“Who better than a jury to settle that question” said Judge Jose R. Rodriguez at the end of the first week of the defamation case brought by Winter Garden businessman Richard Mask against Guetzloe, the political consultant and host of The Guetzloe Report.
Mask is suing Guetzloe for defamation, claiming that in January 2006 the radio talk show host implied that he was a pedophile on the air. Guetzloe has denied that, and said he was questioning whether Mask was looking for code violations in a mobile home park that city leaders had been trying unsuccessfully to shut down.
Mask’s attorney, Howard Marks, spent most of Friday grilling Guetzloe on the witness stand about his comments and what he meant by them. By mid-afternoon, Marks said the plaintiff would rest, and Guetzloe’s attorney, Fred O’Neal, asked the judge for a directed verdict that there was insufficient evidence to sent the case to the jury.
O’Neal asked the judge to consider “the totality of the statements made by Mr. Guetzloe” over the course of the one-long broadcast, and to consider that Guetzloe repeatedly “uses cautionary words like ‘apparently,’ ” which should make it clear he was not making a definitive statement about Mask’s sexual behavior.
“We believe the the statements made by Mr. Guetzloe are not actionable,” O’Neal said, adding that for the case to go to the jury, there would have to be clear evidence that Guetzloe either knew his comments were false, or showed reckless disregard for whether or not his statements were false. The plaintiff, he said, simply hadn’t made that case.
Judge Rodriguez, though, said that was an issue the jurors had a right to decide.
“Is any of this question of credibility for the jury to determine?” he asked O’Neal. “If I were to go ahead and issue the directed verdict, how would I not be overstepping the jury?”
O’Neal said the judge still had the ability to uphold Guetzloe’s free speech rights in this case by dismissing the lawsuit, and saying “ ‘This is awful, I wouldn’t say it, but God bless it, that’s a First Amendment issue.’ “
Marks countered that when Guetzloe made an apology on his radio show the next day, saying he had never meant to imply that Mask was a pedophile, he had actually acknowledged just how reckless his statements were to begin with.
“We do not think this was done in good faith,” Marks said. “We challenge that it was an apology, your honor. It only made things worse.”
Saying on the air that Mask was trolling for young boys fit the definition of slandering someone, Marks said.
“We think this is absolutely clear this is defamation,” he said.
Marks also argued that Mask, who had previously served on Winter Garden’s zoning board, was no longer holding that office and therefore was a regular citizen, not a public official, when Guetzloe made his comments, so this did not fall under the category of being part of a heated political battle.
Guetzloe has argued that Mask had sided with the city officials who favored shutting down the mobile home park called Trailer City so it could be sold to wealthy developers. He said a city commissioner who opposed closing the park, Carol Nichols, had reported to him that Mask was seen in the park talking to several young boys, and park residents wanted to know if he was looking for code violations, since the park was supposed to be zoned as being age 55 and older.
Mask has denied that and testified that he had not taken a position on the closing of the park. He also testified that if he spoke to any boys in the park, it was his son and the other children the boy played with.
Marks said it would be impossible for Guetzloe to suggest his comments about Mask were part of the ongoing political controversy since Mask no longer held public office.
“There’s no evidence that at the time the statements were made, he was a public figure,” Marks said.
Judge Rodriguez said it appeared clear to him that the plaintiff was making the case that the defamation suit relied primarily on Guetzloe’s use of two words, “cruising” and “trolling,” and “the construction of those two words and their meaning in the community.”
The judge also noted that in 2006, Mask served on the city’s canvassing board, which he said was a major responsibility, and noted “We may have someone who is a quasi-public figure.”
And if Mask was known for his service on city boards, the judge noted, and Guetzloe viewed him that way, “Would you not characterize this as something said in the heat of political battle in an effort to endear himself to the people of Trailer City?”
The bottom line, the judge said, is that the case doesn’t appear to him to tilt heavily in favor of either side at this stage of the trial.
“I don’t think it’s a black and white situation, it’s in shades of gray,” he said.
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Judge Rodriguez is part of the downtown elite, No surprises here.