ANNE MCQUEEN v. CAROLE BASKIN

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT

ANNE McQUEEN,

Appellant,

v.

CAROLE BASKIN,

Appellee.

No. 2D22-1482

November 17, 2023

Appeal from the Circuit Court for Hillsborough County; Jennifer X.
Gabbard, Judge.

Allison Morat and Ronnie Bitman of Bitman, O'Brien & Morat, PLLC,
Lake Mary; John M. Phillips and Amy M. Hanna of Phillips & Hunt,
Jacksonville, for Appellant.
Shane B. Vogt and Kenneth G. Turkel of Turkel, Cuva, Barrios, P.A.,
Tampa; David M. Caldevilla of de la Parte, Gilbert, McNamara &
Caldevilla, P.A., Tampa; Craig E. Rothburd of Craig E. Rothburd, P.A.,
Tampa; and Charles M. Harris of Trenam Law, Saint Petersburg, for
Appellee.

LUCAS, Judge.
A sanctuary for lions and tigers, the unexplained disappearance of
one of its owners, and competing allegations of embezzlement, double-
dealing, and betrayal have spawned a defamation lawsuit. Near the
outset of the litigation, the circuit court curtailed discovery and entered a
final judgment in favor of the defendant. For the reasons that follow, we
reverse.
I.
In the 1990s Carole Baskin and her then-husband "Don" Lewis
operated Wildlife on EasyStreet, a big cat sanctuary, an enterprise which
would later become known as Big Cat Rescue.1 Anne McQueen was
employed as Mr. Lewis' personal assistant.
In August 1997, Mr. Lewis disappeared. His whereabouts, or
whether he is still alive, remains unknown to this day.
Not long after Mr. Lewis' disappearance, one of his daughters filed a
conservatorship petition in the Hillsborough County Circuit Court. In
that petition Mr. Lewis' daughter sought to appoint Ms. McQueen as a
conservator of Mr. Lewis' property. Disputes arose during the course of
the conservatorship proceedings. Ms. Baskin alleged that Ms. McQueen
"improperly transferred real property, mortgages, and tax certificates."
For her part, Ms. McQueen filed a petition for an injunction. After a year
of litigation, the parties entered into a stipulation which disposed of the
property in dispute. As part of that settlement, Ms. McQueen received a
$50,000 payment for all her potential claims in the conservatorship
litigation including a "libel and slander claim" against Ms. Baskin. Ms.

1 A big cat sanctuary, counsel informs us, is "a sanctuary for exotic

cats and a leading advocate for ending the abuse of captive exotic cats
and saving wild cats from extinction." Because of the procedural posture
of this case when the circuit court entered judgment, many of the factual
recitations that follow are based on counsel's representations in their
filings below and briefings before this court.
2
Baskin was also obligated to issue a written apology to Ms. McQueen,2
which, in pertinent part, read: "I, Carole Lewis, apologize to Anne
McQueen for all the allegations that I have made about Anne
McQueen. . . . I have found that the allegations made were without full
knowledge of the facts, which I now know are unfounded."
Unfortunately, neither the settlement nor the apology ended the
acrimony.
Events took a turn in 2020 when Netflix aired a television series
entitled, "Tiger King: Murder, Mayhem and Madness." The subject matter
of the series was apparently as sensational as its title, and although it
centered on a supposed rival of Big Cat Rescue (a gentleman who went
by the monikers "Joe Exotic" and "The Tiger King"), some episodes
featured discussions about Mr. Lewis' disappearance. One episode in
particular included footage of interviews with Ms. McQueen, which, Ms.
Baskin maintains, "proliferated false and baseless rumors that Baskin
killed Lewis and disposed of his remains in various horrific ways." While
the show was airing, Ms. McQueen also appeared in a YouTube3
interview with "Ripper Jack Media," in which she discussed Mr. Lewis'
disappearance.

2 In her briefing, Ms. Baskin points out that the settlement

agreement in the conservatorship litigation expressly disclaimed being an
admission of any kind of liability.

3 "YouTube is a video sharing service that allows users to watch

videos posted by other users and upload videos of their own." Forrest v.
Citi Residential Lending, Inc., 73 So. 3d 269, 271 n.1 (Fla. 2d DCA 2011)
(quoting YouTube, TechTerms.com,
http://techterms.com/definition/youtube (last visited October 11,
2023)).

