ORLANDO, Fla. — State lawmakers are moving forward with a Gov. Ron DeSantis-inspired push to make it easier for prominent people to sue media outlets for defamation, setting the stage for a potential First Amendment clash in the courts.
The Legislature is set to take up the measure that challenges longstanding protections for the press established by the U.S Supreme Court.
Rep. Alex Andrade, R-Pensacola, filed an initial version of the bill on Monday, which was withdrawn and replaced with a new one with added provisions (HB 991) on Tuesday. His office did not respond to a request for comment Tuesday.
The legislation proposes sweeping changes to Florida’s libel and defamation law. It presumes information from anonymous sources to be false and removes protections that allow journalists to shield the identity of sources if they are sued. It limits the definition of who would qualify as a public figure.
Earlier this month, DeSantis called for the Legislature to act on what he calls “legacy media defamation practices.”
The governor has clashed with the media during his tenure, accusing outlets of unfair coverage of his policies, which his critics have derided as divisive. He claimed the changes in the law were not meant for him, however.
“We’ve seen over the last generation legacy media outlets increasingly divorce themselves from the truth and instead try to elevate preferred narratives and partisan activism over reporting the facts,” DeSantis said. “When the media attacks me, I have a platform to fight back. When they attack everyday citizens, these individuals don’t have the adequate recourses to fight back. In Florida, we want to stand up for the little guy against these massive media conglomerates.”
His office briefly considered a similar draft bill on the subject last year that was never filed, according to public records first reported on by the Orlando Sentinel.
Among the stated objectives in a briefing document obtained by the Sentinel was to invite legal challenges “with the goal of restoring the original understanding of the First Amendment.” The briefing paper notes two justices have called for the court to reconsider its position.
Kevin Goldberg, a First Amendment specialist with the Freedom Forum, called the bill an “assault on constitutionally protected free speech identified in a number of Supreme Court cases.”
“There’s a lot of ways in which this law is not only designed to punish reporters specifically but protect those in power and frankly stifle free speech,” said Goldberg, an attorney who works for a nonprofit free-speech advocacy group.
The Florida First Amendment Foundation also has serious concerns about the legislation.
“It is bad for public discourse,” said Bobby Block, the foundation’s executive director. “It is labeled as one thing, but in reality, it threatens to squash vigorous public debate as well as completely transform the media environment.”
Block said he disagrees the legislation will benefit the “little guy” because defamation suits typically are brought by the rich and powerful to silence speech they don’t like.
“Libel and defamation have never been the go-to place for the little guy,” he said. “Most little guys don’t have the ability to sue. Most little guys don’t have the ability to defend themselves when somebody sues them.”
The legislation deals with legal standards first outlined in the landmark 1964 New York Times v. Sullivan Supreme Court case, which created the “actual malice” threshold for libel lawsuits.
That case created a higher burden for public officials to win a libel lawsuit than ordinary people. Public officials must prove a statement was published with “actual knowledge that the statement is false or reckless disregard for the truth,” rather than just negligence. The court later extended that standard to public figures, which include celebrities and others who have achieved “pervasive fame or notoriety.”
The proposal limits the definition of a public figure to exclude people whose notoriety arises solely from defending themselves publicly against accusations; granting an interview on a specific topic; public employment other than elected office or appointment by an elected official; or a video, image or statement uploaded on the internet that reaches a broad audience.
It also expands the definition of actual malice, such as specifying that a statement violates the standard if it “fabricated by the defendant, is the product of his or her imagination, or is based wholly on an unverified anonymous report.”
In another section of the bill, claiming that a person discriminated against someone based on their race, sex, sexual orientation or gender identity would be considered defamatory on its face.
In the Sullivan ruling, the Supreme Court reasoned that “debate on public issues should be uninhibited, robust, and wide-open,” even if it includes occasional mistakes and erroneous statements.
Florida’s proposal could prompt a battle in the Legislature and, if passed, a constitutional challenge. Two U.S. Supreme Court justices — Clarence Thomas and Neil M. Gorsuch ― have called for reconsidering the Sullivan case.
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