President Trump's Defamation Suit Against the BBC Survives Motion to Dismiss

By John R. Byrne

We've covered quite a few First Amendment lawsuits on the blog in recent years, including several brought by President Trump. At the center of these lawsuits has been the N.Y. Times Co. v. Sullivan standard, which requires public figures bringing defamation claims to prove "actual malice"—meaning that the defendant knew the statement was false or acted with reckless disregard for whether it was false. It's a difficult standard for plaintiffs to satisfy (or even plead), and several of our judges (including Judge Lagoa and Judge Singhal) have criticized it as a made-up rule with little grounding in the Constitution's text or original meaning.

Our district's newest federal judge, Judge Kuntz, has similar feelings about the Sullivan standard. Despite those reservations, he recently held that President Trump's allegations satisfied the standard, at least at the pleading stage.

The case at issue is President Trump's lawsuit against the BBC, which we've covered before. The BBC ran a 12-second clip of Trump's January 6 speech in which it appears that Trump said the following: "We're going to walk down to the Capitol and I'll be there with you. And we fight. We fight like hell and if you don't fight like hell, you're not going to have a country anymore."

The problem was that he never strung those words together. Instead, the BBC stitched together statements made nearly 55 minutes apart. I created the below table to give you a flavor of just how Frankensteined the statement was:

Actual Statements	Stitched Together Version
“Now it is up to Congress to confront this egregious assault on our democracy. And after this, we’re going to walk down and I’ll be there with you. We’re going to walk down, we’re going to walk down. Anyone you want but I think right here, we’re going to walk down to the Capitol and we’re going to cheer on our brave senators and congressmen and women, and we’re probably not going to be cheering so much for some of them”	“We’re going to walk down to the Capitol and I’ll be there with you. And we fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.”
“[B]ut I said ‘Something’s wrong here, Something’s really wrong, can’t have happened.’ And we fight, we fight like hell, and if you don’t fight like hell, you’re not going to have a country anymore”

Feels like something a bad guy would do in an '80s movie, right? Maybe one with an English accent? The BBC later apologized, acknowledging that the editing created the mistaken impression that Trump had directly called for violence.

Judge Kuntz relied on the nature of the splicing, the BBC's apology, and other circumstantial evidence to find that Trump had plausibly alleged actual malice. 

You can read the whole order here. 

Judge Shelby Highsmith

 

By John R. Byrne

Been a while since our last portrait post. Seeing as today is Veteran's Day, it makes sense to feature one of our judges who served in the military: Judge Shelby Highsmith. He served in the Army from 1949 to 1955, including service in the Korean War and reached the rank of captain. For his service, Judge Highsmith received the Bronze Star. A Bronze Star is awarded to service members who distinguish themselves through heroic or meritorious achievement or service in connection with military operations against an armed enemy.

Judge Highsmith had an interesting judicial career. He started out as a state court judge, serving on the Miami-Dade Circuit Court from 1970 to 1975. He then returned to private practice. Then, in 1991, he jointed the federal bench. I can't think of another judge who had a substantial gap in his or her judicial service. 

Another notable fact about Judge Highsmith? One of his law clerks was former Magistrate Judge Otazo-Reyes.

FBA write up below. On behalf of the SDFLA Blog, thank you to all of our veteran readers out there. 

Judge Shelby Highsmith was nominated to the district court in 1991 by President George H.W. Bush. A native of Jacksonville, Judge Highsmith served in the United States Army from 1949 to 1955. He attended college and law school in Kansas before relocating to South Florida to work in private practice. He served as a state court judge in the Circuit Court before being named to the federal bench. Judge Highsmith presided over a number of notable cases, including civil litigation related to the raid that removed Elián Gonzalez from the Miami home of his relatives. In a 2001 decision, Judge Highsmith ruled that qualified immunity did not bar Bivens claims brought by Elián’s relatives against Attorney General Janet Reno and other federal officials—a decision later reversed by the Eleventh Circuit Court of Appeals. Gonzalez v. Reno, et al., Case No. 01-CV-14475.

