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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION

KEVIN FOLTA, Ph.D.,
Plaintiff,
v.

Case No. 1:17cv246-MW/GRJ

THE NEW YORK TIMES
COMPANY and ERIC LIPTON,
Defendants.
______________________________/
ORDER GRANTING DEFENDANTS’ MOTION
FOR FINAL SUMMARY JUDGMENT
This is a defamation case. In September 2015, Defendant The New York
Times Company (“NYT”) published an article written by Defendant Lipton
(“the Article”). It appeared both online and on the Sunday edition’s front page.
The Article purported to document relationships cultivated by both
biotechnology and organics companies with public university academics. It
focused especially on the effects of these relationships in debates about the
safety and regulation of genetically modified organism (“GMO”) food products.
Defendants discussed and quoted Plaintiff Kevin Folta, Ph.D., professor and
former chairman of the Horticultural Sciences Department at the University

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of Florida (“UF”), in the Article. Plaintiff now brings a claim of defamation
against the Defendants for numerous statements made therein. 1
Defendant moves for summary judgment by asserting a range of
affirmative defenses. Among them are that the statements complained of are
true or substantially true; are not susceptible to a defamatory meaning; are
not “of and concerning” Plaintiff; are protected speech, either under the fair
report privilege or as pure opinion; and/or are barred by the applicable statute
of limitations. 2
This Court has considered, without hearing, Defendants’ Motion for
Final Summary Judgment, ECF No. 65. For the reasons set forth below, the
motion is GRANTED.
I
Summary judgment is appropriately granted when “the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A “genuine”
dispute exists “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). Facts are “material” with respect to the substantive law if they
Plaintiff’s Amended Complaint also included an intentional infliction of emotional distress
claim, ECF No. 19, at 25–26, but this Court dismissed it on a prior motion. ECF No. 34, at 6.
2 Defendants also assert that Florida has rejected the false light tort. ECF No. 65, at 3. As
Plaintiff does not advance a separate false light cause of action, ECF No. 74, at 45, this Court
does not address that argument.
1

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form disputes that are not “irrelevant or unnecessary” and have the potential
to “affect the outcome of the suit.” Id. A nonmoving party’s failure to provide
sufficient evidence of an element for which it bears the burden of proof at trial
mandates the entry of summary judgment for the moving party, “since a
complete failure of proof concerning an essential element . . . necessarily
renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986).
As it must, this Court accepts the facts in the light most favorable to
Plaintiff. See Galvez v. Bruce, 552 F.3d 1238, 1241 (11th Cir. 2008). All
reasonable doubts and inferences about the facts are resolved in favor of
Plaintiff as the nonmoving party.
II
This Court first addresses Florida’s “fair report” privilege. Defendants
argue that all but one 3 of the thirty-two statements at issue are protected by
Florida’s fair report privilege. ECF No. 65, at 17. The privilege’s application is
a question of law. See Huszar v. Gross, 468 So. 2d 512, 515–16 (Fla. 1st DCA
1985) (“[W]hen the facts and circumstances of a communication are revealed,

The only statement excluded is Statement 1, which is based on Defendant Lipton’s interview
of Plaintiff, rather than the UF-produced emails. However, this Court has determined that
the operative portions of two other statements (Statements 17 & 31) are also likely quotes
from interviews and so not subject to the fair report privilege.
3

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the issue of whether a privilege has been established is a question of law for
the court to decide.”).
The fair report privilege is news media’s qualified privilege “to report
accurately on information received from government officials.” Rasmussen v.
Collier Cty. Publ’g Co., 946 So. 2d 567, 570–71 (Fla. 2d DCA 2006). Florida
courts have borrowed from the Restatement (Second) of Torts § 611 in
describing the privilege. See, e.g., Woodard v. Sunbeam Television Corp., 616
So. 2d 501, 502 (Fla. 3d DCA 1993) (quoting Restatement (Second) of Torts §
611 cmt. b (Am. Law Inst. 1977)) (“If the report of a public official proceeding
is accurate or a fair abridgement, an action cannot constitutionally be
maintained, either for defamation or for invasion of the right of privacy.”).
Although its first uses were related to official proceedings—like court
proceedings—the privilege has since been expanded to cover a wide range of
government-derived sources.
Courts have offered three different policy rationales to support the
privilege. Medico v. Time, Inc., 643 F.2d 134, 140 (3d Cir. 1981). The first, the
agency rationale, casts the reporter as an agent for the public; the reporter
stands in “for persons who had a right to attend, and informs them of what
they might have seen for themselves.” Id. at 141. The second rationale is a
theory of public supervision—meaning that publicity provides security for and
promotes the “proper administration of justice.” Id. (quoting Cowley v. Pulsifer,
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137 Mass. 392, 394 (1884)). Finally, the third rationale concerns the legitimate
interest of the public in important matters. Id. at 142.
A
The threshold question presented by Defendants’ argument for
application of the fair report privilege is whether Plaintiff’s emails—as
produced by UF—trigger the privilege. Defendants argue that they do trigger
the privilege, in either of two ways. ECF No. 65, at 22. First, Defendants assert
that “government disclosure triggers fair report privilege protections”—if the
government produced it, then it can support the fair report privilege. Id.
Alternatively, Defendants argue that the emails at issue are “public records”
under Florida law because Plaintiff is a public employee and the emails were
created as a part of his official business. Id. at 23–24. Defendants stress that
Plaintiff’s job description as a land-grant scientist includes engagement with
industry and the public. Id.
Plaintiff opposes Defendants’ assessment of the trigger standard and
focuses on the definition of “public records” in Florida’s Public Records Law.
ECF No. 74, at 20–21. Public records are defined as essentially all “material

