Malherbes file to dismiss hit site defamation lawsuit 

Two of the three defendants in the defamation lawsuit over the tabloid site RealAustinArthur.com last week filed a motion to dismiss in the Ninth Circuit Court. 

That lawsuit claims that Winter Garden political advocates Jacob Malherbe and Roseanna Malherbe colluded with a third defendant, content creator Stephen J. Dibert, to create RealAustinArthur.com and that the site published defamatory statements about Alexander Arthur and his Winter Garden business, Gymnastics USA. 

Arthur is the brother and business partner of Austin Arthur, currently running for Orange County Commission.

The Malherbes insist they are not connected to RealAustinArthur.com, and they argued in their motion that Alexander Arthur has not demonstrated that they are. Further, they argued that even based on the allegation that they did request a site be created, they are still not liable for defamation because other writers published the allegedly defamatory posts.

Arthur brushed off the denial, telling VoxPopuli in a Friday text that he has "plenty of evidence. That’s all I can say as as (sic) this is an active lawsuit.”

The Malherbes also stated in their motion that Arthur’s lawsuit is an attempt to secure a backdoor defamation judgment for his brother, who is not a party in the lawsuit, while silencing their "First Amendment right to support Nicole Wilson’s candidacy for Orange County Commission and their opposition to Austin Arthur’s candidacy for the same elected office.

"Plaintiffs’ litigation is designed to silence that advocacy and nothing more," they wrote.

"This complaint is about me and my business, as [the Malherbes] relentlessly lied about me and my local family business for people to read and share on social media,” Arthur responded via text. “If they want to speculate and believe it’s for my brother, it makes no difference to me and my case. I will continue perusing (sic) this as long as it takes, way after the election is over if needed.”

Maitland attorney Clifford Shepard, founding partner of Shepard, Smith, Hand & Brackins, noted that statements on the website about Austin Arthur would be irrelevant to Alexander Arthur's lawsuit.

"He has to prove damages that relate to him about something that was false or malicious about him and that defamed or libeled or slandered him," he told VoxPopuli by phone. "It doesn't matter what they say about his brother. It only matters what they say about him and what damages he can prove."

Austin Arthur and Wilson, the incumbent, are in a tight runoff for the District 1 County Commission seat. The two statistically tied the Aug. 20 primary with Wilson up by just two votes after a write-in candidate shifted the race from November to August and pulled 15 votes — just enough to prevent either of them from winning outright.  

Alexander Arthur has been deeply involved in his brother’s election campaign, and both he and his business donated a total of $7,000 to the campaign and the campaign PAC Citizens for Common Sense Solutions. 

VoxPopuli has endorsed Nicole Wilson. 

In their motion, the Malherbes referenced four blog posts, published between July and August, from the 30 posts Alexander Arthur listed in his original filing, together with a Facebook post; advertisements; and a car magnet that featured the site URL and Austin Arthur’s mugshot, to show that “for the vast majority of Plaintiffs’ claims, the alleged defamatory statements concern Austin Arthur,” rather than Alexander Arthur.  

The posts include: 

“Gymnastics USA Busted in a COVID Billing Scandal,” July 22, 2024 by Gustavo Fring

“Is Austin Arthur Under Investigation for COVID PPP Loan Fraud?” Aug. 1, 2024, by Norine Webber

“Austin Arthur PPP Loan Fraud Scandal Part 2,” Aug. 6, 2024, by Norine Webber

Austin Arthur Campaign Threw Austin’s Brother Under the Bus, Aug. 7, 2024, by Norine Webber

The Malherbes pointed out in their motion that it’s not their names on the referenced blog posts and that even if they requested that Dibert create RealAustinArthur.com — which they deny — they still would not be liable because they didn't create the site or the content.

Shepard disagrees. "That's not how that works," he said. He told VoxPopuli that the party who sets the wheels in motion can be held liable for defamation.

"I don't know whether they did or didn't do it," Shepard said, referring to whether the Malherbes created the RealAustinArthur.com site or paid to have it created.

"But the whole, Even if we did, it doesn't matter because we didn't write it, we didn't publish it, that's like saying, Here's the gun, here's the bullets, go shoot somebody, and if you hit the wrong target, oh well," Shepherd said. "The Even if... argument is baloney."