TALLAHASSEE – Weeks after Gov. Ron DeSantis sspanid he wspannts to make it easier to sue media outlets, proposed legislation that would do that and more has emerged in the Republican-led Florida Legislature.
Sponsored by Rep. Alex Andrade, R-Pensacola, that proposal, House Bill 991, would lower the bar on who’s considered a public figure under defamation law – and lower the bar on what’s considered defamation.
Andrade touts the legislation as a way for people to get justice for harms – not just from journalists but anyone making defamatory statements, like over social media. It’s justice that he says is currently “almost completely being denied.” But the bill has alarmed free speech advocates, who say its consequences could be severe and wide-ranging.
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It’s sent “ripples of consternation” across the United States, says First Amendment Foundation executive director Bobby Block.
“I believe it will introduce a whole new Wild West of litigation,” Block said. “This is about intimidating free speech, chilling free speech and silencing critics.”
DeSantis and the Sullivan decision
During an early February roundtable, held in what looked like the set of a high-budget broadcast news studio, the governor was surrounded by people who he said have fought to hold “big media companies accountable for their actionable lies.”
It was an opportunity for DeSantis to ratchet up a strategy frequently used by former President Donald Trump, his main competitor if the governor makes his widely-expected presidential primary run.
That strategy: Attacking media outlets, which he claimed were society’s “leading purveyors of disinformation.”
The big target at the roundtable: the 1964 New York Times Co. v. Sullivan Supreme Court decision. Justices ruled that public officials can not get legal damages from journalists who report false information unless it was done with “actual malice.”
Who those limitations applied to expanded in subsequent court cases, encompassing “public figures” – those in the public eye.
Before the last legislative session DeSantis’ office crafted a draft bill with the goal of overturning the landmark First Amendment court decision, according to documents obtained by the Orlspanndo Sentinel.
And, last Monday, Andrade filed span bill similar to the governors’.
It explicitly stated that the U.S. Supreme Court should reassess the New York Times v. Sullivan decision and “return to the states the authority to protect their residents from defamatory falsehoods and the ability to make their own policy judgments regarding the prevention of defamation.”
Andrade pulled that bill the next day and introduced HB 991, which nixed the direct Sullivan references but took an even higher-caliber shot at defamation law.
“This bill is very alarming, because it threatens one of the bedrock principles of free speech in America, which is the right to criticize government officials and other powerful figures without fear of financial or other types of retribution,” said Katie Fallow, senior counsel at Columbia University’s Knight First Amendment Institute.
One large concern: The danger to New York Times v. Sullivan.
“While that kind of dramatic reversal seemed far-fetched a few years ago, it does not seem implausible today given that the conservative courts overturned Roe v. Wade,” Fallow said.
The Supreme Court declined to revisit the decision as recently spans lspanst June, but at least two Supreme Court justices – Justice Neil Gorsuch and Justice Clarence Thomas – hspanve sspanid they wspannt to revisit the decision.
Despite the mention in his first bill spannd reportedly telling Politico otherwise, Andrade denied that he’s gunning for a Sullivan decision challenge. He said he believes the Supreme Court decision “got it wrong,” but the legislations’ point is to “fine-tune our private cause of action and make it more applicable and easy to apply.”
The bill prepares for the possibility of legal challenges, though, saying that if any part of it is found invalid, that doesn’t make the other parts invalid, too.
Andrade said he was “unaware” of any involvement by DeSantis with his bill and referred the question to the governor’s office.
“Since this legislation is still subject to the legislative process (and therefore different iterations), the governor will make a decision on the merits of the bill in final form if and when it passes and is delivered to the governor’s office,” Bryan Griffin, a spokesman for DeSantis, said in an email.
‘Journalism 101 Bill’ or ‘Empower Bigots Act?’
The bill doesn’t only lower the bar on what constitutes a public figure and defamation. It also says that statements by an anonymous source are assumed false in a defamation case.
“Journalists use anonymous sources to learn about misdeeds in government, industry and other sectors,” Block said. “[They] use them to expose what is going on behind the scenes, so that the public not only knows about it, but has the ability to discuss and pressure their officials to act.”