. . . made or received pursuant to law or ordinance or in connection with the
transaction of official business by any agency.” § 119.011(12), Fla. Stat. (2018).
Plaintiff further indicates that to be “public records,” documents must be both
related to “official agency business” and “intended as final evidence of the
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knowledge to be recorded.” ECF No. 74, at 20 (quoting Shevin v. Byron,
Harless, Schaffer, Reid & Assocs., 379 So. 2d 633, 640 (Fla. 1980)). Plaintiff
argues that Defendants allege that he had a “sort of side-relationship” with
industry and thus that the related emails are not official business. ECF No.
74, at 22–23 (emphasis in original).
Because most documents produced by government entities also fall
within the definition of public records, the case law does not clearly address
the actual hook or trigger for the fair report privilege in Florida. See, e.g.,
Rasmussen, 946 So. 2d at 570–71 (basing privilege on “information received
from government officials,” like the “contents of official documents” and
“matters of public record, including criminal informations, the Governor’s
executive orders appointing a special prosecutor, Mr. Rasmussen’s plea
agreement, and reports by government officials that Mr. Rasmussen pleaded
to ‘related charges’”). Here, coming to an ultimate decision on the proper hook
is unnecessary; both of Defendants’ theories lead to the same answer. First,
although Plaintiff opposes Defendants’ government production trigger theory,
all parties would concede that the source documents related to Plaintiff were
produced by UF, a state agency of Florida. 4 See, e.g., ECF No. 65, at 22 n.14.

They would also likely concede that the documents relating to the other noted academics—
Drs. Benbrook, Chassy, and Shaw—were also produced by public universities, each agencies
of their resident state.

4

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And second, this Court cannot avoid the conclusion that the Plaintiff’s
UF emails are public records. The Florida Constitution identifies access to
public records as a fundamental constitutional right for Florida citizens. The
Sunshine Amendment (Article I, Section 24(a)) provides that “[e]very person
has the right to inspect or copy any public record made or received in
connection with the official business of any public body, officer, or employee of
the state, or persons acting on their behalf.” Fla. Const. art. I, §24(a).
The Florida legislature has effectuated this commitment. See § 119.01,
Fla. Stat. (2018) (“It is the policy of this state that all state, county, and
municipal records are open for personal inspection and copying by any
person.”). And Florida courts have repeatedly recognized it. See, e.g., City of
Riviera Beach v. Barfield, 642 So. 2d 1135, 1136 (Fla. 4th DCA 1994) (noting
that “[t]he general purpose of the Florida Public Records Act is to open public
records so that Florida's citizens can discover the actions of their government”).
In keeping with this intention, the Public Records Act “is to be construed
liberally in favor of openness, and all exemptions from disclosure are to be
construed narrowly and limited in their designated purpose.” Bd. of Trustees,
Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120, 125 (Fla. 2016)
(quoting Lightbourne v. McCollum, 969 So.2d 326, 332–33 (Fla. 2007)).
Exceptions are made only for “public records provided by statute to be
confidential or which are expressly exempted by general or special law from
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disclosure.” Miami Herald Publ’g Co. v. City of N. Miami, 452 So. 2d 572, 573
(Fla. 3d DCA 1984), approved sub nom. City of N. Miami v. Miami Herald
Publ’g Co., 468 So. 2d 218 (Fla. 1985).
Electronic records are decisively included in the public records definition.
See § 119.01, Fla. Stat. (“Automation of public records must not erode the right
of access to those records.”). Emails sent to or from a public university email
address—and related to the official business of that university—are public
records. Rhea v. Dist. Bd. of Trustees of Santa Fe Coll., 109 So. 3d 851, 855–56
(Fla. 1st DCA 2013). Personal emails present on a government agency server
are not public records, as “[t]he determining factor is the nature of the record,
not its physical location.” State v. City of Clearwater, 863 So. 2d 149, 154 (Fla.
2003). Plaintiff’s emails are related to official agency business. Although
Plaintiff opposes Defendants’ characterization of his emails, ECF No. 74, at
22–23, this argument is undercut by his own assertions of the centrality of
public and industry engagement to his position at UF. See, e.g., ECF No. 6441, at 2 (detailing duties and referring to letter from Plaintiff’s “direct
supervisor”); ECF No. 64-40, at 1–2 (letter from Plaintiff’s supervisor
indicating that his position requires interpreting and delivering scientific
results to the public as well as “integrat[ing] with industry and interact[ing]
with companies”).