3
 In the aftermath of Tiger King, Ms. Baskin maintains that
"enormous public discussion" ensued concerning her purported
involvement in Mr. Lewis' disappearance. She complains that she, her
current husband, and Big Cat Rescue "became the target of vicious
online attacks."
Ms. Baskin, however, had apparently anticipated that she might
receive some less than favorable coverage in Tiger King. So, in February
2020, prior to the show's release, she began publishing her own
rendition about the events that would later be depicted in Tiger King on
her YouTube "vlog" (hereafter, the Baskin Vlog).4 In her vlog, Ms. Baskin
read aloud a number of entries in her personal diary, some of which were
decades old. Although at points in the Baskin Vlog's postings Ms.
Baskin acknowledges that her recollections might "be a little skewed on
some of the things that I remember" and that the video entries are "for
entertainment purposes only," the Baskin Vlog was obviously meant to
relay Ms. Baskin's assertions of what truly happened at Big Cat Rescue
in the late 1990s.
Over a period of time, Ms. Baskin made the following assertions in
the Baskin Vlog5:

4 "A 'vlog' is a personal telecast or video diary wherein a person

records his or her entries and uploads them to the internet for others to
view." Lulu Enters., Inc. v. N-F Newsite, LLC, No. 5:07-CV-347-D, 2007
WL 3101011, at *1 n.1 (E.D.N.C. Oct. 19, 2007) (citing PC Magazine
Encyclopedia, "Vlog," http://www.pcmag.com/encyclopedia-
term/0,2542,t=vlog & i=54024,00.asp).

5 Ms. Baskin prepared a chart of a compilation of the allegedly

defamatory statements and descriptions of statements that was used as
a demonstrative aid at the summary judgment hearing. The statements
referenced herein are replicated from that chart.

4
"Turns out he [Mr. Lewis] had already had Anne McQueen
forge my name on the closing documents and then she
notarized it."
"Spent the day in our real estate office quizzing Anne
McQueen about the title search I did on her showing
500,000.00 + of our properties titled in her maiden name.
This had all been done in just the past few months. I asked
for the alarm code and a set of keys (ours were with Don) and
I had never had to open the office before. . . . When I asked
for a set of keys, Anne was suddenly very sick with a
headache and had to go home. Since she claims she was the
only person with a set of keys and the code, everyone would
have to leave so she could lock up. [I] knew something was
up then. She said she had to rest, but that she would make
me a set later that night and bring them to me in the
morning. She gave me a bogus alarm code."
"I have gone easy on her [Ms. McQueen] because I have not
been sure how much of her transferring was done as theft
and how much Don may have known about, but for her to
step in and lie about something that we both know the truth
about and her attempt to destroy my original documents by
sneaking them out of the office in a box of her tax papers. I
can see no reason to protect her any longer. Can she be
arrested for embezzling and can your firm represent me in the
ensuing lawsuit? The proof is overwhelming."
"Anne McQueen was feeding people nothing but lies, it's
suspicious Anne is the beneficiary of such a huge life
insurance policy, and Anne and others are sure Don isn't
coming back."
"The return of the 80,000.00 that Anne McQueen has
wrongfully diverted from the Conservatorship to her own
Attorney's bank account."
"That is why I want to see Anne in jail for embezzlement. She
and Wendell may have gotten away with doing harm to Don
but they haven't escaped all of their treacherous deeds. I
want what little justice Don and I may ever see from this
whole ordeal."
Ms. McQueen was "spiriting documents away" to attempt to
hide "all of the stuff that was going on with Anne putting stuff

5
 into her name and Wendell's name and housekeeper's names
and all kinds of stuff."
"Part of the embezzlement I discovered was that Anne would
take money from our checking account to buy those tax
certificates in her maiden name so that she could control if
the properties were sold to pay her lien."
Over roughly the same time period as she was vlogging, Ms. Baskin
is also alleged to have posted the following statements on Big Cat
Rescue's website:
In 1997 when I lost my Husband, I discovered that one of our
secretaries had embezzled hundreds of thousands of dollars
and made herself the beneficiary and executor of his will.
Anne McQueen is referred to as Don's trusted assistant. A
few months before his disappearance we caught her
embezzling roughly $600,000.00 in properties by buying them
with our funds and putting them in her name.
In August 2020, Ms. McQueen and members of Mr. Lewis' family
filed a complaint seeking a pure bill of discovery as to several defendants,
an action which, after a few amendments, evolved into a civil claim for
monetary damages brought solely by Ms. McQueen against Ms. Baskin
as the sole defendant. That complaint asserts claims for defamation
(under three different theories).6
On July 9, 2021, Ms. Baskin filed a verified "Motion to Dismiss
and/or for Summary Judgment on Second Amended Complaint and for
Attorney's Fees and Costs Under Florida's Anti-SLAPP Statute" in
response to the complaint. In her motion, Ms. Baskin maintained that

