believe that the broadcast was referring to plaintiff, portraying
plaintiff's employees, musicians, dancers and patrons as members
of `Russia's violent underworld.'"
For all of the aforementioned reasons, the court denies
defendants' motion to dismiss plaintiff's defamation claim.
The elements of a fraud claim under Florida law are: "a false
statement concerning a material fact; the representor's knowledge
that the representation is false; an intention that the
representation induce another to act on it; and consequent injury
by the party acting in reliance on the representation." 27 Fla.
Jur.2d Fraud and Deceit § 7 (1999).
It is well established that the media "has no special privilege
to invade the rights and liberties of others," and that
"generally applicable laws do not offend the First Amendment
simply because their enforcement against the press has incidental
effects on [the press's] ability to gather and report news."
Cohen v. Cowles Media Co., 501 U.S. 663, 669-70, 111 S.Ct.
2513, 115 L.Ed.2d 586 (1991) (quotations and citation omitted).
Nevertheless, where a plaintiff brings a tort claim other than
defamation to impose liability on the press for the publication
of allegedly false and harmful statements, these claims may be
subject to the strictures of the First Amendment. See Hustler
Magazine v. Falwell, 485 U.S. 46, 56, 108 S.Ct. 876, 99 L.Ed.2d
41 (1988) (holding public figure may not recover for intentional
infliction of emotional distress by reason of offensive parody
without additionally meeting the constitutional requirement that
parody made false statement of fact with actual malice). This
particularly holds true where tort claims threaten to hinder "the
free flow of ideas and opinions on matters of public interest and
concern," including by restricting what the press may publish.
Id. at 50-51, 108 S.Ct. 876.
Although the court is troubled by plaintiff's allegations of
defendants' fraudulent behavior in obtaining permission to film
La Luna, plaintiff's claim for fraud nevertheless must fail
because it impermissibly threatens "to punish the expression of
[even] truthful information or opinion." Cohen, 501 U.S. at
675-76, 111 S.Ct. 2513 (Blackmun, J. dissenting). Plaintiff's
complaint alleges damages of no less than $1,000,000 for injury
to plaintiff's reputation allegedly caused by defendants'
fraudulent conduct. (Cplt. ¶ 39.) If allowed to proceed on this
claim, plaintiff could succeed regardless of its defamation claim
and the truth or falsity of the broadcast. Such a result
threatens to circumvent the constitutional requirement that a
media defendant may not be held liable to a private figure for
reputational injury caused by publication of defamatory
statements that are true and at least not negligently reported.
Gertz v. Robert Welch, Inc., 418 U.S. 323, 347, 94 S.Ct. 2997,
41 L.Ed.2d 789 (1974).
The court's dismissal of plaintiff's fraud claim on this ground
is not inconsistent with Cohen, which established that a
plaintiff may recover damages under a theory of promissory
estoppel when a newspaper does not honor promises made to obtain
information from a plaintiff. Cohen, 501 U.S. at 671, 111 S.Ct.
2513. The United States Supreme Court distinguished Cohen from
cases like the instant case, where a plaintiff attempts to use
different tort claims "to avoid the strict requirements for
establishing a libel or defamation claim," or to seek "damages
for injury to his reputation." Id. In Cohen, the Supreme
Court held that the plaintiff was not attempting to bring a
defamation claim through another tort vehicle; however, in this
case, plaintiff's fraud claim is based on the same alleged injury
to his reputation as his defamation claim. Defendants' motion to
dismiss the fraud claim is therefore granted.
"A trespass on realty is defined as an injury to, or a use of
of another by one who has no right or authority." 55 Fla. Jur.2d
Trespass § 4 (1999). Merely entering land without having the
right or the authority to do so constitutes a trespass. Guin v.
City of Riviera Beach, 388 So.2d 604, 606 (Fla. Dist.Ct.App.
1980). Damages for trespass are based on injury to plaintiff's
rights in the possession and use of his property, but nominal
damages may be awarded where the trespass caused no actual
damages. 55 Fla. Jur.2d Trespass § 16.
Plaintiff's complaint alleges that defendants' agent entered
its premises wrongfully and without legal right. (Cplt. ¶ 42.) As
a result, plaintiff alleges damages no less than $1,000,000.
(Cplt. ¶ 45.) Plaintiff, however, fails to allege that defendants
interfered in any way with its use or possession of its property.
Insofar as plaintiff's claim for damages for trespass relies,
then, on alleged injury to its reputation from defendants'
broadcast, it must fail for the same reasons as its fraud claim.
However, plaintiffs memorandum indicates that plaintiff also
argues for nominal damages. Florida law entitles plaintiff to sue
for nominal damages and, for this reason, defendants' motion to
dismiss the trespass claim is denied.
For the reasons stated above, defendants' motion to dismiss
with prejudice is granted as to plaintiff's claim for fraud, and
denied as to plaintiff's claims for defamation and trespass.
IT IS SO ORDERED.