First Amendment claims seen as Rx for drug makers, headache for consumers

By Paul Raeburn, FairWarning 

Quentin Lueninghoener/ FairWarning

On Oct. 26, 2005, Alfred Caronia, a sales consultant for a little-known pharmaceutical company based in California, met with a doctor to discuss promotion of one of the firm’s  drugs.

The drug, a depressant called Xyrem, had been approved by the U.S. Food and Drug Administration to treat only certain patients with the sleep disorder narcolepsy. But Caronia maintained, in a conversation with a doctor that was recorded by federal investigators, that the drug could be used to treat an array of other sleep and muscle ailments. (more…)

Far right uses Fla. stand-your-ground law to recruit for white supremacist rally at UF

By Noreen Marcus, FloridaBulldog.org 

White supremacist Richard Spencer

Far-right social media users offer a special lure for meeting at the University of Florida: the state’s broad “stand your ground” self-defense law.

After lengthy negotiations, white supremacist Richard Spencer will speak at the university’s Phillips Center for the Performing Arts on Oct. 19. The date, finalized this week, was reported by a counter-protest group that is organizing online and confirmed by Spencer’s lawyer.

The university announced late Thursday that Spencer has signed a contract to pay $10,564 to rent the center and for security, the maximum he can be charged. The university, however, must pay “at least $500,000 to enhance security on campus and in the city of Gainesville,” according to its statement.

“Although UF leadership has denounced Spencer’s white supremacist rhetoric, the University, as a state entity, must allow the free expression of all viewpoints,” the statement says.

Concerns are rampant that the Gainesville campus may host a clash between extreme-right zealots and impassioned anti-fascists such as the deadly Aug. 12 rally at Charlottesville, VA.

A Facebook group called “No Nazis at UF” is calling for protests against Spencer’s speech. “We must not allow fascists to have a public platform. We must stand together in the fight against white supremacy and fascism, and defend the most marginalized of our communities,” the Facebook post states.

Responses show that 2,500 say they will attend, while another 6,500 say they are interested in the event.

UF President Kent Fuchs denied a rental permit to Spencer’s group, the National Policy Institute, shortly after Charlottesville. By then, university officials had processed the stand your ground enticement.

“Officials confirm that social media chatter is already underway, with profanity and threats being made to the point of referring to guns and Florida’s stand your ground law,” newstalkflorida.com reported on Aug. 14.

Battle lines being drawn

Those officials weren’t being paranoid.

“If there was a time for a false flag this would be it, you can basically open carry and pop someone for saying ‘I’m going to kill you,’” said a poster to a forum on 4Chan, a bulletin board for anonymous, anything-goes exchanges. The term “false flag” refers to covert operations that conceal the true identity of responsible parties.

References to stand your ground inspired blowback. CNN retweeted “Hearts in Spades@imler_chris” commenting on Fuchs’s decision: “Discussions about using stand your ground laws to kill counter-protesters. Safety of students who pay to go to this school is paramount.”

The university has no comment about stand your ground, spokesperson Margot Winick wrote in an emailed response to questions. She noted that under state law, firearms are prohibited on UF property unless they are “securely encased in vehicles, and with permits.”

Spencer’s Gainesville lawyer, First Amendment specialist Gary Edinger, said Spencer does not want to spark violence when he speaks at UF.

“No intention” to incite violence

“My client assures me they have no intention of direct incitement, they have every intention of speaking their minds,” he said. “I don’t think the possibility of violent protests by crazies is going to determine my client’s First Amendment right.”

Edinger said he didn’t know why the university postponed the gathering, first set for Sept. 12, but speculated that officials “still perceive feelings about Charlottesville as too raw. Perhaps they don’t want to dishonor the victim of Charlottesville,” referring to counter-protester Heather Heyer, 32, who was killed.

Spencer’s lawyer insists the Oct. 19 event will be a “speech.” But if those who ​are​ trying to ​attract a sympathetic​ crowd succeed, it will be a rally that will likely pit pro-Spencer attendees against anti-Spencer protesters.

