I thought I'd blog this week about the Florida libel law reform bills, the House version (which was favorably reported out of the Civil Justice Subcommittee to the Judiciary Committee) and the Senate version (which passed by an 8-3 vote in the Judiciary Committee and is now in the Rules Committee). There are many different parts to them, so I thought I'd take them one at a time. I also thought I'd start with the most ambitious changes.
Under current First Amendment law, articulated in New York Times v. Sullivan (1964) and follow-up cases, public officials or public figures suing over libels on matters of public concern must show "actual malice." But "actual malice" isn't actually malice; rather, it's a legal term of art that, in this context, means publishing with the knowledge that the statement was false or likely false. (Publishing with knowledge that the statement is likely false is often labeled "reckless disregard" in this context.) This is a subjective test, focused on what the speaker actually believed, rather than on what a reasonable person would have believed.
The New York Times standard has recently been quite controversial. Justice White (generally viewed as one of the Court's centrists) long led the charge against it; though he joined the New York Times decision at the outset, he "came to have increasing doubts about the soundness of the Court's approach and about some of the assumptions underlying it." He didn't persuade a majority back in his day, but in recent years Justices Thomas and Gorsuch have echoed Justice White's arguments. And while the issue has mostly broken down along conservative-liberal lines, that isn't entirely so (as Justice White's example also helps show): Early in her career then-Professor Kagan had expressed skepticism about the New York Times rule as well, at least in some measure; likewise, see, e.g., Prof. David McGowan's A Bipartisan Case Against New York Times v. Sullivan.