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Plaintiff’s argument that his emails are not public records because they
are not “intended to perpetuate, communicate, or formalize knowledge of some
type” is also unpersuasive. ECF No. 74, at 21 (quoting Shevin, 379 So. 2d at
640). The court in Shevin recognized that inter- and intra-office memoranda
could constitute public records, even when only in draft form or when directed
to file. Shevin, 379 So. 2d at 640. Only “rough drafts, notes to be used in
preparing some other documentary material, and tapes or notes taken by a
secretary as dictation” were provided as examples of items falling outside the
public records label. Id.
Plaintiff’s attempt to force his emails to fit the “precursor” records
framework is a paradigmatic example of trying to put a square peg in a round
hole. Plaintiff’s emails are communications and transmissions of knowledge to
industry players and other academics, not the occasional Post-it note reminder
to himself. Plaintiff could mount a formidable argument that draft calendar
invites or draft emails are not public records—just as only the final, mailed
version of a hard copy letter would be a public record, and not the earlier
crumpled, handwritten drafts tossed haphazardly towards the office waste bin.
Plaintiff’s assertion that his emails are not public records borders on the
nonsensical; taken to the extreme, Plaintiff’s theory of public records would
exclude the vast majority of emails between public employees and outside

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individuals. In today’s virtual world, where almost all business is conducted
electronically, this conclusion is absurd.
In summary, this Court has determined that Plaintiff’s emails, as
produced by UF, have both been disclosed by a government agency and
constitute public records. As a result, they can form the basis of the fair report
privilege.
B
This Court now turns to the application of the privilege. Having
concluded that the source documents can trigger the privilege, the question
becomes whether the Article statements are a “fair and accurate” report of
them. Determining whether a report is fair and accurate requires a close
comparison of the report and the documents and information from which it is
drawn. 5 See Heekin v. CBS Broad., Inc., 789 So. 2d 355, 360 (Fla. 2d DCA
2001), disapproved of on other grounds by Anderson v. Gannett Co., 994 So. 2d
1048 (Fla. 2008) (reversing application of the fair report privilege where there
was “nothing in the record to indicate that the trial court compared the
broadcast at issue with the public records”).

Plaintiff also proffers an argument that Defendants were required to review and analyze
all the produced documents to properly invoke the fair report privilege. ECF No. 74, at 23–
24. Section 611 indicates that the report must be “accurate and complete or a fair
abridgement of the occurrence reported.” Restatement (Second) of Torts § 611 (Am. Law. Inst.
1975). Despite the apparent risk of “cherry-picking,” Plaintiff’s argument is not reasonable
or commonsensical, and his selective reading of § 611 seems to elide the “fair abridgement”
portion—just as he claims Defendants have done with “complete.”
5

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The fair report privilege is broad. It requires only that the publication be
“substantially” correct in its representation of the information received. See,
e.g., Ortega v. Post-Newsweek Stations, Fla., Inc., 510 So. 2d 972, 977 (Fla. 3d
DCA 1987) (privilege held to operate because the reports were “fair and
substantially accurate”). “It is not necessary that [the publication] be exact in
every immaterial detail or that it conform to the precision demanded in
technical or scientific reporting. It is enough that it conveys to the persons who
read it a substantially correct account of the proceedings.” Woodard, 616 So.
2d at 502–03 (quoting Restatement (Second) of Torts § 611 cmt. f (Am. Law
Inst. 1977)).
Protection of the privilege is not lost, for example, by colorful language
or a failure to look beyond the government documents for verification. Editorial
style is expected, and news media can phrase their coverage to “catch . . . the
readership’s attention.” Alan v. Palm Beach Newspapers, Inc., 973 So. 2d 1177,
1180 (Fla. 4th DCA 2008). They can also select the focus of a piece and have no
duty to further investigate or verify government-produced information. See
Jamason v. Palm Beach Newspapers, Inc., 450 So. 2d 1130, 1133 (Fla. 4th DCA
1984) (“The newspaper, had it wished, could have devoted the entire issue to
the statement without any effort to neutralize the accusation by giving the
accused the opportunity to deny.”); Woodard, 616 So. 2d at 503 (holding
reporter did not need to “determine the accuracy of the information” in
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government records). In addition, a publication’s language does not have to be
“technically precise” in discussing legal proceedings. Rasmussen, 946 So. 2d at
570.
C
This Court has conducted a thorough review of the thirty-one statements
and the documents Defendants cite in support. For ease of analysis and
explanation, this Court has categorized the statements into five groups and
discusses in detail only one statement from each of the first four groups. The
fifth and final group, consisting of Statements 1, 17, and 31, is not discussed
with reference to the fair report privilege because the relevant statement part
appears to be a quote taken from an interview, rather than from a publicly
produced source document. 6
1
The first group includes Statements 2, 3, 4, 5, 6, and 7—the statements
Plaintiff has highlighted as “related to defending and promoting GMOs.” ECF
No. 74, at 65–66. As explained above, the privilege is broad and requires only
that the resulting report be fair and “substantially accurate.” In Woodard, a
news report met this standard by reporting that a school bus driver had served
four years in prison for homicide, though she had in fact only served two.