6 The complaint also included one count for breach of contract and

fiduciary duty. Ms. McQueen never filed any opposition to Ms. Baskin's
motion as to this count. Moreover, Ms. McQueen has not challenged the
circuit court's adjudication of that count in this appeal. Ms. McQueen
has thus abandoned that issue, and so we affirm the circuit court's
judgment as to that count.

6
Ms. McQueen's complaint amounted to a prohibited SLAPP lawsuit7
under section 768.295, Florida Statutes (2020), and that, as such, she
was entitled to "an expeditious resolution" of Ms. McQueen's claim. See
§ 768.295(4). She argued that the statements Ms. McQueen was suing
her on constituted protected "free speech in connection with a public
issue" and that Ms. McQueen's claim was without merit. See §
768.295(3).
Furthermore, Ms. Baskin argued that her vlog and website posts
fell under the protection of section 770.01, Florida Statutes (2020), which
requires presuit notice as a condition precedent when a defamation
action is brought "for publication or broadcast, in a newspaper,
periodical, or other medium." Ms. Baskin contended that the Baskin
Vlog and her web posts should be construed as "other medium" under
this statute and that Ms. McQueen's subsequent service of a statutory
notice to Ms. Baskin8 was insufficient to cure what, she suggests, was a
"jurisdictional" defect in Ms. McQueen's complaint. Finally, Ms. Baskin's
motion argued that all of her alleged statements were nondefamatory as
a matter of law.

7 SLAPP: Strategic Lawsuits Against Public Participation. Anti-
SLAPP state statutes are common throughout the United States. See
generally Nicole J. Ligon, Protecting Local News Outlets from Fatal Legal
Expenses, 95 N.Y.U. L. Rev. Online 280, 292 (2020) ("[A]nti-SLAPP
statutes[] have been enacted in thirty-one states.").

8 Ms. McQueen served a notice to counsel pursuant to section

770.01 on January 27, 2021. In that notice, which stated it was being
served "in an abundance of caution and to dispense with any argument
to the contrary," Ms. McQueen referenced statements made in the prior
twelve months. We make no comment about the sufficiency or efficacy of
this notice.

7
 Before Ms. McQueen could obtain discovery or depose Ms. Baskin,
the circuit court stayed discovery. The court's stay order indicated that
it would first hear and decide Ms. Baskin's motion. Both sides filed
memoranda, and on October 6, 2021, the court heard the motion to
dismiss/motion for summary judgment.
On April 6, 2022, the court issued an order and final judgment
against Ms. McQueen. Pertinent to our resolution of this appeal, the
circuit court concluded that (1) Ms. Baskin was a "media defendant" so
that the statements on her vlog and website were protected under section
770.01, (2) Ms. McQueen's complaint was a prohibited SLAPP lawsuit
under section 768.295, and (3) the statements complained of "cannot be
construed as conveying a defamatory meaning . . . or are nonactionable
statements of opinion or rhetorical hyperbole."9
This is Ms. McQueen's timely appeal.
II.
It is not entirely clear which procedural mechanism, a motion to
dismiss under Florida Rule of Civil Procedure 1.140(b) or a motion for
summary judgment under rule 1.510, was principally utilized in each of

9 The court also found that Ms. McQueen failed to comply with the

time strictures of Florida Rule of Civil Procedure 1.510(c)(5) in serving
her responses to the motion for summary judgment, that there was no
evidence of proximate causation, that Ms. McQueen was a "public figure"
who could not establish actual malice, and that, in all events, the "fair
report privilege" would apply to certain statements in the complaint.
We would observe that the motion before the court was something
of a hybrid between a motion to dismiss and a motion for summary
judgment. And the circuit court stayed discovery before the parties could
develop much of a factual record. Our resolution of the three preliminary
issues we've identified, and our remand to the court to allow this case to
develop further, will necessarily require the circuit court to reexamine all
these conclusions should these issues arise again.

