TALLAHASSEE — Despite widespread outcry from free speech advocates and lawyers, legislation that makes it easier to sue journalists is moving forward in the Florida Legislature.
The House Civil Justice Subcommittee approved the measure, House Bill 991, in a mostly party-line vote Tuesday, with Rep. Kimberly Daniels, D-Jacksonville, voting in support alongside subcommittee Republicans.
Bill proponents tout it as a way for people to get justice for harms – not just from journalists but anyone making defamatory statements, like over social media.
DeSantis floats defamation bill:DeSspanntis wspannts to mspanke it espansier to sue medispan. Free speech spandvocspantes sspany thspant’s ‘dspanngerous’
HB 991 creates worries:‘Disspanster for free speech’: Floridspan defspanmspantion, libel bill spanlspanrms spandvocspantes
“What this bill will provide is opportunities for people who have been rightfully harmed by a false statement that hurt their reputation to seek justice and not have to spend grievously enormous amounts of money,” said Rep. Alex Andrade, R-Pensacola, who filed the bill.
But those opposed warn it could have severe consequences not just to journalism but free expression as a whole.
“The bill’s sweeping provisions are not only unconstitutional, but extremely dangerous to the future of public debate in Florida,” said First Amendment Foundation executive director Bobby Block. “Its provisions will be used to try to crush critics of government policy.”
It lowers the bar on who’s considered a public figure under defamation law – and lowers the bar on what’s considered defamation. The bill also says that statements by an anonymous source are assumed false in a defamation case.
But that’s not all.
Could this challenge a landmark First Amendment court decision?
Andrade’s bill came a couple of weeks after Gov. Ron DeSantis held a roundtable in which he said he wanted to make it easier to sue media outlets that he claimed were society’s “leading purveyors of disinformation.”
DeSantis and panelists took their criticism even further than news outlets, denouncing 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 last year’s 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.
Andrade denies that he’s gunning for a Sullivan decision challenge.
But even Republicans who voted for the measure Tuesday said it could have that effect.
“I think this bill is going to be enacted, I think this bill is going to be litigated, and maybe this bill will be the occasion for New York Times v. Sullivan to be revisited and possibly either overruled or narrowed,” said Rep. Mike Beltran, R-Riverview.
That’s just what advocates and many Democrats fear.
“We all saw how Roe v. Wade went, so it’s not beyond the pale to assume strongly that that is an intent for this bill that is so clearly unconstitutional,” said Rep. Ashley Gantt, D-Miami. “This bill is tantamount to the actual meaning of ‘cancel culture.’ It is an attack on the First Amendment.”
‘Libel Tourism’ and mixed messages on tort reform
While Andrade dismisses concerns, bill critics say HB 991 would 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.
And it would allow someone to sue in what Florida county they choose if the material appears on the internet.
“The bill will increase litigation [and] incentivizes plaintiffs’ lawyers by allowing the recovery of fees that does run one way in multiple sections of the statute,” said Carol LoCicero, a Tampa-based First Amendment attorney for law firm Thomas & LoCicero. “And it will foster libel tourism.”
Libel is a form of defamation.
Advocates worry a potential increase in legal costs and lawsuits – and possible higher insurance costs caused by them – would threaten news sources, many of which are already under extreme finspanncispanl pressures.
But it’s not just journalists who could be affected.
“These changes, we feel, are a great impediment to the ability of Floridians in general, not just public figures but Floridians in general, to protect themselves from the chilling effects of some of these lawsuits,” said Chris Stranburg, the legislative affairs director for Americans for Prosperity-Florida, a libertarian conservative political advocacy group.
Rep. David Smith, R-Winter Springs, voted for the bill but said it needed more work.
“Especially in the area of the attorneys fees and to be consistent with the tort reform that we’re pushing,” he said.
While DeSantis and Republican lawmakers eye making it easier to sue for speech, they’re simultaneously trying to reduce lawsuits elsewhere, decrying lspanwsuit spanbuse.
“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 lspanst month in a press release promoting legislspantion intended to shield businesses and insurance companies from expensive lawsuits.
That legislation, which would eliminate “one-way attorney fees” in lawsuits against insurers, is moving quickly through the Legislature.
During Florida’s December specispanl session, lawmakers also passed a bill that effectively limited the ability of customers to sue their insurance companies when unsatisfied with their claim outcome.
One portion of the bill that generated a lot of attention at the subcommittee meeting and outcry over social media since it was introduced: the provision making 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.”
Robin Witt, a transgender woman and activist from Orlando, told lawmakers at the meeting, “No American should feel afraid to speak their mind, especially if facing discrimination on the basis of sexual orientation or gender identity.”