This group includes two statements from the thirty-one to which Defendants allege the fair
report privilege applies, as well as the one remaining statement.
6

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Woodard, 616 So. 2d at 502–03. Similarly, a report describing inmate beatings
met the standard when there were “no material differences” between the
reported information and the official documents upon which it was based.
Stewart v. Sun Sentinel Co., 695 So. 2d 360, 362 (Fla. 4th DCA 1997).
Discrepancies that would not have “a different effect on the mind of the
[reader]” and that do not “affect the gist of the story” do not prevent the fair
report privilege from operating. Woodard, 616 So. 2d at 503.
This Court has determined that it would be fair and accurate to interpret
the source documents Defendants cite in support of Statements 2–7 to mean
that Plaintiff has written and spoken about the safety of GMO technologies.
See, e.g., ECF No. 64-21, at 1 (grant proposal including the statement that
“[s]afe food products with no plausible means of harm become stigmatized”
because of “fear and undue cynicism about transgenic crop technology”); ECF
No. 64-9, at 33 (testimony before the Council of the County of Kaui’a describing
GMO technology as “safe and used because it helps farmers compete”). Plaintiff
would prefer this idea to be communicated more neutrally—perhaps as a
statement that he often explains the science of GMO technologies. But this
preference is not the yardstick by which statements in a news report are
measured. Defendants’ statements must be only “substantially accurate,” and
Defendants have a right to focus and color their report to capture and hold
readers’ attention. Look at Statement 3.
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Statement 3: “Dr. Folta said that he joined the campaign to
publicly defend genetically modified technologies because he
believes they are safe and that it is his job to share his expertise.”
It appears undisputed that Plaintiff thinks GMO technologies are safe
and that he believes it is his role as a land-grant scientist to engage with and
explain complex scientific concepts to the public. Plaintiff bristles at the idea
that he “joined the campaign” to defend GMOs, but this is a reasonable
description of his correspondence with industry around labeling laws and his
advocacy activities before government bodies. See, e.g., ECF No. 64-9, at 139–
147 (email chain discussing possible public education responses to proposed
state labeling laws); Id. at 137 (email from Plaintiff to an industry organization
executive evaluating a meeting held by the Pennsylvania House Agriculture
and Rural Affair Committee). Therefore, Statement 3 is a fair and accurate
report of the cited source documents.
In response to several of these statements, Plaintiff highlights the
difference between GMO “products” and “technologies.” Though this Court
appreciates the distinction and its relevance, in the context of the fair report
privilege, this is too exacting. The court in Woodard specified that the standard
in the news media context is not that of “technical or scientific reporting.”
Woodard, 616 So. 2d at 502–03. The typical reader is not likely to consider Dr.
Folta in a different light after hearing that he is supportive of GMO products,
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as opposed to GMO technologies. This is precisely the type of error that still
falls within the definition of “substantially accurate.”
As a result, the fair report privilege applies to Statements 2, 3, 4, 5, 6,
and 7. Summary judgment as it pertains to these statements is GRANTED.
2
The second group—made up of Statements 11, 24, 29, and 32—relates to
Plaintiff’s motivation for participation with industry and in advocacy activities.
The fair report privilege allows the news media flexibility for editorial style
and places no duty on it to further investigate or verify the information
contained in government-produced records. See Alan, 973 So. 2d at 1180; see
also Woodard, 616 So. 2d at 502–03. From this, an article’s negative portrayal
of an individual is not grounds for a defamation action. Alan, 973 So. 2d at
1180 (“While some of the statements in the Post’s articles may be viewed as
painting Alan in a negative light, this alone does not rise to actionable
defamation.”).
Consider Statement 24.
Statement 24: “Dr. Folta, the emails show, soon became part of an
inner circle of industry consultants, lobbyists and executives who
devised strategy on how to block state efforts to mandate G.M.O.
labeling and, most recently, on how to get Congress to pass
legislation that would pre-empt any state from taking such a step.”
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The cited documents make clear that Plaintiff communicated with industryassociated individuals and other academics about GMO labeling legislation at
both the state and federal levels. See, e.g., ECF No. 64-9, at 139–147; id. at
156–57 (email discussion about a proposed federal bill). Plaintiff takes offense
at the concept of belonging to an “inner circle” and at the perceived implication
that he would participate in such discussions as part of a quid pro quo
exchange of strategic cooperation for grant money. This Court appreciates
Plaintiff’s frustration and believes that his true incentive for taking action
was—as he stresses—about the science. Plaintiff and biotechnology companies
often have, possibly to Plaintiff’s detriment in some instances, aligned
interests. Plaintiff seeks to educate the public about GMO technology for the
sake of sharing knowledge and fighting misinformation. The biotech industry
encourages such education efforts, maybe altruistically to a degree, but also
because it helps their bottom line. A public with a deeper understanding of
GMO food products is more likely to accept and purchase them.
The mischaracterization of motivation that Plaintiff observes in this
group of statements does not provide him with a legal remedy. The news media
Defendants’ qualified privilege reaches these statements. Defendants have
presented a fair and accurate report of the source documents, so Plaintiff
cannot complain of the “negative light” in which he feels he has been cast.