8
the circuit court's findings throughout its order and judgment. This is
likely due to the manner Ms. Baskin presented her legal arguments (as a
single, unitary motion that asserted both rules without delineating which
arguments were for dismissal and which were for summary judgment) as
well as the expedience the circuit court felt was required under the Anti-
SLAPP statute. But regardless of which parts of the order and judgment
came about as a dismissal with prejudice or as a final summary
judgment, our review would be the same: de novo. See Desch v. S. Fork
of Hillsborough Cnty. II Homeowner's Ass'n, 364 So. 3d 1064, 1067 (Fla.
2d DCA 2023) ("We conduct a de novo review of a trial court's ruling that
grants summary judgment."); Ellerson v. Moriarty, 331 So. 3d 767, 769
(Fla. 2d DCA 2021) ("We review an order of dismissal with prejudice de
novo.").
III.
Our analysis will proceed in the order we deem to be the
appropriate approach for resolving the somewhat intertwined legal issues
presented below: first, we address whether the alleged statements
published in the Baskin Vlog and on Big Cat Rescue's website were
defamatory—and, hence, potentially actionable—under Florida law.
Then, we will discuss whether Ms. Baskin was a "media defendant"
entitled to statutory notice (and an opportunity for retraction or
correction) of those statements.
A.
Florida's Anti-SLAPP statute protects
the right in Florida to exercise the rights of free speech in
connection with public issues, and the rights to peacefully
assemble, instruct representatives, and petition for redress of
grievances before the various governmental entities of this
state as protected by the First Amendment to the United
States Constitution and s. 5, Art. I of the State Constitution.

9
§ 768.295(1). It does so by prohibiting
any lawsuit, cause of action, claim, cross-claim, or
counterclaim against another person or entity without merit
and primarily because such person or entity has exercised the
constitutional right of free speech in connection with a public
issue, or right to peacefully assemble, to instruct
representatives of government, or to petition for redress of
grievances . . . .
§ 768.295(3) (emphasis added). The legislature tied the protections of the
Anti-SLAPP statute to speech "protected" by the First Amendment of the
United States Constitution and article I, section 5, of the Florida
Constitution; and it clarified that the prohibition against lawsuits
challenging protected speech applied only to claims "without merit and
primarily because" of protected speech. Accord Lab'y Corp. of Am. v.
Davis, 339 So. 3d 318, 323 (Fla. 2022) ("In interpreting a statute, our
task is to give effect to the words that the legislature has employed in the
statutory text. 'The words of a governing text are of paramount concern,
and what they convey, in their context, is what the text means.' "
(quoting Ham v. Portfolio Recovery Assocs., 308 So. 3d 942, 946 (Fla.
2020))).
Actionable defamation, however, is not constitutionally protected
speech. See Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942)
("There are certain well-defined and narrowly limited classes of speech,
the prevention and punishment of which have never been thought to
raise any Constitutional problem. These include the lewd and obscene,
the profane, the libelous, and the insulting or 'fighting' words . . . ."
(footnote omitted)); Internet Sols. Corp. v. Marshall, 39 So. 3d 1201, 1215
(Fla. 2010) ("As explained by the U.S. Supreme Court, 'the potential chill
on protected First Amendment activity stemming from libel and
defamation actions is already taken into account in the constitutional

10
limitations on the substantive law governing such suits.' " (quoting
Calder v. Jones, 465 U.S. 783, 790 (1984))); Fox v. Hamptons at
Metrowest Condo. Ass'n, 223 So. 3d 453, 457 (Fla. 5th DCA 2017)
("Freedom of speech does not extend to obscenity, defamation, fraud,
incitement, true threats, and speech integral to criminal conduct." (citing
United States v. Cassidy, 814 F. Supp. 2d 574, 582-83 (D. Md. 2011))).
The first question to resolve, then, is whether Ms. Baskin's published
statements could support a defamation claim.
In Florida, a defamation claim comprises five elements: (1)
publication, (2) of a false statement, (3) with knowledge or reckless
disregard as to the falsity (for public figures) or negligence (for private
figures), (4) which causes actual damages, and (5) is "defamatory." See
Kieffer v. Atheists of Fla., Inc., 269 So. 3d 656, 659 (Fla. 2d DCA 2019)
(quoting Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008)).
The Fourth District explained that a "communication is 'defamatory' if it
tends to harm the reputation of another as to lower him or her in
estimation of community or deter third persons from associating or
dealing with the defamed party." See Mile Marker, Inc. v. Petersen Publ'g,
L.L.C., 811 So. 2d 841, 845 (Fla. 4th DCA 2002).
In the case at bar, the circuit court focused predominantly on the
last element,10 concluding that Ms. Baskin's published statements were

