Defamation

B. There is no dispute between the parties as to these fundamental principles. The dispute centers about the district court’s conclusion that ‘whether a given writing is or is not libelous per se is a question of law for the Court to determine’. The court below found that Florida ‘appellate decisions do not disclose any clear statement that the existence of libel per se is a question for the Court and not for the jury, (but) the Court interprets cases (throughout the United States) as establishing this as a sub silentio proposition of Florida law’. We find that the general law and Florida law are in agreement with Dean Prosser’s conclusion: ‘It is for the court in the first instance to determine whether the words are reasonably capable of a particular interpretation, or whether they are necessarily so; it is then for the jury to say whether they were in fact understood as defamatory. If the language used is open to two meanings * * * it is for the jury to determine whether the defamatory sense was the one conveyed.’ [Cc] [The Draft Restatement] expresses the rule as follows: “(1) The Court determines (a) Whether a communication is capable of bearing a particular meaning, and (b) Whether that meaning is defamatory. (2) The jury determines whether a communication, capable of a defamatory meaning, was so understood by its recipient.” * * *business, trade, profession or office. Both judge and jury play a part in determining whether language constitutes libel. * * *

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