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Accordingly, the fair report privilege applies to Statements 11, 24, 29, and 32,
and summary judgment is GRANTED as to them.
3
The third group, which includes Statements 8, 9, 10, 12, 13, 14, 15, 18,
19, 20, 27, 28, and 30, covers the statements most closely tied to the Article’s
overarching theme, as well as those describing other academics’ interactions
with various industry players. This group also includes several of the
statements that Plaintiff contends are “the most independently defamatory
and damaging.” ECF No. 74, at 47–53, 57–61. These statements pertain to
industry’s alleged practice of swapping grants for advocacy and how industry
considers and seeks out academic support.
At the risk of sounding like a broken record, the fair report privilege is
broad and its “fair and accurate” bar is a low standard, especially considering
the importance placed on news media’s responsibility to report on government
action. Media defendants can add color. And they are not required to
regurgitate the exact, precise language of their government sources. They can
also summarize and focus publications as they choose. See, e.g., Jamason, 450
So. 2d at 1133. In Rasmussen, for example, the plaintiff objected to an article
stating that he had pleaded to “reduced or related charges” in a particular suit,
when in reality those charges had been dropped after he had pleaded to lesser
charges in a related case. Rasmussen, 946 So. 2d at 569. The court there
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determined that the summary language, which covered charges against
numerous defendants, was not false as it related to the plaintiff and that the
media’s reporting was protected by the fair report privilege. Id. at 569–70.
Plaintiff’s main contention with the Article is the implication that he is
not the independent scientist he has spent the last thirty years becoming, but
rather that he shills for industry, promoting biotech company products and
technologies in a quid pro quo arrangement for grant money. While this Court
acknowledges the reputational impact of such a perception, and is sympathetic
to Plaintiff’s situation, the Article statements to which Plaintiff objects are
nonactionable. Take Statement 9, for example.
Statement 9: “So Monsanto, the world’s largest seed company, and
its industry partners retooled their lobbying and public relations
strategy to spotlight a rarefied group of advocates: academics,
brought in for the gloss of impartiality and weight of authority that
come with a professor’s pedigree.”
The cited sources offer evidence of industry support for academics, as
well as of academics advocating for outcomes that align with company
interests. See, e.g., ECF No. 64-48, at 2–16, 19–22, 28–31 (detailing Professor
Chassy’s communication with a Monsanto executive about a letter to the EPA
and a donation to his university); ECF No. 64-49, at 2, 4–13, 21–26, 37, 41
(including Professor Shaw’s communications with Dow and Monsanto
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executives about letters to the USDA and support for university faculty). It is
clear from the communications that biotech companies, like Monsanto, had the
goal and the plan of harnessing academic voices to advance their objectives. It
is not obvious to this Court that a natural reading of the statement would
necessarily impute any sort of strategizing or “shilling” on the part of the
targeted professors. To the extent that it does, it is likely still a fair and
substantially accurate report of sources documenting industry funding for
educational pursuits. The Article’s reference to a “gloss of impartiality”
appears to be in the eye of the industry beholder and therefore not most easily
interpreted as a questioning of academic or professional integrity.
Plaintiff argues in response to at least one of these statements that the
fair report privilege cannot apply with respect to him, based on its fairness and
accuracy with regard to sources about other academics. ECF No. 74, at 48.
Plaintiff does not provide any authority to support this assertion, and though
not precisely on point, Rasmussen, discussed supra, weighs against such an
application. There, the court determined that a summary statement that more
precisely described the situation of others similarly situated was acceptable,
even despite it being technically inaccurate as to the plaintiff. Rasmussen, 946
So. 2d at 569–70. Here, the UF-produced source documents do show industry
collaborating with Plaintiff and expelling the virtues of his participation in