Florida’s pioneering 2005 stand your ground law, touted as a model by the National Rifle Association, justifies the use of deadly force in order to protect oneself or others against threats of harm, either real or perceived. It eliminates the longstanding duty to retreat.

Controversy over the law peaked in 2013 when policeman wannabe George Zimmerman was acquitted in the shooting death of Trayvon Martin, 17, setting off a nationwide debate over race and stand your ground. Attempts in Tallahassee to tighten or repeal the law failed repeatedly; meanwhile, the U.S. Commission on Civil Rights investigated the law’s disparate impact on blacks and whites.

Former Attorney General Eric Holder condemned stand your ground for “senselessly expand[ing] the concept of self-defense” in a 2013 speech to the NAACP in Orlando.

This year Florida legislators strengthened the law, and critics attacked the revisions for unfairly tasking prosecutors and favoring defendants. “This expansion would place an enormous burden on our state’s hardworking prosecutors, and further create a ‘shoot first, ask questions later’ culture,” Michelle Gajda of Moms Demand Action for Gun Sense in America said before Gov. Rick Scott signed the bill into law, according to WUFT in Gainesville.

Stand your ground

This apparently is the first time the law, now widely used, is a factor in the national schism over racist and neo-Nazi activities. Whether marketing stand your ground as a tactic – like shouting “fire” in a crowded theater–could be used to deny free speech to a racist or a neo-Nazi, is untested in court and debatable.

Earlier this year, after Auburn University in Alabama tried to stop Spencer from speaking there, he asserted his First Amendment right in federal court and won. Outside the auditorium where he spoke on April 18, police clashed with demonstrators and made three arrests for disorderly conduct.

The tragedy of Charlottesville, where a self-proclaimed neo-Nazi drove a car into a crowd of counter-protesters, killing Heyer and injuring 19 others, seems to have empowered other universities to deny Spencer a forum. In addition to UF, Texas A&M, Penn State and Michigan State University have resisted his appearance.

First Amendment scholar Robert O’Neil, a former University of Virginia president, said he’s no fan of the stand your ground law. He agrees with Holder that it adds nothing good to the idea of self-defense.

O’Neil said using the law to publicize an event that’s likely to turn violent should be irrelevant to the right to speak freely. Still, he said, after Charlottesville it would be “entirely appropriate that a judge would take stand your ground into account to decide that this constitutes a genuine threat of violence.”

“It just needs a good ACLU lawyer or someone willing to take on the issue,” O’Neil said. “It probably is not a popular position to take, but I think there are merits to taking another kind of stand your ground.”

Prominent developer targets anonymous blogger in First Amendment battle

By Lynn Walsh, BrowardBulldog.org

Raanan Katz

A First Amendment battle has erupted between a prominent South Florida developer and a blogger, who so far has only been identified as “John Doe.”

Raanan Katz, a minority owner of the Miami Heat, and his family-owned company R.K. Associates are suing the anonymous blogger for defamation and libel for reports he claims are false and malicious.

The blogger’s Fort Lauderdale attorney, Robert Kain, argues in court papers that his client is a “citizen journalist” deserving of First Amendment protection because his reporting on Katz is about “matters of public concern.”

“Doe is an anonymous citizen journalist critically reporting what he considers to be abusive litigation tactics and prior criminal convictions by a well know public person Raanan Katz and Katz’ companies,” the papers say.

Katz filed the case in state court in June, but it has since been removed to federal court in Miami. Katz dropped an additional claim for false advertising against the blogger last week.

“The true thrust of our case is defamation,” said Todd Levine, a Miami lawyer for Katz and the company.

Kain calls Katz’s litigation a “classic slap suit” by a big developer seeking to suppress a critic.

“There is no defamation, you can read it,” Kain said in an interview. “Mr. Katz needs to realize that sometimes in doing business you will be criticized.”

In the blogger’s defense, Kain includes the assertion that his client has a First Amendment right to “maintain his anonymous status.”

Levine calls the nameless blogger a “coward hiding behind the cloak of the Internet.”