"Ham-fisted"

 That's how Judge Leibowitz described certain statements made by the Miami Supervisor of Elections.  Ultimately though, he did not disqualify her.  From the Miami Herald:

A federal judge in Miami on Monday rejected an emergency request to block Miami-Dade Elections Supervisor Alina Garcia from overseeing a recount in the tight congressional race between Republican Rep. María Elvira Salazar and Democrat Eliott Rodriguez, while sharply criticizing the remarks that prompted the lawsuit. U.S. District Judge David S. Leibowitz ruled that Garcia’s controversial election-night comments and her family connection to Salazar’s lawyer were insufficient to justify removing her from the county canvassing board.  

The ruling came shortly before the machine recount was scheduled to begin. Although Leibowitz denied Rodriguez’s request for a preliminary injunction, he questioned Garcia’s declaration that Salazar had won the election “with or without a recount,” describing that portion of her remarks as “ham-fisted” and, at another point, “a really dumb statement to make.” The comments, originally reported by the Miami Herald, became a central focus of Monday’s hearing as Leibowitz pressed attorneys about the full context of Garcia’s statement and whether it supported allegations that she had prejudged the election. The judge called the Miami Herald “a paper of record in this town since before I was born,” but questioned whether excerpts from a newspaper interview provided sufficient evidence to remove a public official from her election duties. Rodriguez’s attorney, Juan-Carlos Planas, acknowledged that his legal team had relied on the Herald’s published quotations without obtaining Garcia’s complete statement.

BREAKING -- U.S. Attorney Jason Reding Quinones resigns

 

I don't have the scoop, so if you know what happened, please let me know. All anonymous tips welcome. Here is the AG's post about it:

United States Attorney for the Southern District of Florida Jason Reding Quiñones submitted his resignation from the Department of Justice. We are grateful for Jason’s leadership in combatting violent crime, drug trafficking, sex trafficking, and transnational crime, including the indictment of Raúl Castro. Jason has served the Department multiple times over his distinguished career, and we thank him for his service to this country.

— Attorney General Todd Blanche (@AGToddBlanche) November 6, 2026

Old Judges, Older Laws

By John R. Byrne

Justice Ruth Bader Ginsburg upset a lot of Democrats when she declined to retire during President Obama's presidency. She ultimately died in office in 2020, allowing President Trump to nominate her successor, Justice Amy Coney Barrett.

Now, Republicans have a bone to pick with Justices Clarence Thomas and Samuel Alito. Both are getting up there in age (78 and 76, respectively), and had they retired at the beginning of President Trump's second term, he almost certainly could have appointed two younger conservatives to the Court. But with Democrats winning control of the Senate in last night's elections, that's going to be considerably more difficult.

I don't know what it is about judges, but they sure seem to have a difficult time retiring. I guess the job is really that good. 

In more local news, Judge Ruiz issued what appears to be the first ruling of its kind in the Eleventh Circuit addressing a Second Amendment challenge to 18 U.S.C. § 922(g)(8)(C)(ii).

Here's the background. Federal law prohibits individuals subject to certain domestic violence restraining orders from possessing firearms. In 2024, the Supreme Court upheld that prohibition in United States v. Rahimi, but only where the restraining order included an express judicial finding that the individual posed a credible threat of violence. The Court left open whether the prohibition was constitutional when the order merely prohibited violent conduct, without an express finding of dangerousness.

Enter United States v. Schiller. A Broward County judge had entered a domestic violence injunction against Schiller but expressly declined to make any findings that he had committed or threatened violence. When federal agents later discovered a firearm in Schiller's home, he was indicted and challenged the law's constitutionality.

Judge Ruiz rejected his challenge. Relying in part on 19th-century "surety laws," which required individuals posing threats of violence to post bonds to keep the peace, Judge Ruiz concluded that Florida's injunction process provided sufficient safeguards. Even without an express finding of dangerousness, the issuance of the injunction necessarily implied that the state judge had determined Schiller posed a credible threat. So, the prosecution could proceed under subsection (C)(ii). 

You can read the opinion here.

More Lawyers Sanctioned for Improper Use of AI

By Jordi C. Martínez-Cid

More local AI-related news as administrative orders have come out sanctioning attorneys.

In Multiphone Latin America, Inc. v. Millicom International Cellular S.A., No. 25-cv-23249, Chief Judge Altonaga found that the brief cited two hallucinated Florida appellate cases that appear not to exist and quoted language absent from the cases it cited. The lawyers’ proposed sur-reply then misquoted more cases, in places presenting Westlaw headnotes as quotations from the opinions themselves.