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their activities. See, e.g., ECF No. 64-9, at 7, 36, 86, 120, 128 (mentioning, for
example, the “big white hat” worn by land grant scientists in the GMO debate).
After reviewing the cited source documents, this Court appreciates the
ranging levels of collaborative intensity between various companies and
academics. Plaintiff’s involvement with industry and industry groups was
different in kind from that of some other professors. This Court understands
Plaintiff’s frustration with being “lumped in” with others and arguably being
touted as the poster child for such quid pro quo transactions when others had
notably deeper and more involved relationships. Unfortunately, even if this
perception can be gleaned from the Article, Defendants did not step outside the
privilege’s protection in reporting on the source documents. The fair report
privilege applies to Statements 8, 9, 10, 12, 13, 14, 15, 18, 19, 20, 27, 28, and
30. Defendants’ motion for summary judgment as to these statements is
GRANTED.
4
The fourth group—consisting of Statements 16, 21, 22, 23, 25, and 26—
is concerned with the omission of favorable or explanatory information.
Florida’s fair report privilege requires that a report be “accurate and complete
or a fair abridgment” of the underlying information. See, e.g., Huszar, 468 So.
2d at 516 (quoting Restatement (Second) of Torts § 611). Fair abridgment can
occur when media defendants accurately summarize separable portions of
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government records. See Carson v. News-Journal Corp., 790 So. 2d 1120, 1122
(Fla. 5th DCA 2001), dismissed, 805 So. 2d 805 (Fla. 2002). The court in Carson
did not find problematic that the newspaper had reported on plaintiff’s
dismissal without also noting that he was discharged for “reasons other than
‘misconduct connected with his work’ and that he was awarded unemployment
compensation benefits.” Id. Turn to Statement 21.
Statement 21: “‘Misinformation campaign in ag biotech area is
more than overwhelming,’ Yong Gao, then Monsanto’s global
regulatory policy director, explained in an April 2013 email to Dr.
Folta as the company started to work closely with him. ‘It is really
hurting the progress in translating science and knowledge into ag
productivity.’”
The quoted portions come directly from a UF-produced email. Plaintiff
objects to Defendants’ omission of several sentences, arguing that the
abbreviated version presents the conversation in a completely different light.
ECF No. 74, at 84. The omitted sentences essentially state that the author is
“grateful that academics like [Plaintiff] are willing to speak out on the science
in this area to the public” and thank Plaintiff for “supporting science and for
educating those who are open to science.” Id. It is not apparent that the
inclusion of these sentences would at all change the effect of the statement in
an average reader’s mind. If anything, their inclusion would likely strengthen
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the theme of industry executives seeing value in professorial allies. As a result,
Defendants provided a fair and accurate abbreviation of the email in question,
so the statement is covered by the fair report privilege.
More generally, Defendants are under no obligation to include additional
information that would portray the Plaintiff in a more favorable light. The
press can select the focus of their own publications, without regard to
presenting both sides of every issue. See, e.g., Jamason, 450 So. 2d at 1133. For
this reason, Statements 16, 21, 22, 23, 25, and 26 are protected by the fair
report privilege. Summary judgment as it pertains to these statements is
GRANTED.
D
As explained, Statements 2–16, 18–30, and 32 all clearly fall within the
ambit of the fair report privilege. Given the current climate, it is important to
recognize the critical nature of the privilege and the necessity of its expansive
application. Today’s environment has created a unique prism for defamation
actions and the protections intended to ensure a free press. When politicians
plan to “open up our libel laws,” and then after winning elections, continue to
pummel the press and decry anything unflattering as “fake news,” it is clear
that the Fourth Estate is under attack. When those in power describe lawful
investigations as witch hunts and “[c]arefully sourced journalism” as “fake
news from the enemies of the people,” it is especially important for the
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judiciary to consider carefully its role in providing the media ample space to
exercise their First Amendment rights. Michael Miller, Enemy of the People?,
N.Y. St. B.J., September 2018, at 5.
Beyond these verbal and 140-character attacks, there is also evidence to
suggest that the media is losing in libel and privacy suits much more often and
at a greater cost than in the past. RonNell Andersen Jones & Sonja R. West,
The Fragility of the Free American Press, 112 Nw. U.L. Rev. Online 47, 58
(2017). The press has won only 39% of the privacy and libel cases at trial since
2010. Emily Bazelon, Billionaires vs. the Press in the Era of Trump, N.Y. Times
(Nov. 22, 2016), https://www.nytimes.com/2016/11/22/magazine/billionairesvs-the-press-in-the-era-of-trump.html. The average award granted against
media defendants in the 1980s was $200,000; the median damage award has
now grown to $1.1 million. Id. Today, it seems that super-wealthy
individuals—undeterred by the negative outcomes and market forces that used
to prevent many defamation suits—can treat “suing the press as an
investment” and can pursue their objectives by funding cases and waiting for
the right combination of issue, judge, and jury. Id.
Against this backdrop, the importance of the press’s common law
privileges becomes even more obvious. The fair report privilege exists largely
enshrined in state and federal court jurisprudence alone. It is only as strong
as the courts that enforce it. In applying the privilege, this Court is mindful of
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the instructive nature of the Florida Constitution and the legislature’s
direction in Florida’s Public Records Law. Both these sources indicate a
weighty significance placed on citizen oversight of their government—
oversight that is assisted and largely effectuated by reliance on a free press to
investigate and report on government action.
This case is not one cooked up by billionaire opponents of a free media.
Plaintiff seeks only a remedy for the reputational damage he alleges he
suffered because of Defendants’ publication. Plaintiff would have this Court
apply a narrow understanding of the fair report privilege—either through
exempting his emails from the definition of public records or by applying a
considerably harsher “fair and accurate” reporting standard. Despite this
Court’s sympathy for and understanding of Plaintiff’s case, it cannot act as
Plaintiff suggests. A cramped reading of the privilege would undercut its very
purpose. It would open the door to far less meritorious suits by far less
scrupulous plaintiffs, and it would contribute to the ongoing chipping-away of
the rights and privileges necessary to the press’s ability to play its intended
role as government watchdog. This Court will not do so.
III
This Court now turns to the fifth and final group of statements—
Statements 1, 17, and 31. Although Defendants claim four or five defenses for
each statement, this Court will focus primarily on two: that the statements are
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not susceptible to a defamatory meaning and that they are protected as pure
opinion.
A
Whether a statement is capable of defamatory meaning is a question of
law for the court. Turner v. Wells, 879 F.3d 1254, 1263 (11th Cir. 2018). Only
when a statement is susceptible to two reasonable meanings—one of which is
defamatory—does it become a question of fact for the jury. Id. at 1269.
A statement is defamatory when its “gist” or “sting” is defamatory.
Greene v. Times Publ’g Co., 130 So. 3d 724, 729–30 (Fla. 3d DCA 2014). A
defamatory statement is a statement that “tends to harm the reputation of
another by lowering him or her in the estimation of the community or, more
broadly stated, one that exposes a plaintiff to hatred, ridicule, or contempt or
injures his business or reputation or occupation.” Jews For Jesus, Inc. v. Rapp,
997 So. 2d 1098, 1108–09 (Fla. 2008). A statement that does such “on its face”
can be referred to as defamatory per se, and extrinsic proof is not required to
establish the statement’s defamatory meaning. See Carroll v. TheStreet.com,
Inc., No. 11-CV-81173, 2014 WL 5474061, at *16 (S.D. Fla. July 10, 2014) (“The
statements labeling Carroll a “convicted felon,” “con artist,” and “troubling
character,” remain the same—they are injurious on their face and require no
extrinsic evidence to establish their defamatory meaning.”). Defamation can
also occur by implication under Florida law. Defamation by implication arises
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when “literally true statements are conveyed in such a way as to create a false
impression.” Rapp, 997 So. 2d at 1108. This can occur in two ways: (1) through
juxtaposing facts to imply a defamatory connection or (2) creating a defamatory
implication by omitting facts. Id. at 1106.
In determining the availability of a defamatory meaning for a given
statement, a court considers the statement in the context of the publication as
a whole and evaluates it as it would be understood by the common mind. A
court must consider a publication in its totality, looking at “all the words used,
not merely a particular phrase or sentence.” Byrd v. Hustler Magazine, Inc.,
433 So. 2d 593, 595 (Fla. 4th DCA 1983) (quoting Info. Control Corp. v. Genesis
One Computer Corp., 611 F.2d 781, 784 (9th Cir. 1980)). “Articles are to be
considered with their illustrations; pictures are to be viewed with their
captions; stories are to be read with their headlines.” Byrd, 433 So. 2d at 595.
In addition, publications should be evaluated “not by ‘extremes, but as the
common mind would naturally understand it.’” Id. (quoting McCormick v.
Miami Herald Publ’g Co., 139 So. 2d 197, 200 (Fla. 2d DCA 1962)). The Byrd
court clarified further, indicating that statements “should be considered in
[their] natural sense without a forced or strained construction.” Byrd, 433 So.
2d at 595.

