A view of the front portico of the United States Supreme Court building in Washington, D.C. Credit: Getty Images
The sponsor of legislation pending in the Florida House to make it easier to win defamation suits against journalists is insisting that he’s not trying to give the U.S. Supreme Court an opening to reconsider its landmark 1964 precedent making it difficult for public figures to prove libel.
“I don’t intend — I’m not trying to set up any type of actual court challenge,” Republican Alex Andrade in the far west Panhandle said in committee Tuesday after Democrat Ashley Gantt of Miami-Dade County asked him directly whether he hoped his bill would land before the justices in Washington, D.C. Andrade is an attorney and represents counties in the far west Panhandle.
Rather, he said, he is trying to create a Florida-specific standard for weighing defamation claims.
“I believe that this state has every right as a state within our jurisdiction to set up our standards to provide clarity to courts when we’re engaging in private causes of action in court. Our standards for negligence, recklessness, false imprisonment, any other tort, are different than Alabama’s or Colorado’s or California’s,” he said.
The exchange came during a hearing before the House Subcommittee on Civil Justice, which eventually voted, 14-4, to advance the bill (HB 991) through the committee process. Kimberly Daniels, a Democrat from Duval County, was the only Democrat to vote for it. Similar legislation is pending in the Senate.
But Andrade’s disavowal contradicted language in an earlier version of his bill (HB 951), which openly urged: “The United States Supreme Court should therefore reassess its post-1964 understanding of defamation law and, consistent with our nation’s system of federalism, 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.”
Gov. Ron DeSantis, long a foe of the “corporate” or “legacy” media, attacked that standard during a panel discussion in early February. And the Orlando Sentinel has reported that the governor’s aides drafted legislation last year to undermine Sullivan, although the Legislature never took it up at that time.
But more is at stake here than journalists and news organizations, according to Abdelilah Skhir of the ACLU of Florida. “Private citizens who speak out on social media, for example, can be caught up in costly defamation lawsuits,” he testified before the committee.
And conservatives given to grousing about the liberal media would be just as liable to defamation claims.
Both bills seek to undo the standard the Supreme Court set for what constitutes libel in its New York Times v. Sullivan ruling: that plaintiffs have to show a publication acted with “actual malice” in printing defamatory material about government, political, and public figures, defined as knowledge that the information was false or that the publisher acted “with reckless disregard of whether it was false or not.”
The House bill would narrow the definition of “public figure” to exclude people defending themselves publicly against accusations or granting an interview on a specific topic; and public employees except for elected officials or people appointed by elected officials. Also excluded are any videos, images, or statements uploaded on the Internet that has reached a broad audience, including when deceptively edited.
By specifying that these people are not public figures, the bill spares them from having to demonstrate actual malice, meaning they could win their case by establishing straight negligence, even if the material is of public importance.
To qualify as evidence of actual malice and therefore defamation, the material has to be fabricated by the defendant, is based on an “unverified anonymous report;” is “so inherently implausible that only a reckless person would have put it into circulation;” or there are “obvious reasons to doubt” its veracity.
“A statement by an anonymous source is presumptively false for purposes of a defamation action,” the bill specifies. Andrade claimed the bill would not outright force journalists to reveal their sources but, if they don’t, they could wind up having to pay damages.
No ‘actual malice’
Additionally, “a public figure does not need to show actual malice to prevail in a defamation cause of action when the allegation does not relate to the reason for his or her public status,” it says.
One could sue in any county where the allegedly defamatory material was received via print or broadcast media or any area of the state where it was accessed through the Internet. If a defendant moves to have the case thrown out as a “SLAPP” suit — that is, “strategic litigation against public participation,” meaning intended to vex people exercising their First Amendment rights — the target of the underlying suit would lose his or her existing right to recover litigation costs for that part of the case.
It would be defamation per se to allege that someone has discriminated against someone based on their race, sex, sexual orientation, or gender identity. Furthermore, “a defendant cannot prove the truth of an allegation of discrimination with respect to sexual orientation or gender identity by citing a plaintiff’s constitutionally protected religious expression or beliefs.” Also, “a defendant cannot prove the truth of an allegation of discrimination with respect to sexual orientation or gender identity by citing a plaintiff’s scientific beliefs.”
Andrade argued people could still bring claims under these circumstances if they have hard evidence of bias, such as a sign denying service to gays.
Damages would be set at a minimum of $35,000.
The bill resurrects the tort of “false light,” meaning publishing material about someone that people would reasonably recognize as “highly offensive” when the publisher knows or acts in reckless disregard to the false implications. The Florida Supreme Court ditched that tort in 2008 because it was so similar to straight defamation.
Other than the ACLU, an array of interest groups lined up to attack the proposal, including Florida Now, American Atheists, Equality Florida, the Florida First Amendment Foundation, the Florida Press Association, and the Foundation for Individual Rights and Expression (FIRE), a nonpartisan organization that litigates campus free-speech cases. Even the conservative Americans for Prosperity voiced opposition.
The ACLU’s Skhir, for example, noted that the Sullivan case arose when segregationists in Alabama used minor errors in an ad run in the Times “to try to bankrupt northern newspapers who were reporting favorably on the Civil Rights Movement.” The court voted 9-0 “to protect our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open,” Skhir said.
“This Legislature should not empower abuse of official process to deny others their right to speak on matters of public importance. This brazen and blatant attack on the First Amendment is intentionally designed to chill, silence, and punish those who criticize public officials and their powerful allies,” he said.
FIRE’s Joe Cohn among other speakers warned that the bill would encourage civil litigation, contrary to the big push this legislative session to rein in tort claims. As for the treatment of anonymous sources, “there have been a lot of anonymous sources that have shed light on, you know, all sorts of things that we want to know about,” he added.
Legislators are “a chatty bunch” whose gossip could land them in trouble themselves, Cohn noted. “This falls squarely in the be careful what you wish for category,” he said.
Republican Toby Oberdorf said he, himself, had been the victim of defamation in 2018 when a reporter who’d worked for ABC tried to embarrass him with allegations that a development he had consulted on had killed threatened gopher tortoises. A subsequent report by NPR and Floodlight later disclosed that the reporter was working at the time for Matrix LLC, under contract for Florida Crystals and Florida Power & Light.
“This bill gives an opportunity that I did not have four or five years ago to be able to bring that forward,” Oberdorf said.
As for Sullivan, Mike Beltran, a Republican representing parts of Hillsborough and Manatee counties, said he hopes it goes away. An attorney, he argued there was “no textual” basis in the U.S. Constitution for the ruling.
“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,” Beltran said.
And he was OK with the bill being wielded against conservatives.
“Stupid and false commentary is not something that the left has a monopoly on. If folks from my side of the aisle or with a similar persuasion to me says something false and defamatory about somebody, then they should have the same rights,” Beltran said.
Correction: This story has been updated to clarify that the Foundation for Individual Rights and Expression (FIRE) is a nonpartisan organization.
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