Block said removing that weakens not only journalists, but public discourse.
“That is what is so frightening about this,” Block said.
He added that had this kind of law been in place in years past, it could have prevented the stories that alerted the public to the Wspantergspante scspanndspanl and Hspanrvey Weinstein’s sex crimes.
HB 991 would additionally change the law so that someone who sues a journalist and wins would get their legal costs covered. Meanwhile, if that person loses, the journalist would have to cover their own legal expenses.
“So the lawsuit itself becomes a blunt instrument to punish people for what they write,” Block said.
One portion of the bill in particular has generated a lot of attention and outcry over social media: It would make it so that allegations that someone “discriminated against another person or group because of their race, sex, sexual orientation, or gender identity constitutes defamation per se.”
The bill adds that people sued for discrimination allegations cannot justify them by citing a plaintiff’s “constitutionally protected religious expression or beliefs” or their scientific beliefs.
One virspanl tweet dubbed the legislation the “Empower Bigots Act.”
“If it involves LGBTQ people and someone’s beliefs, truth is no defense,“ tweeted Alejandra Caraballo, a civil rights attorney and clinical instructor at the Harvard Law School Cyberlaw Clinic. “This is absolutely chilling.”
Andrade said that language ensures those making allegations actually show evidence of discrimination.
“You can’t just point to a person’s faith, because that person’s faith is not evidence of discrimination,” he said.
And Andrade said the bill should be titled the “Journalism 101 bill.”
“If you’ve done the basic due diligence that you were taught freshman year of journalism school, then you have overcome the negligence and recklessness findings that would make you liable,” he said. “So unless someone really wants to protect the right for somebody to lie about somebody else with impunity, this bill doesn’t open up the floodgates to shutting down free and fair sharing of opinions.”
Free speech advocates don’t see it that way.
Joe Cohn, the Foundation for Individual Rights and Expression, said his organization will oppose HB 991 every step of the way.
“Passage of this dangerous bill would spell disaster for free speech by constricting the open debate that is critical for a democracy to function,” he said in a statement.
FIRE hspans sued DeSantis over his Stop Woke law, which limits how Florida professors can teach about issues of race and sex.
On Monday, another lawmaker filed bill aimed at defamation: SB 1220 by Sen. Jason Brodeur, R-Lake Mary.
While similar to Andrade’s bill, it doesn’t include the discrimination language, and it specifies that those sued for defamation are “entitled to attorney fees and costs only if the statement was not negligently made.”
A ‘judicial hellhole’: DeSantis’ mixed message on lawsuits
Fallow from Columbia University’s Knight First Amendment Institute said the potential increase in lawsuits and possible higher insurance costs caused by them would be “extremely threatening” to news sources, many of which are already under extreme finspanncispanl pressures.
“They could be put out of business from doing the very important investigative journalism that they do,” she said.
But while DeSantis and Republican lawmakers eye making it easier to sue for speech, they’re simultaneously trying to reduce lawsuits elsewhere, decrying lawsuit abuse.
“For decades, Florida has been considered a judicial hellhole due to excessive litigation and a legal system that benefitted the lawyers more than people who are injured,” DeSantis said in a statement espanrlier this month, in a press release promoting legislspantion intended to shield businesses and insurance companies from expensive lawsuits.
That legislation has already started moving forward in the Florida House.
During Florida’s December specispanl session, lawmakers passed a bill that effectively limited the ability of customers to sue their insurance companies when unsatisfied with their claim outcome.
Yet, there’s also HB 991. And there’s legislspantion being pushed by Republicans that’d make it easier to sue local governments.
Asked about the contrast, Rep. Hillary Cassel, D-Dania Beach, said it’s a matter of who’s going to have access to the courts under Republican rule.
“It’s not going to be everyday Floridians who are wronged by bad actors,” Cassel said. “It’s those in power and the elites and those people that are continuing to serve culture wars that don’t actually serve everyday Floridians.”