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This Court first considers Statement 1.
Statement 1: “But he also conceded in an interview that he could
unfairly be seen as a tool of industry, and his university now
intends to donate the Monsanto grant money. ‘I can understand
that perception 100 percent’ he said, ‘and it bothers me a lot.”
Plaintiff includes Statement 1—the “tool of industry” statement—as one of the
Article’s most damaging statements. ECF No. 74, at 53. Plaintiff argues that
the statement as written insinuates that Plaintiff himself offered the term “tool
of industry,” when the words were really those of Defendant Lipton. 7 This
Court’s reading of the sentence is that the phrase did come from Defendant
Lipton; the use of the verb “conceded,” when discussing an interview, would
suggest that the statement was the response to a question, and likely a
question that included the pertinent phrase. Regardless, the identity of the
party to introduce the phrase is not truly relevant to the question of the
common mind’s perception of the statement. This Court cannot conceive of this
statement as capable of a defamatory meaning when the “tool of industry” label
is so closely coupled with “could unfairly be seen.” Plaintiff’s singular focus on

Plaintiff also spends time and space arguing that Defendant Lipton’s question itself was
defamatory. ECF No. 74, at 53–54. As Defendants note in their Supplemental Reply
Memorandum—however Defendant Lipton’s question was phrased—it was not published to
any third party (as it does not appear in the Article) and is thus not actionable. See, e.g.,
Valencia v. Citibank Int’l, 728 So.2d 330, 330–31 (Fla. 3d DCA 1999) (recognizing publication
to a third party as two elements of defamation under Florida law).
7

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the phrase “tool of industry” and its potential defamatory effects is misplaced.
The label needs to be considered in context—beginning with the sentence in
which it appeared. Reading the entire sentence, the import is not that Plaintiff
is a “tool of industry” but rather that the unfair perception of him as one exists.
Even considering this statement in the Article’s larger context—with all the
other privileged, but arguably defamatory statements—Statement 1 is not
susceptible of a defamatory meaning. As a result, summary judgment is
GRANTED as to this statement.
B
Whether a statement is one of fact or opinion is a question of law for the
court. From v. Tallahassee Democrat, Inc., 400 So. 2d 52, 57 (Fla. 1st DCA
1981). While the Supreme Court in Milkovich refused to create additional
protections for all statements “categorized as ‘opinion,’” it also reiterated
existing constitutional protections already in effect. Milkovich v. Lorain
Journal Co., 497 U.S. 1, 19–20 (1990). The Court discussed these protections
in three groupings: (1) Hepps, (2) Bresler-Letter Carriers-Falwell, and (3) New
York Times-Butts-Gertz. Id. at 20. Hepps means that “a statement on matters
of public concern must be provable as false before there can be liability under
state defamation law, at least . . . where a media defendant is involved.” Id. In
other words, “a statement of opinion relating to matters of public concern