10 The second, third, and fourth elements often pose factual

questions that, in the case at bar, the parties could not explore in depth
due to the court's discovery stay. It cannot be said that there were no
genuine issues of material fact in dispute such that Ms. Baskin was
entitled to judgment as a matter of law on any of those elements of her
defamation claim. See Fla. R. Civ. P. 1.510; Kimball v. Publix Super
Mkts., Inc., 901 So. 2d 293, 295 (Fla. 2d DCA 2005) ("[I]t is reversible
error to enter summary judgment when relevant discovery is pending."
(first citing Colby v. Ellis, 562 So. 2d 356 (Fla. 2d DCA 1990); and then
11
not defamatory as a matter of law. In its judgment, the circuit court
viewed all the statements, collectively, as "mental impressions, opinions
or commentary" that "[t]he common viewer or reader would
understand . . . were one-sided responses to the events that occurred
decades ago but were reinvigorated by the Tiger King series." We cannot
agree with that assessment.
Whether a published statement is a protected expression of pure
opinion versus an actionable expression of fact or mixed opinion and fact
poses a question of law. See E. Air Lines, Inc. v. Gellert, 438 So. 2d 923,
927 (Fla. 3d DCA 1983) ("It is the court's function to determine from the
context 'whether an expression of opinion is capable of bearing a
defamatory meaning because it may reasonably be understood to imply
the assertion of undisclosed facts that justify the expressed opinion
about the plaintiff or his conduct.' " (quoting Restatement (Second) of
Torts § 566 cmt. c (Am. L. Inst. 1977))); Colodny v. Iverson, Yoakum,
Papiano & Hatch, 936 F. Supp. 917, 923 (M.D. Fla. 1996) (citing Fla.
Med. Ctr., Inc. v. N.Y. Post Co., 568 So. 2d 454, 457 (Fla. 4th DCA
1990)).11 From our de novo review, we conclude that several of the

citing Abbate v. Publix Super Mkts., Inc., 632 So. 2d 1141 (Fla. 4th DCA
1994))).

11 The Supreme Court explained the importance of the distinction

between expressions of opinion and expressions of fact in Gertz v. Robert
Welch, Inc., 418 U.S. 323, 339-40 (1974):

Under the First Amendment there is no such thing as a false
idea. However pernicious an opinion may seem, we depend
for its correction not on the conscience of judges and juries
but on the competition of other ideas. But there is no
constitutional value in false statements of fact. Neither the
intentional lie nor the careless error materially advances
society's interest in "uninhibited, robust, and wide-open"
12
recorded statements published in the Baskin Vlog and on the Big Cat
Rescue website were factual assertions of past events. Indeed, it is hard
to construe Ms. Baskin's alleged assertions that Ms. McQueen forged and
notarized closing documents, lied about and attempted to hide the
transfer of properties from Ms. Baskin (which, Ms. Baskin bluntly
claimed was "theft"), attempted to destroy original documents, "spirited"
other documents away, "wrongfully diverted" money into her attorney's
bank account, and embezzled funds as anything other than assertions of
fact. The character of these statements, if they are false, would be
quintessentially defamatory. See, e.g., Blake v. Giustibelli, 182 So. 3d
881, 884 (Fla. 4th DCA 2016) ("[A] publication is libelous per se, or
actionable per se [against a nonmedia defendant], if, when considered
alone without innuendo: (1) it charges that a person has committed an
infamous crime; (2) it charges a person with having an infectious disease;
(3) it tends to subject one to hatred, distrust, ridicule, contempt, or
disgrace; or (4) it tends to injure one in his trade or profession." (first
alteration in original) (quoting Richard v. Gray, 62 So. 2d 597, 598 (Fla.
1953))); Lipsig v. Ramlawi, 760 So. 2d 170, 182, 185 (Fla. 3d DCA 2000)
(affirming slander counterclaim verdict where partnership's attorney
referred to former partner as a "thief" who had mismanaged the
partnership's businesses as such statements did not constitute mere
opinion, and noting that "Amin clearly imputed to Ramlawi conduct
incompatible with the proper exercise of his business, and accordingly
this accusation was slanderous per se" (first citing Teare v. Local Union
No. 295, 98 So. 2d 79, 82 (Fla. 1957); and then citing Scholz v. RDV

debate on public issues. New York Times Co. v. Sullivan, 376
U.S. [254, 270 (1964)].

