From Tate v. Fox News Network, LLC, issued yesterday by Judge Gregory Presnell of the Middle District of Florida:
The plaintiff has held a Florida law license since 2006 and serves as the leader of the residential homeowners’ association for the Stillwater Lakes Subdivision, where he resides.
On April 14, 2024, the plaintiff was arrested by the Palm Bay Police Department and charged with criminal mischief and grand theft. The arrest stemmed from a probable cause affidavit (the “Affidavit”) that stated the following:
On 04/14/2024, Officer Barraza (#158) and Field Training Officer Marcum (#244) responded to a suspicious incident at Stillwater Lakes. The incident occurred on the south side of the lake within the Stillwater Lakes Subdivision, which belongs to the HOA, and not to the defendant.
Three juvenile victims who were fishing on the property reported that a man, later identified as Kyle Patrick Tate (the defendant), approached them with a firearm and ordered them off the premises. Tate allegedly deprived the juveniles of their property and hurled it into the woods, causing damage. The property involved included:
- Fishing reels and rods: $1,900
- Tackle boxes containing fishing lures: $150
- Cast nets: $150
Additionally, Tate took one of the juveniles’ phones, which has not been recovered (approximately $1,500).
Based on the above information, Tate allegedly deprived the victims of their property by taking the cell phone and willfully and maliciously damaged the fishing equipment (three fishing poles, fishing tackle). He was arrested for Criminal Mischief (over $1,000) and Grand Theft, taken into custody, and later transferred to Brevard County Jail.
On May 2, 2024, the defendants published an article about the incident with the headline: “Florida HOA president pulls gun on kids fishing on property: affidavit.” The article referenced the PBPD Affidavit and acknowledged that the children involved (identified as ages 7, 10, and 15) did not reside in the subdivision and that they were fishing on HOA property, not the plaintiff. It also included quotes from the mother of one of the children (the 10-year-old) such as: “A gun should’ve never been pulled on them,” said the mother, who asked not to be named in the piece. “It was startling. He’s still very shaken up knowing that we have to drive by this subdivision where this man lives.”
Later that day, the defendants’ national network published a similar piece before their local television affiliate aired the story as a “DEVELOPING STORY” and a “BIG STORY” (the “2024 Broadcast”). The broadcast displayed the plaintiff’s booking photo alongside a chyron stating: “BOOKING IMAGE/ATTORNEY ACCUSED OF APPROACHING KIDS WITH GUN, THROWING STUFF INTO WOODS[.]” Another on-screen banner, appearing only during the broadcast video embedded on the article site, read: “HOA president pulls gun on kids: officials[.]” Some versions of this banner carried the qualifier, “allegedly.”
On June 17, 2024, the state attorney’s office filed a Notice of No Information, declining to pursue charges against the plaintiff for the Stillwater Lakes incident. On October 6, 2025, the plaintiff’s arrest and all associated court and arrest records were expunged under Fla. Stat. § 943.0585 (which permits eligible individuals to petition for expungement of criminal history records when charges are discontinued).
On April 3, 2026, the plaintiff gave the defendants the statutorily required pre-suit notice, asserting that their reporting was false and defamatory and demanding, among other remedies, a retraction. In response, on April 10, 2026, the defendants aired a “STORY UPDATE” concerning the plaintiff’s arrest and the Stillwater Lakes incident (the “2026 Broadcast”). In this update, they referred to their original reporting and noted the plaintiff’s April 3 notice, then acknowledged that, after further review, the case had been expunged. They also stated that they had reached out to the plaintiff’s attorney for clarification but had received no reply. The 2026 Broadcast did not include the words “gun” or “firearm.”
The First Amended Complaint contends that the defendants’ reporting in the 2024 publication and the 2024 Broadcast was inaccurate and defamatory because it repeated allegations that the plaintiff was carrying a firearm, despite the fact that he was never charged with any firearms offenses. The plaintiff maintains that the sole source for the firearm allegation was a single Probable Cause Affidavit narrative attributed to the juvenile complainants and containing no firearms charge. He also asserts that the 2026 Broadcast was inadequate as a corrective publication and itself defamatory by implication and omission because it did not expressly state that no firearms charges existed and otherwise failed to rectify the perceived deficiencies….
Defendants enjoy a qualified privilege to report accurately on information provided by government officials. The privilege covers the publication of official documents, provided the account is reasonably accurate and fair. A report may be protected by the privilege even if it omits details or is not as precise as technical or scientific reporting. In other words, the press may exercise editorial discretion in what to publish.
