(I think the request for relief is wildly overbroad - I very much doubt that a Florida court would or even could issue an order limiting development of AI models by a CA firm, such that it affects the entire country.)
Derek Bambauer
@dbambauer.bsky.social
1.3K followers 99 following 39 posts
Irving Cypen Professor of Law, University of Florida Levin College of Law. AI and alligators, with sides of patents, Internet censorship, and cybersecurity. Loves SCUBA diving, cats, Boston Red Sox, Legos, and cartoons.
![Next, Moore argues that SMP’s intent or recklessness can be inferred from the ad itself. According to Moore, “the phrase ‘One he approached’” in frame 3 “necessarily refers back” to the statement in frame 2, that “‘Moore was actually banned from the Gadsden Mall . . . for soliciting sex from young girls.’” Thus, he maintains that in reading these two frames together “[i]t is impossible that an average viewer of that ad would not believe that Moore solicited sex from Wendy Miller when she was 14.” In other words, Moore contends that the defamatory implication is the “most obvious message of the ad,” and SMP therefore must have intended the defamatory implication or otherwise acted with reckless disregard to it. Moore’s contention, however, conflicts with the Supreme Court’s directives concerning actual malice. Again, the actual malice standard is deliberately subjective. See N.Y. Times, 376 U.S. at 279–80; Harte-Hanks, 491 U.S. at 688. As a result, “constitutional malice does not flow from a finding . . . [that] the [ad] may be capable of supporting the impression [the plaintiff] claims.” Newton, 930 F.2d at 681; see also Dunn, 193 F.3d at 1200 (explaining that “[i]t is the Defendants’](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:24vva42nxim6zbcmnozegoef/bafkreigfk7j5wmf7g6l7pia4nsq3qrlpdqgn4k3sqcasai6zz3n7cm3mb4)
![subjective view” at the time the communication was made, not the plaintiff’s “subjective impression” of that communication, “that determines whether [the communication was] issued with actual malice”). This principle holds true even if the “impressions were clear and unescapable.” Newton, 930 F.2d at 680 (quotations omitted). “Simply because a statement reasonably can be read to contain a defamatory inference does not mean” that “the publisher of the statement either intended the statement to contain such a defamatory implication or even knew the readers could reasonably interpret the statements to contain the defamatory implication.” Saenz, 841 F.2d at 1318 (quotation omitted); see also Kendall, 716 F.3d at 91–93. To conclude otherwise would allow a defamation plaintiff to hold a defendant liable for defamatory implied statements negligently conveyed, rather than only for defamatory implied statements the defendant knowingly intended to convey or recklessly conveyed, which would eviscerate the First Amendment protections that the Supreme Court established in New York Times and its progeny. Thus, although we agree that the statements in frames 2 and 3 of SMP’s ad could convey the implication that Moore solicited sex from Miller when she was 14 and working at the mall as Santa’s helper, that fact is not clear and convincing evidence that SMP intended that implication or recklessly disregarded that the ad conveyed that implication, which is the critical inquiry. See Newton, 930 F.2d at 681; Saenz, 841 F.2d at 1318; Kendall, 716 F.3d at 91–93.](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:24vva42nxim6zbcmnozegoef/bafkreihdrotcs3gwxo4nxfzzcksyoqjpxkdog7lds6h24u2dqjyoxevllm)