Katz’s son, Daniel Katz, vice president and owner of the company, is also a plaintiff against John Doe. The blog details previous legal battles and activities involving Raanan, his son and their real estate company.

KATZ AND HIS PROMINENCE ARGUED

R.K. Associates owns over six million square feet of commercial space in Florida and New England, including 14 shopping centers in South Florida, the company website says. Their properties include two in Hallandale Beach and the landmark Searstown Plaza in Fort Lauderdale.

The privately-held company was founded by the elder Katz, who remains the principal owner of the company.

Katz, an Israeli immigrant, has a street named after him in Sunny Isles Beach, according to news articles.The renaming of Northeast 170th Street at Collins Avenue was done as part of a $7 million eminent domain settlement with the city.

The elder Katz was called “one of the most prolific real estate owners in Miami-Dade” in a 2008 article inMiami New Times.

John Doe publishes articles about the Katzes and their real estate company in the blog  in called “RK Associates.” It is published free on blogspot.com, a Google-owned company. The domain is RKAssociatesUSA and the information is also posted on a second website based in the United Kingdom.

The archive on the U.S. site shows 22 posts about Katz and his company starting in May.

“There are some things that are taken from other people’s claims that may not be defamation,” Levine acknowledged. “But there are other parts that really surpass opinions and come out to be a conclusion or moral of a story…to [falsely] show that the company and my clients are ‘criminals’…a clear indication that my clients are bad people.”

The blog details previous legal battles and activities involving Raanan, Daniel and their real estate company. A recent post claims the company “ripped off the single mother of a special needs child.”

According to a post dated July 24: “RK Associates, Raanan Katz, and Daniel Katz automatically renewed her lease, without her knowledge and consent, from January 1, 2009 for the next five years and filed legal action against her claiming damages for five years in advance in the amount of about quarter a million dollars.”

Levine said some content posted by John Doe is accurate, but the lawyer did not elaborate on what was true.

TRUTH AS A DEFENSE

Attorney Jon Kaney, a board member of the Florida First Amendment Foundation, said the blogger has a First Amendment right to publish stories if what is being said can be supported by facts.

“The blogger’s opinion, if it is based on facts that he has disclosed or in this case linked to, and he tells the reader what the company is doing and then shares his opinion that he believes it is inappropriate or whatever the case may be, then that’s protected.”

Kaney is a partner at Cobb & Cole in Daytona Beach.

“Truth is always a defense to defamation,” Levine acknowledged. “But [the blogger] would have to prove this. And this person signs off every post with ‘always true.’ He is saying, this is the only spot where you are going to find information about my client.”

Other articles on the blog discuss alleged racketeering charges against the Katz’ and their company and allegations of falsely asking for rental reimbursement associated with a property the company owns.

Levine says the blogger and his lawyer are trying to make people believe Raanan Katz is a public figure, which would require Katz to offer a higher level of proof to win in court. The Katzes “are not Donald Trump-type businessmen that make themselves out to be celebrities. He owns shopping centers; he doesn’t have a radio show; he doesn’t have a magazine like Oprah;, he isn’t on red carpets.”

Having Sunny Isles Beach name a street after the developer isn’t enough to make him a public figure, Levine argues.

“If I told someone to meet me at Raanan Katz Boulevard they wouldn’t know where that was,” Levine said, comparing the street named after Katz to a school driveway.

Sunny Isles Beach has also named a public gymnasium after Katz and his wife.

Raanan Katz was an original partner of the expansion franchise for the Heat and has “been a fixture at courtside” games since the team’s inaugural season in 1988, according to the company website.

WHO IS JOHN DOE?

While much is publicly known about Raanan Katz, that can’t be said for his critic.

On one of his blogs, Doe identifies himself only a male living in Boston.

The Katz complaint initially accused “John Doe” of being a competitor. But Levine has backed away from that contention, and now says he believes Doe “is a disgruntled employee or disgruntled tenant,” he said.

Either way, Levine intends to find out precisely.

He said a subpoena has been issued to Google in an attempt to unmask John Doe.

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