Could Lisa Bennett win a libel lawsuit?

Winter Garden Commissioner Lisa Bennett said Thursday that if she “had disposable income, she would sue” fellow commissioner Ron Mueller for what she said was the “made-up lie” that her endorsement of his opponent Iliana R. Jones would benefit her financially.

Sure, Bennett could sue. But could she win?

Unlikely, according to the legal experts VoxPopuli consulted.

That’s because both Bennett and Mueller are public figures. Clifford Shepard, founding partner of Shepard, Smith, Kohlmyer & Hand in Maitland, said it is “near impossible” for a public figure to win a slander or libel suit because of the “actual malice standard” established by the 1964 case New York Times v. Sullivan.

Born of the civil rights movement, that case held that First Amendment protections of freedom of speech and freedom of the press extend even to libelous statements about public figures in order to foster discussion about government and public affairs.

Indeed, Lyrissa Lidsky, a constitutional law professor at the University of Florida’s Levin College of Law, characterized Mueller’s statement, not so much as defamation, but as “the kind of statement that takes place in a heated political campaign.”

Still, even if the statement were found to false on its face, under the actual malice standard, legal experts said, Bennett would still need to prove that Mueller knew his statements were false when he made them and then showed “reckless disregard” for the facts.

“It’s a high burden to prove,” said Heather Murray, managing attorney of the Local Journalism Project at the Cornell Law School First Amendment Clinic in Ithaca, New York. “You have to harbor serious doubts about the truth of a statement, and you go ahead and say it anyway. That’s what would have to be demonstrated here.”

Both Shepard and Murray pointed to the recent Dominion Voting Systems $787.5 million settlement against Fox News and Fox Corp. as the rare example where there was such proof. The network’s on-air talent promoted lies about election fraud on TV while internal texts showed they didn’t believe the election was stolen or the conspiracies their on-air guests were peddling.

The final threshold is damages — without which, Lidsky said many attorneys won't even take a case. Was Bennett harmed by Mueller’s statements? What losses did she incur as a result?

“If the answer is none, then you have an issue,” Shepard said. “None is not a good answer.”

A defamation lawsuit can still be won without damages. But the rewards aren't great. If nothing has been lost, a judge will enter a decree that says the statement was false and award $1 in nominal damages to “have your name set straight,” Shepard said.

“You can prove you’ve been defamed, but there’s been no actual harm,” said Murray.