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Maverick
Maverick, Attorney
Category: Legal
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Experience:  20 years experience as a civil trial and appellate lawyer
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What effect would a racist statement against a person Y have

Customer Question

What effect would a racist statement against a person Y have on the potential damages award against a person X accused of making defamatory statements?
Scenario: A Florida Condo Director X running for the Board makes a remark to another person, a colleague running on the same slate about the 3 opposing candidates. He whispers conspiratorially to Y: "You know all 3 of these candidates are Jews".
Y responds: I know, and by the way, I happen to be a Jew also.
At which point Y tries to "walk back" his remarks by saying "All I meant is that Jews stick together".
Some months later X makes defamatory remarks to Z in an email about Y, to the effect that Y "took money without Board approval that should be returned by Y ".
The specific words of the defamation have already been deemed by counsel sufficient to qualify as libel.
Question:
1. The money in question was a bonus given to the Condo Manager out of a Condo construction fund with the President and Treasurer agreeing it was appropriate. Assuming that the defamation is a given, does the racist remark create an "enhancement" of the potential damages?
2. Assuming the defamation is per se, what kind of damages might be awardable?
3. How much more, if any, would the racist remark enhance the damages.
Submitted: 11 months ago.
Category: Legal
Expert:  Maverick replied 11 months ago.

Welcome! My name is Maverick. Please give me a few minutes to analyze and/or research your inquiry and I will be back.

Expert:  Maverick replied 11 months ago.

Answer to Q#2:

2. Both actual damages and punitive damages. The Fourth District Court of Appeal, affirmed the punitive damages award, and set forth the following interesting discussion in its supporting opinion. …[W]hen the claim is defamation per se, liability itself creates a conclusive legal presumption of loss or damage and is alone sufficient for the jury to consider punitive damages. […] To sum up, Florida's unusually high protection of personal reputation derives from the common consent of humankind and has ancient roots. It is highly valued by civilized people. Our state constitution and common law powerfully support it. This is a value as old as the Pentateuch and the Book of Exodus, and its command as clear as the Decalogue: “Thou shall not bear false witness against thy neighbor.” The personal interest in one's own good name and reputation surpasses economics, business practices or money. It is a fundamental part of personhood, of individual standing and one's sense of worth. In short, the wrongdoing underlying the punitive damages in this case has Florida law's most severe condemnation, its highest blameworthiness, its most deserving culpability. For slander per se, reprehensibility is at its highest. Lawnwood, 43 So. 3d at 727-29, review denied, 36 So. 3d 84 (Fla. 2010), and cert. denied,***** 905 (U.S. 2011)

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Expert:  Maverick replied 11 months ago.

Answer to Q#3:

If race was a deemed to be a relevant factor, then there is no way to determine how it would affect an award as it depends on they type of jury/finder of fact that you end up with. For example, a jury that may have many ethnic minorities on it may awards much more in punitive damages while one without so many may award very little. The difference can exceed 100% or more. There is a fee-based service that complies jury verdicts which might shed some light on this for you. Here is the link.

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Expert:  Maverick replied 11 months ago.

Answer to Q1:

Under Florida law, the elements of a defamation claim are:

  1. the defendant published a false statement;
  2. about the plaintiff;
  3. to a third party; and
  4. the falsity of the statement caused injury to the plaintiff.

Also, in Florida, a statement amounts to defamation per se if it accuses the plaintiff of committing a crime or imputes to the plaintiff conduct, characteristics, or a condition incompatible with the proper exercise of his or her lawful business, trade, profession, or office.

Based on the foregoing elements, I do not see where a racial remark bears directly on a defamation claim. But, it may have an indirect outcome/effect on the jury's filter when deciding the case. Further, outside of certain limited areas, such as employment or receiving service in public establishments, racial speech in protected under the 1st Amendment.

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Customer: replied 11 months ago.

On the answer delivered at 4:19 - you offer a link, but none is provided. An oversight no doubt.

Expert:  Maverick replied 11 months ago.

Sorry, not sure what happened. Here is the link.

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