The plaintiff argues that the defendants are liable for defamation because they claimed in the 2024 Broadcast (and related articles) that he “pulled a gun” on three children, rather than using the affidavit’s phrasing that he “approached them with a firearm” (the plaintiff concedes that the articles do employ those exact words in some places). He contends that “pointing or drawing a gun on a child” falls within aggravated assault—even though he was never charged with such a crime—and notes that the defendants “knew the difference” and nonetheless reserved this language for headlines and the 2024 Broadcast—allegedly to attract attention. {This paragraph includes additional commentary on the plaintiff’s argument and its basis.}
Crucially, the plaintiff does not dispute that he “approached” three youths—ages 7, 10, and 15—“with a firearm” and told them to leave his property. He acknowledges speaking to the children and does not deny that he held a firearm at the time; he merely claims that he did not approach any child in a threatening or predatory manner. Yet the defendants did not report that he did any of those specific acts—though the Affidavit would likely support such reporting. See Doc. 27-1 at 2 (describing a man approaching small victims “with a firearm” while accusing them of trespassing and “willfully depriving” them of their property, as well as “maliciously damag[ing]” their equipment). {The plaintiff’s assertion that frightened, unaccompanied children would not feel threatened by a stranger bearing a firearm, even if the weapon were not pointed, has little basis in现实—especially given the Affidavit’s depiction of the man as “maliciously” damaging the children’s property. The state’s decision not to pursue charges does not justify distorting the facts.}
Not only was the defendants’ reporting an accurate and fair portrayal of what the Affidavit described, but it also represented information of clear importance and news value to the local community. The plaintiff’s attacks on the supposed inapplicability of the fair report privilege mirror the frivolous nature of his First Amended Complaint.
First, the “substance or gist” of the defendants’ reporting plainly communicates essentially the same meaning as the information contained in the Affidavit. {No matter how the plaintiff tries to argue otherwise, the Affidavit tells a story that the defendants correctly conveyed. Compare Doc. 27-1 (Affidavit stating that the plaintiff “approached [3 juveniles] with a firearm telling them to get off his property”) with Doc. 46 at 18 (“The fact that Mr. Tate was charged with theft offenses does not make true the headlines that he pulled a gun on children.”).}
Second, the plaintiff’s objections to the use of “officials” and “court docs” are misguided and ultimately irrelevant to whether the reporting accurately reflected the official records. Booking photos are part of court records, and the involvement of more than one official supports the defendants’ plural usage. Moreover, including quotes from the mother of the 10-year-old victim does not undermine the privilege’s applicability—her remarks simply echo the Affidavit in her own words.
{The plaintiff’s arguments lack legal support; his citation to Heekin v. CBS Broadcasting, Inc. (Fla. App. 2001) for the proposition that including a mother’s quotes defeats the privilege is for the most part misplaced. That case was criticized and later disapproved by Florida’s Supreme Court; the appellate court there reversed a lower court’s fair reporting privilege ruling not on the facts here but on the absence of a demonstrated comparison between the broadcast and public records. The court here has already found that the defendants’ reporting accurately reflects the official records.}
Moreover, the mother’s remarks likewise accurately reflect the Affidavit—though with additional specifics (for example, the firearm allegedly used was a shotgun, which the plaintiff does not dispute). Her statement that “a gun should’ve never been pulled on them” simply mirrors the Affidavit and further supports the court’s earlier conclusion that the reporting was accurate. } …
The plaintiff’s theory that the 2026 Broadcast was defamatory bears even less weight. Under the plaintiff’s argument, the 2026 Broadcast, produced only at his request, would not be covered by the fair report privilege because the Affidavit and the original court records are (again, at his request) “not available to anyone except by court order”—in other words, there would no longer be any official record to support the reporting (or the privilege).
Setting that questionable point aside, the plaintiff forgets that this Court has jurisdiction to order disclosure of such documents. It is not necessary here, however, because the court has already reviewed the Affidavit (which remains accessible in the public docket for the case) and it fully supports the accuracy of the defendants’ reporting. {Moreover, the plaintiff’s public posting of the Affidavit with complete disregard for privacy in this suit further undermines the credibility of his claims.}
Having determined that the defendants’ initial reporting in 2024 was protected by the fair report privilege, they were under no obligation to “correct” any inaccuracies in 2026. Nevertheless, the update they issued complied with the plaintiff’s demand by clarifying that the criminal case against him had been expunged and that the State Attorney’s office had no record of it. Moreover, the brief, accurate summary they provided of their two-year-old initial reporting to frame this new information cannot support a defamation claim merely because the underlying records were expunged. This is especially true where the records themselves continue to exist and are presently on display in this record.
