I will skip defendants introduction at this time
as it will be subject of the separate blog. Here is the continuation of
the hearing
"MR. RANDAZZA (blogger’s attorney): Your Honor, as a matter of housekeeping here so I can understand what we are doing.
THE COURT: Okay.
MR. RANDAZZA: It sounds as if there has been a
determination that each and every one of these blogs has been proven
false and that we are just looking at damages.
THE COURT: No. Actually, the truth or falseness
of the blogs is not really relevant in this particular instance for me
because if the blogs are false, but not in any way harmful, or they
can't prove harm without prior restraints, then they can sue the
Defendant for defamation, that's a whole other thing. So the truth
whether it's defamation or it's not defamation, I'm really not focused
on the truth or falsity or falseness of the blogs. What I'm focused on
is they have asked for prior restraints, and to my mind and also to the
mind of the law that I'm bound to follow, there is only very limited
circumstances under which I would render prior restraints and they have
the burden of showing that those prior restraints are necessary, not
that they are not entitled to sue blogger for whatever they want to sue
her under, under their verified second amended complaint, but do they
need prior restraints or must I impose them. So I'm really focused on,
and I'm going to tell them to take the next 45 minutes and present
evidence, give me their best shot, and tell them that from nothing that I
have so far read, and maybe I didn't focus on it, I'll allow them to
take me to be focused, but I have not read or come across anything that
has caused me, at this moment, to impose prior restraints and it's their
burden to show me why I should. I'll give them that opportunity because
if that doesn't happen, then we are just going to set this for trial
and move on.
MR. RANDAZZA: I got it reversed. What we are
really doing is, is there damage? If there's no damage, it doesn't
matter if it's true or false because it could be false, but not prior to
a subject restraint.
THE COURT: Correct.
MR. RANDAZZA: Thank you, Your Honor.
THE COURT: The other thing is in the event that I
do impose prior restraints that I find that the conclusion of this, I'm
inclined to give the Defense a stay to take it up.
MR. RANDAZZA: Thank you, Your Honor.
THE COURT: Now, Mr. Kluger?
MR. KLUGER: Very briefly, Your Honor. Your order that got us here today -
THE COURT: Yes.
MR. KLUGER: -- said that at the hearing the Court
will hear Plaintiff's (Raanan Katz and RK Centers) proof regarding
whether statements made in Defendant's blog have or are likely, either
one, to reach Plaintiff's (Raanan Katz and RK Centers) potential
customers and to swayed them from doing business with Plaintiff (Raanan
Katz and RK Centers).
THE COURT: Right, but the best evidence of
something being likely to do that is evidence that it has, and I'm not
just making that up just like some philosophical Jewish saying, that's
what the law says. The law really says show me the damage and that will
be an indication that there will be more damage.
MR. KLUGER: I think what I'm prepared to do, based on the Court's order, is a little of both and likely to and has -
THE COURT: Well, I want you to start with the has
because the law tells me that if the blogging is not concurrent to
another tort, which in your case the tort that you have set forth is
tortuous interference with a business relationship. So you must show me,
first, that there has been damage to a business relationship and then
you can say, based on that, you can see clearly that there will be more
or there should be more. So I'm going to ask you if you would, Mr.
Kluger, to start with the damage that has occurred as a result of this
blog, anything provable that you wish to set forth.
MR. KLUGER: I understand. I would like to inform
the Court of a case from the Third District called Unistar, if I may
approach I’ll give the Court a copy.
THE COURT: I will be happy to see it.
MR. KLUGER: It says, and I'll give it to you in a second.
THE COURT: If you give me a copy then I can read
along and follow the bouncing ball which is always better for me. If
anybody is handing me anything to read, don't read to me. Don't do what I
just did to you, because it's better for me to be able to look at the
material and flip back and forth. So tell me what -
MR. KLUGER: The second page.
THE COURT: Go ahead.
MR. KLUGER: Headnote five.
THE COURT: Go ahead.
MR. KLUGER: Says that we think appellant has made
a prima facie showing of irreparable injury. Even if positive proof of
an injury did not appear from the record, such irreparable harm could be
presumed and neither be alleged or proved in a case involving wrongful
interference with a business relationship. And so I'm going to give you
both, Your Honor, but in giving you the road map as they did, I just
would ask the Court to indulge me a second and I'm done and we will put
on evidence.
THE COURT: Sure.
MR. KLUGER: And that's this.
THE COURT: Okay.
MR. KLUGER: I think we will be able to
demonstrate to you an instance of where a broker's customers on their
own said, who are these people, we don't want to deal with them, and
that will deal with that issue. We are also going to give you enough of a
proof that the intent of these blogs is to interfere with the business.And
if I can indulge the Court, it's sort of like, as you know, that you
don't always know when people are spreading horrid, evil gossip about
you, you don't know what they are, and so much of it is insidious that
you can't prove it all, but I'll give you some proof and then I'llgive you the basis I believe to show that her intent is solely to interfere with this business.
I think that the conjunction of those two will
meet the burden that the Court has imposed on us, but I want you to
understand it's twoflavors. I
think part of the problem is you're never going to know all the people
that don't do business because they don't pick up the phone and say,she
says you're a criminal, we read you're a crook. We read on google that
the entire first page has been essentially played with to put all of
this information out there,people don't call you and tell you.
THE COURT:Of course.
MR. KLUGER: So we are lucky that we found somebody that had a relationshipand
told us the problem, but I think I'm going to be able to inform you
easily to make the bridge that the intent of all of these things is not
to exercise any free speech, but merely to interfere with the business.
So having said that, we are ready to put on the evidence. Would you like
us to proceed?"
AT THIS TIME I do not have Katz attorney Mr.Alan Kluger's video presentation, so in the meantime please enjoy this one...
"THE COURT: Let me let Counsel respond.
MR. RANDAZZA: Your Honor, in just a quick review
of this Unistar case, while it does say preciseiy what Counsel said it
does, the context of this case is a trade secret case. So if Your Honor
were asked to enjoin the Blogger from revealing a secret, but you cannot
unring the bell once the trade secret is put out into the public
sphere. We are talking about someone who is posing documents that are
Miami-Dade court documents, public documents, documents that the public
has a right to see. On this, the public had no right to see this. So
this is very different. This is a very different content to try to shoe
horn a prior restraint when we are talking about enjoining opinions and
posting a public court document.
THE COURT: I understand what you are saying and
without a doubt it certainly is more egregious to do that, however, the
law is as it is, and if it shows me evidence of a concurrent tort, in
other words, if the sole purpose, not the purpose, but if not only the
sole purpose of her blogging is to damage and interfere with the
business relationship, but she's being successful and some of it is
true, some of it is not true, and she has committed a tort of
interference with a business relationship, then I will have to weigh -
MR. RANDAZZA: Yes, Your Honor.
THE COURT: -- whether or not there is substantial
likelihood which is my standard, that there will be more damage and
that a prior restraint is in order and I realize that's a heavy burden.
I'm listening with that in mind, and I just am giving the Plaintiff
(Raanan Katz and RK Centers) the opportunity to do that and you, then,
the opportunity to cross-examine on it and then let's see how it rolls.
MR. RANDAZZA: We recognize that, Your Honor, and
any time somebody writes something negative about a business it may
necessarily interfere with that business.
THE COURT: I understand that. I understand that and believe me-
MR. RANDAZZA: Thank you."
To be continued…