13
Sports, Inc., 710 So. 2d 618, 625 (Fla. 5th DCA 1998))); Axelrod v.
Califano, 357 So. 2d 1048, 1050 (Fla. 1st DCA 1978) (statements that a
former employee was a thief and a forger were actionable per se).
Besides the nature of the statements themselves, Ms. Baskin
employed a contemporaneously recorded diary in her vlog as a seeming
aid to her recollection of past factual events. And although Ms. Baskin
may have offered a qualification about the nature of her vlog and
couched certain parts as her personal opinion, actionable defamatory
statements do not become nondefamatory when, as here, the context of
the statements swallows up the caveats. See Milkovich v. Lorain J. Co.,
497 U.S. 1, 18-19 (1990) ("Even if the speaker states the facts upon
which he bases his opinion, if those facts are either incorrect or
incomplete, or if his assessment of them is erroneous, the statement may
still imply a false assertion of fact. Simply couching such statements in
terms of opinion does not dispel these implications; and the statement,
'In my opinion Jones is a liar,' can cause as much damage to reputation
as the statement, 'Jones is a liar.' "); Lipsig, 760 So. 2d at 184 ("However,
a speaker cannot invoke a 'pure opinion' defense, if the facts underlying
the opinion are false or inaccurately presented."); see also Jews for
Jesus, 997 So. 2d at 1108 ("[W]hile defamation law shields publishers
from liability for minor factual inaccuracies, 'it also works in reverse, to
impose liability upon the defendant who has the details right but the
"gist" wrong.' " (quoting W. Page Keeton, et al., Prosser and Keeton on the
Law of Torts, § 116, at 117 (5th ed. Supp. 1988))). Nor can we ignore
that Ms. Baskin had previously issued a written apology to Ms. McQueen
for her "unfounded" allegations which she had made "without full
knowledge of the facts."

14
 Finally, we must note that the circuit court's conclusion that Ms.
Baskin's published statements were mere opinion, hyperbole, or mental
impressions is somewhat incongruous with the court's conclusion
elsewhere that Ms. Baskin was a "media defendant" who "regularly posts
information" and "shares information that is of public interest." We will
turn to that point in a moment, but for now, it suffices to observe that
the media defense under section 720.01 is not typically available for
"hyperbole and mental impressions"; rather, the statute serves to protect
the dissemination of news and news commentary. Cf. Ross v. Gore, 48
So. 2d 412, 415 (Fla. 1950) ("The public has an interest in the free
dissemination of news. . . . This opportunity, given by the statute, to
correct inadvertent errors prior to suit is, in our opinion, no more than
fairly and justly commensurate with the opportunity to make the
errors.").
In sum, we conclude that Ms. McQueen's complaint included
allegations of statements of fact and that those statements, if proven,
could be defamatory as a matter of law. As such, the statements were
not protected speech under the Anti-SLAPP statute.
B.
That, however, does not end our inquiry. Ms. Baskin contends she
should be considered a "media defendant" entitled to the statutory
protections of section 770.01, including prior notice and an opportunity
to retract any allegedly defamatory statements she may have made. The
circuit court agreed and concluded she was a media defendant; we
conclude otherwise.
We look first to the text of the statute Ms. Baskin invokes. Section
770.01 provides:

15
 Before any civil action is brought for publication or broadcast,
in a newspaper, periodical, or other medium, of a libel or
slander, the plaintiff shall, at least 5 days before instituting
such action, serve notice in writing on the defendant,
specifying the article or broadcast and the statements therein
which he or she alleges to be false and defamatory.
In conjunction with section 770.01, section 770.02 states:
(1) If it appears upon the trial that said article or broadcast
was published in good faith; that its falsity was due to an
honest mistake of the facts; that there were reasonable
grounds for believing that the statements in said article or
broadcast were true; and that, within the period of time
specified in subsection (2), a full and fair correction, apology,
or retraction was, in the case of a newspaper or periodical,
published in the same editions or corresponding issues of the
newspaper or periodical in which said article appeared and in
as conspicuous place and type as said original article or, in
the case of a broadcast, the correction, apology, or retraction
was broadcast at a comparable time, then the plaintiff in
such case shall recover only actual damages.
(2) Full and fair correction, apology, or retraction shall be
made:
(a) In the case of a broadcast or a daily or weekly newspaper
or periodical, within 10 days after service of notice;
(b) In the case of a newspaper or periodical published
semimonthly, within 20 days after service of notice;
(c) In the case of a newspaper or periodical published
monthly, within 45 days after service of notice; and
(d) In the case of a newspaper or periodical published less
frequently than monthly, in the next issue, provided notice is
served no later than 45 days prior to such publication.
Ms. Baskin believes her vlog and website posts constitute "other
medium" for purposes of the statute, such that she's entitled to the
protections of these sections. She is mistaken.
We explained the construction of "other medium" at some length in
Mazur v. Ospina Baraya, 275 So. 3d 812, 815-16 (Fla. 2d DCA 2019). In
Mazur, a plaintiff sued Penguin Random House, Hachette Book Group,

16
movie production companies, and affiliated individuals. Id. at 814. The
plaintiff alleged he was defamed by his portrayal as a money launderer
and "integral member" of Pablo Escobar's criminal organization in the
book The Infiltrator and the movie based on that book. Id. The
defendants moved to dismiss the complaint, arguing that the plaintiff
failed to comply with the presuit conditions of section 770.01. Id. The
circuit court denied their motion. Id.
On certiorari review, we summarized how to construe these
statutes:
Sections 770.01 and 770.02 work together "to afford
newspapers and periodicals an opportunity to make full
retraction in order to correct inadvertent errors and mitigate
damages, as well as to save them the expense of answering to
an unfounded suit for libel." Bridges, 449 So. 2d at
401 (citing Ross, 48 So. 2d 412).
Considering that the purpose behind section 770.01 is
to protect the free press, Florida courts have interpreted the
statute's "other medium" language to be limited to news
media defendants who publish statements via an "other
medium." To determine whether a defendant's publication
falls "within the purview of the prescribed 'other medium'
entitled to presuit notice, we look to the Ross decision to
determine whether the [defendant's publication] is operated to
further the free dissemination of information or disinterested
and neutral commentary or editorializing as to matters of
public interest." Comins v. Vanvoorhis, 135 So. 3d 545, 557
(Fla. 5th DCA 2014). "In defining the term 'media defendant,'
courts have considered whether the defendant engages in the
traditional function of the news media, which is 'to initiate
uninhibited, robust, and wide-open debate on public issues.' "
Tobinick v. Novella, No. 9:14-CV-80781, 2015 WL 1191267, at
*8 (S.D. Fla. March 16, 2015) (quoting Ortega Trujillo v. Banco
Cent. Del Ecuador, 17 F. Supp. 2d 1334, 1338 (S.D. Fla.
1998)). So even though the "other medium" language
expanded section 770.01 to cover new technologies used to
disseminate the news, such as internet publishers and blogs,
it did not expand the reach of the statute beyond the news