{Once again, the plaintiff’s unfounded claim that the defendants created “an implication” by omitting that the plaintiff was never charged with or convicted of any firearm offenses is without merit. The supposed implications arise only from the plaintiff’s decision to intervene in a relatively straightforward matter—young children fishing on disputed property—by approaching them with a firearm, demanding they leave, and, at least temporarily, commandeering and “maliciously” scattering and damaging their equipment.}
As the defendants observed, “[i]n the plaintiff’s view, if arrest records are eventually expunged, a news organization retroactively loses the right to report information from the original arrest affidavit.” Fortunately for society, the plaintiff’s framework for retroactively punishing news outlets is not the law. The critical time for evaluating the fair report privilege is the moment of publication. The defendants summed it up: “[t]he fact that the state expunged [the plaintiff’s] records more than a year after [the defendants] reported on his arrest does not retroactively give rise to a defamation claim, which must be based on facts as they existed at the time of publication.”
The plaintiff dislikes the story told by the Affidavit, but the defendants’ reporting was accurate and, therefore, protected by Florida’s fair report privilege. The plaintiff’s eventual success in obtaining a record expungement has no bearing on that conclusion or on the subsequent, accurate summary of the story….
I emailed the plaintiff, who offered the following remarks on the matter:
I am dissatisfied with the dismissal. The case concerns whether Fox fairly reported a police affidavit, not whether the affidavit’s portrayal of events was true.
I was arrested for criminal mischief and theft; there was no firearms charge. The State Attorney filed no charges, and the record was later expunged. The affidavit states that the children told police I approached them with a firearm and told them to leave. It does not say I pointed or pulled a gun, and I did not. My proposed amended complaint quotes broadcasts Fox filed with the court: an anchor said I was “accused of pointing a gun” at kids, and a reporter, citing a mother’s account, described a child running from a man “threatening him with a shotgun.” Those statements convey a materially different accusation from what the affidavit says. Fox’s article and on-screen caption, by contrast, used the affidavit’s language, “approaching.”
I dispute the arrest itself, and related claims are being prepared separately. I did not include my full account of that day in this case because the case does not hinge on it. My complaint denies that I pulled, pointed, or threatened anyone with a gun; beyond that, the question here is what the affidavit says and whether Fox reported it accurately. The press can fairly report an affidavit even when the affidavit is wrong. What it cannot do is attribute to the affidavit an accusation it does not make, as happened here.
I believe the court was mistaken in concluding that Fox’s reporting conveyed essentially the same meaning as the affidavit. The order did not analyze the broadcast’s assertion that I was “accused of pointing a gun.” And while it treated the shotgun as an extra detail, it never addressed the broadcast’s claim that I threatened a child with it. My opposition identified the broadcast statements, and my motion sought to plead them expressly. The court found amendment futile and denied leave as moot. In describing the motion, it focused on the dispute over the proper Fox entity without explaining why the proposed broadcast allegations would not cure the claim.
I support the press’s ability to report official records, but questions arise about the privilege’s limits that matter to more than just my case:
First, how much latitude does the privilege allow? A report needn’t be exact; it must provide a substantially correct account of the record. In Woodard v. Sunbeam Television Corp., 616 So. 2d 501, 502–03 (Fla. 3d DCA 1993), the court deemed a discrepancy immaterial because it would not have altered a viewer’s impression. The order asked whether Fox’s reporting conveyed essentially the same meaning as the affidavit, borrowing the substantial-truth standard from Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1107–08 (Fla. 2008). It reasoned that the concerns of frightened children would be affected by whether a gun was present, pointed or not. The fair-report inquiry is what viewers were told I did, and the difference between having a gun and pointing one at a child is precisely the distinction that can change a viewer’s belief about what occurred.
Second, what does attribution protect? “Accused of pointing a gun” is framed as reporting an accusation. But no one accused me of pointing a gun: not the police, who charged criminal mischief and theft, and not the children, as the affidavit records what they said. Reporting that the children told police I approached with a firearm would be privileged. Reporting that I was accused of pointing one attributes to the record an accusation it does not contain. As early as the 1965 case O’Neal v. Tribune Co., a Florida appellate court held that a report may not go beyond a mere news report by making charges directly or by inference or assumption of guilt.
Third, does the privilege reach sources outside the record? The shotgun detail came from a parent’s interview, not from the affidavit. A Florida appellate court has held that an interview and a reporter’s narration of it are not public records, so the privilege would not apply to them. Heekin v. CBS Broad., Inc., 789 So. 2d 355, 360 (Fla. 2d DCA 2001), disapproved on other grounds, Anderson v. Gannett Co., 994 So. 2d 1048, 1051 (Fla. 2008). Outside the privilege, repeating another’s accusation is generally regarded as publishing it. The order instead found the interview consistent with the affidavit. If consistency with a record extends the privilege to non-record sources, fair reporting begins to resemble a truth defense by another name.
I will take this matter to the Eleventh Circuit and welcome any comments from you or your readers.
Deanna Kendall Shullman and Minch Minchin (Shullman Fugate PLLC) represent the defendants.