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which does not contain a provably false factual connotation will receive full
constitutional protection.” Id.
Florida, like other states, has relied on the Restatement (Second) of Torts
§ 566, to more clearly delineate protected from nonprotected opinion. This
distinction is made between pure and mixed expressions of opinion. Pure
opinion must be “based upon facts that the communicator sets forth in a
publication, or that are otherwise known or available to the reader or the
listener as a member of the public,” while mixed opinion is “based upon facts
regarding a person or his conduct that are neither stated in the publication nor
assumed to exist by a party exposed to the communication.” Fla. Med. Ctr., Inc.
v. New York Post Co., 568 So. 2d 454, 457 (Fla. 4th DCA 1990) (quoting Hay v.
Indep. Newspapers Inc., 450 So. 2d 293 (Fla. 2d DCA 1984)). Only pure opinion
is protected under the First Amendment. Hay, 450 So. 2d at 293. It is worth
noting, however, that if the stated facts upon which the speaker has based his
opinion are “either incorrect or incomplete, or if his assessment of them is
erroneous, the statement may still imply a false assertion of fact” and therefore
lose its protection. Milkovich, 497 U.S. at 18–19; see also Fla. Med. Ctr., 568
So. 2d at 458 (“Thus, in the instant case assuming . . . a subject of public
concern, . . . if the statements are capable of being proved false, they are not
protected.”). In assessing the status of potentially defamatory statements, a
court “must construe the statement in its totality, examining not merely a
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particular phrase or sentence, but all of the words used in the publication.”
Fla. Med. Ctr., Inc., 568 So. 2d at 457 (quoting Hay, 450 So. 2d at 295).
1
This Court now turns to Statement 17.
Statement 17: “‘If you spend enough time with skunks, you start
to smell like one.’ Charles M. Benbrook A proponent of labels on
G.M.O. foods, backed by the organic industry”
Statement 17—the so-called “skunk smear”—appears both in the text of the
Article and directly beneath a photograph of Dr. Benbrook in the print version.
Viewing Dr. Benbrook’s quote in the broader context of the entire Article—as
this Court must do—it is apparent that the statement is Dr. Benbrook’s pure
opinion, based on his own experiences. Dr. Benbrook, who had been the chief
scientist at an organics-funded organization, resigned for the chance at a
university appointment. While at Washington State, Dr. Benbrook continued
to advocate on behalf of the organics industry, just as the industry continued
to fund his research and to promote coverage of his study findings. Dr.
Benbrook no longer works at Washington State, as his research post was not
renewed. Dr. Benbrook’s recent career trajectory provides the facts upon which
his protected, pure opinion is based; Dr. Benbrook’s “skunk smear” appears to
be his own expression of regret over the organics industry’s use of his academic

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pedigree. Statement 17 is privileged as pure opinion and, therefore, is
nonactionable. Summary judgment as to this statement is GRANTED.
2
Finally, this Court looks to Statement 31. 8
Statement 31: “Dr. Benbrook, whose research post at Washington
State was not renewed this year, said the organic companies had
turned to him for the same reasons Monsanto and others support
the University of Florida or Dr. Folta directly. ‘They want to
influence the public,’ he said. ‘They could conduct those studies on
their own and put this information on their website. But nobody
would believe them. There is a friggin’ war going on around this
stuff. And everyone is looking to gain as much leverage as they
can.’”
Statement 31 appears toward the end of the Article and immediately after a
description of Dr. Benbrook’s recent employment history and involvement with
the organics industry. Plaintiff takes offense at the Article’s assertion that
Monsanto approached him for the same reasons that organics companies
supported Dr. Benbrook. He does concede, though, that the statement is not
actionable alone but instead argues that it supports other more defamatory
This Court has reproduced only the second half of Statement 31 above both because it
summarized the first half in its discussion of Statement 17 and because Plaintiff seems most
concerned with the portion that refers to him by name.
8

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statements. ECF No. 74, at 95–96. Dr. Benbrook’s mention of the “same
reasons” is further explained by the direct quote that follows. It is his opinion
that both biotech and organics companies want to influence the public’s
perception of GMO products and that they perceive academic voices as
particularly valuable in doing so. The direct quote that follows and the previous
portion about Dr. Benbrook’s employment trajectory provide the stated facts
upon which his opinion is based. Plaintiff argues that this cannot be Dr.
Benbrook’s true opinion because he knew that Plaintiff had received no
research funding from biotech companies. This information is inapposite. Dr.
Benbrook’s statement is most easily understood simply as opining on the
strategies of Monsanto (and other companies) and does not imply that
Plaintiff’s research is in any way biased or disingenuous. As a result,
Statement 31 is privileged as pure opinion, and as Plaintiff partially admitted,
is nonactionable. Therefore, summary judgment on this statement is
GRANTED.
IV
In today’s world of “fake news” and near-constant attacks on the
traditional media, this Court is especially sensitive to upholding the legal
protections that enable the press to act effectively in its essential task of
policing the government. In summary, Statements 2–16, 18–30, and 32 are
privileged under Florida’s fair report privilege. Statement 1 is not capable of a
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defamatory meaning, and Statements 17 and 31 are privileged as pure opinion.
Summary

judgment

as

to

all

the

statements—Statements

1–32—is

GRANTED.
Accordingly,
IT IS ORDERED:
1. Defendant’s Motion for Final Summary Judgment, ECF No. 65, is
GRANTED.
2. The Clerk is directed to enter judgment in this matter, stating
“Plaintiff’s claims are dismissed with prejudice.”
3. The Clerk shall close the file.
SO ORDERED on February 27, 2019.
s/Mark E. Walker
____
Chief United States District Judge

33