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 media. See, e.g., Plant Food Sys., Inc. v. Irey, 165 So. 3d 859,
861 (Fla. 5th DCA 2015) (holding that "an internet publisher
of various purportedly scientific, technical, and medical
journals and information" was covered by section 770.01);
Comins, 135 So. 3d at 559 (holding that a blog was covered
by section 770.01 and noting that "many blogs and bloggers
will fall within the broad reach of 'media' " because many
blogs have "primarily an informational purpose" and "usually
provide[ ] for public impact or feedback").
This interpretation is confirmed by applying canons of
statutory construction to the language of section 770.01. The
canon of ejusdem generis "states that when a general phrase
follows a list of specifics, the general phrase will be
interpreted to include only items of the same type as those
listed." State v. Weeks, 202 So. 3d 1, 8 (Fla. 2016) (quoting
State v. Hearns, 961 So. 2d 211, 219 (Fla. 2007)). In other
words, "where general words follow an enumeration of specific
words, the general words are construed as applying to the
same kind or class as those that are specifically mentioned."
Id. (quoting Fayad v. Clarendon Nat'l Ins. Co., 899 So. 2d
1082, 1088-89 (Fla. 2005)). Applying this canon to section
770.01, it becomes clear that the general term "other
medium" is limited by the specific terms that precede it:
"publication or broadcast, in a newspaper, periodical . . . ."
Moreover, the doctrine of in pari materia "requires
courts to construe statutes that relate to the same subject
matter together to harmonize those statutes and give effect to
legislative intent." Anderson v. State, 87 So. 3d 774, 777 (Fla.
2012). As explained in Ross, the notice provided for in
section 770.01 and the opportunity to retract the offending
statement provided for in section 770.02 go hand in hand.
See 48 So. 2d at 415. Section 770.02 explicitly applies only
to newspapers, periodicals, and broadcasts—the same types
of publications specifically mentioned in section 770.01.
Reading sections 770.01 and 770.02 in harmony, it becomes
clear that the "other medium" language is not meant to
expand the scope of section 770.01 beyond the news media.
Id. at 817-18. Applying these principles, the Mazur court concluded that
neither the book nor movie company defendants were entitled to the
protections of sections 770.01 and 770.02. Id. at 818-19.
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 If a movie and a nonfiction book about an alleged drug cartel
insider do not constitute "other medium" under section 770.01, it is
difficult to imagine how Ms. Baskin reading her diary entries on a vlog
about a former secretary whom she repeatedly accuses of embezzlement
could. See Mazur, 275 So. 3d at 818-19; Five for Ent. S.A. v. Rodriquez,
877 F. Supp. 2d 1321, 1327 (S.D. Fla. 2012) ("Florida courts have
recognized that the statute does not apply to private parties or nonmedia
defendants." (citing Bridges v. Williamson, 449 So. 2d 400, 401 (Fla. 2d
DCA 1984))).
Ms. Baskin makes much of the fact that posting digital content
online does not, in and of itself, render her a private, nonmedia
defendant. In other words, media defendants are not limited to those
who work in print media. True enough. But in this day and age, that's
no longer a point in need of proving. See Five for Ent., 877 F. Supp. 2d at
1327 ("Whether the phrase 'other medium' in § 770.01 includes the
internet is not the critical issue here, and, in this Court's view, not even
open for debate. That the internet constitutes a[n] 'other medium' for the
purposes of § 770.01 should be well-settled."). Rather, our focus
remains on the content of the digital publication and the central issue of
whether it could be likened to the kind of content newspapers,
broadcasters, and periodicals publish (whether in print or online),
because that is all that sections 770.01 and .02 encompass. Ms.
Baskin's vlog and website postings fall short of that mark.
It is true the landscape of news publication has drastically
changed. There has been a great democratization in how the written
word can be published, a change some have likened to the one wrought
by the invention of the Gutenberg press. See generally Russell L.
Weaver, Free Speech in an Internet Era, 58 U. Louisville L. Rev. 325, 329-

19
30 (2020) ("The communications revolution sparked by the internet has
been as transformational as the revolution sparked by Gutenberg's
invention of the printing press."). But we also addressed that facet of the
changing times in Mazur when we remarked:
[A]s technology develops and society's media consumption
changes, becoming increasingly geared toward instantaneous
access, the line between traditional news media and other
forms of media may become blurred. Many people get their
news via Facebook, YouTube, Twitter, Instagram, LinkedIn, or
Reddit. Podcasts have boomed in popularity, and many cover
current events. Shows and movies—many of which are
documentaries, docuseries, or based on true stories—can be
streamed on services such as Netflix, Amazon Prime Video,
and Hulu. These technological developments may also make
it easier to issue corrections and retractions that actually
reach the intended audience. Apps can send push
notifications with corrections or retractions straight to users'
smart phones. Corrections and retractions can be posted to
and shared widely on social media.
Mazur, 275 So. 3d at 818-19 (footnotes omitted).
Changing times do not alter statutory text; amendments do. As we
said in Mazur, 275 So. 3d at 819: "Whether the presuit notice protection
under section 770.01 should have a wider reach in light of recent
technological developments is a matter for the Florida Legislature to
decide."
IV.
Because the complaint included allegations that could, if proven,
constitute defamation and Ms. Baskin was not a media defendant, we
reverse the circuit court's judgment except as to the one count that has
not been challenged, which we affirm without comment. We remand for
further proceedings consistent with this opinion.
Affirmed in part; reversed in part; remanded.

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CASANUEVA and ROTHSTEIN-YOUAKIM, JJ., Concur.

Opinion subject to revision prior to official publication.

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