. 2d 830, 833 (Fla. 3d DCA 2007) (“[O]ne who publishes defamatory matter concerning another is not liable for the publication if the matter is published upon an occasion that makes it conditionally privileged and the privilege is not abused.”); Cape Publ’ns, Inc. v. Reakes, 840 So. 2d 277, 280 (Fla. 5th DCA 2003) (“The issue of whether this qualified privilege exists is not a jury question when the circumstances surrounding the communication are undisputed; the question should be decided by the court.”); Nodar v. Galbreath, 462 So. 2d 803, 810 (Fla. 1984) (“The

2018"Once it is determined that a qualified privilege exists, a further examination is necessary to determine whether the speaker lost the privilege because of express malice." Cape Publ'ns, Inc. v. Reakes , 840 So.2d 277 , 281 (Fla. 5th DCA 2003). *47 Here, the Rollands contend that any error was harmless and not prejudicial because the trial court instructed the jury on the law enforcement qualified privilege.

2002What this means in practice is that “whether an official protected by qualified immunity may be held personally hable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness’ of the action, assessed in fight of tbe legal rules that were ‘clearly .established’ at the time it was taken.” Anderson v. Creighton, 483 U.S. 635, 639 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987) (citing Harlow, supra, at 819 , 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 ); see also Graham v. Connor, 490 U.S. 386, 397 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989).

1998Qualified immunity protection applies to all except the plainly incompetent or those who knowingly violate the law, Malley, 475 U.S. at 341 , 106 S.Ct. 1092 , and turns upon the "objective legal reasonableness" of the official's action assessed in light of the legal rules that were "clearly established at the time the action was taken." Anderson, 483 U.S. at 639, 107 S.Ct. 3034 (citing Harlow, 457 U.S. at 818-19 , 102 S.Ct. 2727 ).

1986W. 246 (June 6, 1986); Morgan v. State, 337 So. 2d 951 (Fla. 1976) (reporter’s contempt conviction for refusal to testify before a grand jury reversed), Miller v. Transamerican Press, 621 F.2d 721 , modified on rehearing 628 F.2d 932 (Fifth Cir. 1980) (recognizing a qualified privilege for confidential sources in a libel suit).

1985See, Morgan v. State, 337 So.2d 951 (Fla. 1976) (reporter’s contempt conviction for refusal to testify before a grand jury reversed); State v. Transamerican Press, 621 F.2d 721 , modified on rehearing 628 F.2d 932 (5th Cir. 1980) (recognizing a qualified privilege for confidential sources in a libel suit).

2024Consistent with these distinctions, we held that a probationer “may assert only a qualified privilege against compulsory self[-]incrimination at the probation violation hearing.” Id. at 503 (citing Watson v. State, 388 So. 2d 15 (Fla. 4th DCA 1980) (holding a probationer may not validly invoke a Fifth 5 Amendment privilege to refuse to answer questions at a probation violation hearing regarding non-criminal conduct alleged to constitute the violation of probation, and the trial court may infer a probationer's silence, or refusal to answer questions, as evidence of noncompliance with the terms

2020See Watson v. State, 388 So. 2d 15 (Fla. 4th DCA 1980) (holding a probationer may not validly invoke a Fifth Amendment privilege to refuse to answer questions at a probation violation hearing regarding non-criminal conduct alleged to constitute the violation of probation, and the court may infer a probationer’s refusal to answer questions as evidence of non- 15 compliance with the terms of his probation (citing State v. Heath, 343 So. 2d 13 (Fla. 1977))).

2024Id. at 1218 (quoting Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins., 639 So. 2d 606, 607 (Fla. 1994)).

2013Providing a qualified privilege under the circumstances of this case, which involves an attorney’s ex-parte, out-of-court questioning of several nonparty witnesses, is sufficiently protective of the competing policies underpinning the privilege: “[T]he right of an individual to enjoy a reputation unimpaired by defamatory attacks versus the right of the public interest to a free and full disclosure of facts in the conduct of judicial proceedings.” Levin, 639 So.2d at 608 .