ORLANDO — A top staffer for Gov. Ron DeSantis worked on a proposal that sought to challenge decades-old First Amendment protections for the news media and make it easier for high-profile people to win defamation lawsuits, according to documents obtained by the Orlando Sentinel.
The idea didn’t make the 2022 legislative session’s agenda. A bill was never filed, according to Florida’s First Amendment Foundation.
But public records show Stephanie Kopelousos, DeSantis’ legislative affairs director, shared a draft proposal and briefing document just before lawmakers kicked off their annual session on Jan. 11. Those documents targeted New York Times Co. v. Sullivan, a 1964 landmark Supreme Court decision that made it extremely difficult for public officials to win a libel case.
A briefing document declared that the goal was to end federal standards established in the Times ruling and make defamation purely a matter of state law.
The draft bill would have changed the criteria for determining whether a falsehood was published with “actual malice,” limited the definition of “public figure” and presumed statements from anonymous sources to be false in defamation cases.
“To the extent these provisions conflict with existing Supreme Court precedent, this legislation aims to invite challenges to such precedent with the goal of restoring the original understanding of the First Amendment,” states the document Kopelousos attached to an email sent Jan. 5 to a staffer in the office of state Senate President Wilton Simpson.
The governor’s office did not respond to a list of questions Tuesday about the proposal, including whether DeSantis was directly involved with the draft bill and if the idea is being considered for future action.
Simpson’s office did not respond to a request for comment.
Clay Calvert, a law and journalism professor at the University of Florida, said the proposal taps into a broader conservative campaign against mainstream news organizations.
“Many Republicans, including former President Donald Trump, are upset about the current state of libel law,” said Clay Calvert, a law and journalism professor at the University of Florida who reviewed the draft bill. “They believe it is too friendly to media defendants.”
Trump blasted the country’s libel laws when he was president, calling them a “sham and a disgrace” and vowing to take a “strong look” at them. DeSantis hasn’t been vocal in calling for changes, but he routinely criticizes the “corporate media” during news conferences, vowing in one briefing to punch back against what he called “smear merchants.”
That New York Times v. Sullivan case created what is known as the “actual malice” standard. To win a defamation lawsuit, a public official must prove a false statement was published “with knowledge that it was false or with reckless disregard of whether it was false or not.”
That’s a higher standard than an ordinary person who isn’t in the public spotlight must prove when suing for libel.
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The high court later extended that standard to public figures, which include celebrities and others who have achieved “pervasive fame or notoriety.”
Kopelousos exchanged emails with a legislative assistant for state Sen. Jennifer Bradley, a Fleming Island Republican, about a proposal challenging those standards.
“Can you replace with this version of the bill with the attached language ... our attorneys worked on additional language ... thank you,” Kopelousos wrote in one email sent Jan. 2.
The draft bill proposes considering “a failure to validate or corroborate the alleged defamatory statement” as evidence of actual malice in defamation cases, a lower standard than “reckless disregard” for the truth.
It revises 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 election or appointment by an elected official; or a video, image or statement uploaded on the internet that has reached a broad audience.
The briefing document calls the Times ruling “a dramatic departure from the original understanding of the Free Speech Clause of the First Amendment to the U.S. Constitution.”
“These changes to defamation law have resulted in a no-holds-barred media environment where defamatory statements are ubiquitous but accountability for those statements is not,” reads the summary, which does not list an author.
Pamela Marsh, executive director of Florida’s First Amendment Foundation, said she only recently became aware of the proposal.
“In my opinion, this proposal would have established a standard of ‘negligence’ in libel cases that would be in stark contrast with the U.S. Supreme Court’s 1964 ruling in New York Times v. Sullivan,” she wrote in an email. “That case has been the ‘law of the land’ for decades.”
Legislating that new standard would set up a constitutional challenge to the Times decision, Marsh wrote. Two U.S. Supreme Court justices — Clarence Thomas and Neil M. Gorsuch ― have called for reconsidering it.
The case arose from an advertisement raising funds for the civil rights movement that appeared in The New York Times. The ad included some factual errors, and an Alabama city commissioner sued under the state’s libel law.
In an unanimous decision, justices reasoned that “debate on public issues should be uninhibited, robust, and wide-open,” even if it includes occasional mistakes and erroneous statements.