In Dubinin v. Papazian, No. 25-cv-23877, Judge Ruiz identified at least ten fabricated or misrepresented citations and quotations in the plaintiff’s complaint and response brief. The Florida lawyer who signed it said a New York lawyer had drafted it. The New York lawyer had never appeared or sought pro hac vice admission, and she said a legal assistant had used AI.

Administrative Order 2026-87 and 2026-95 referred the lawyers in those cases to the Peer Review Committee and The Florida Bar. The lawyers had to take CLEs, pay monetary sanctions, and write letters of apology. Continuing moral of the story is do not be “that guy” (or gal). As in Dubinin, do not rely on out-of-state counsel to ensure compliance with the rules.

Judge Gayles tosses Trump’s suit against the Wall Street Journal: “Grasping at straws”

By David Oscar Markus

Judge Darrin Gayles dismissed President Trump’s defamation case against the Wall Street Journal on Friday with prejudice.  Here's the Order.

The suit was over the Journal’s July 2025 story about the birthday letter to Jeffrey Epstein. Trump says he didn’t write it. He sued Dow Jones, News Corp., Rupert Murdoch, Robert Thomson, and the two reporters.

The order opens with New York Times v. Sullivan: “fear breeds repression; that repression breeds hate; that hate menaces stable government.” 

Trump’s main theory was that his denial should have stopped the story. The court didn’t buy it:

“In effect, President Trump argues that once he declared the Letter a ‘fake,’ Defendants should have disregarded everything else they learned in their investigation and not published the story. But that is not what the actual malice standard requires and runs afoul of the First Amendment.” (p. 15)

If that were the law, the court said, “any time a public figure or his team denies an accusation, journalists would be immediately blocked from publishing negative or contradictory press.” (p. 15) The Journal had also printed the denial, in Trump’s own words.

On the attacks against the reporting itself: “Grasping at straws, the Amended Complaint attempts to manufacture flaws with the investigation.” (p. 16) The court called the Journal’s work “a thoughtful and detailed investigation.” (p. 15)

Trump also leaned on the Journal’s follow-up piece comparing signatures, arguing his signature “could not be more different” from the one on the letter. The court pointed out that the same piece “contains several examples where President Trump’s actual signature and sketches are similar to those in the Letter.” (p. 18)

Bob Martinez's Next Project

By John R. Byrne

Before he retired, my dad was a longtime lawyer here in Miami who worked downtown. One day, while making his morning pilgrimage north on US-1, his car unexpectedly broke down. As he stood stranded on the sidewalk, wearing a full suit in sweltering heat, another car pulled over. The driver rolled down the window, and said, "Hey, Bob, looks like you're in a bit of bind. Can I give you a lift?"

The driver was Bob Martinez. My dad and Bob weren't longtime friends. In fact, they'd only met once or twice before (I think my dad was surprised that Bob remembered his name). But that tells you a lot about the kind of guy Bob is. Yes, he's one of our living legal legends. US Attorney under President George H.W. Bush. A distinguished career in private practice at one of our country’s best Plaintiff’s firms, Colson Hicks Eidson, where he most recently helped secure a victory at the United States Supreme Court. But, at his core, he's a person who wants to help people. And, now, he is focusing on an issue where his help is needed: the security of our federal judges. 

Threats against our judges are at an all-time high. And it’s an equal opportunity danger. Judges appointed by Republicans have been threatened. Judges appointed by Democrats have been threatened. And it seems like every day it gets worse. It’s unclear what we can do about it. But that’s not stopping Bob. Aided by Judges Bloom and Seitz, Bob has recruited a team of lawyers to tackle this issue. The idea is for the lawyers to come together and brainstorm different approaches to addressing this alarming trend. My own idea is sort of a “scared straight” approach. A series of short, social media-friendly ads that, in stark terms, informs the public of the serious criminal consequences that flow from threatening a judge. I'd like to think that targeted social media advertising could get that message to some of the people who most need to hear it.

Check out Bob's recent op-ed on this topic in the Miami Herald. And if you have ideas about how to help, please contact Bob at bob@colson.com.