Gov. Ron DeSantis raised the possibility Tuesday of passing legislation that could lower the bar for prominent people to successfully sue news outlets for defamation.
In a roundtable discussion that featured complaints about the unfair “narrative” of the news media, DeSantis sat behind a desk similar to one of a news anchor with the backdrop of the word “Truth” on a screen. DeSantis spoke with six panelists including attorneys who litigate libel cases, libertarian journalist Michael Moynihan and Nicholas Sandmann, a conservative activist who has spoken extensively about his mistreatment by mainstream media outlets.
While the governor and the panelists weighed various policy options, the event concluded without DeSantis announcing any specific bill or action to be taken, only telling viewers to “stay tuned.”
Since he first ran for governor in 2018, DeSantis has kept traditional news outlets at a distance, preferring instead to grant interviews to conservative broadcasters while framing the general media as a political opponent. His reelection team included clips in campaign ads of him sparring with reporters at news conferences. More recently, DeSantis’ lawyers have argued in court that he possesses executive privilege, similar to a U.S. president, that allows him to shield records of his choosing from the public.
On Tuesday, DeSantis mentioned a 2021 60 Minutes story that focused on Publix’s campaign donations to the governor ahead of the grocery chain getting the right to distribute COVID-19 vaccines in Palm Beach County. DeSantis has previously railed against that report, saying clips were selectively edited and the story was inaccurate. At the time, he held an official event at the Capitol to refute it.
DeSantis said Tuesday that any potential legislation would not be for his benefit. Instead, he and other panelists implied that private citizens are often the victims of inaccurate reporting.
“They come after me — and they do do a lot of slander — but I fight back. I have a platform to fight back … I got thick skin,” he said during Tuesday’s Hialeah Gardens event. “But you have some of these other folks who are just run-of-the-mill citizens, their only possible way of recourse would be to be able to bring an action (in court).”
Although the governor did not offer legislative details, it’s not the first time his office has considered a challenge to the current legal understanding of the First Amendment. Before the 2022 legislative session, his office shared a draft of a bill with a lawmaker that would have, among other things, required the courts to presume statements by anonymous sources are false in a defamation claim.
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That draft bill, whose existence was first reported by the Orlando Sentinel, was never filed.
DeSantis seemed to hint Tuesday that he would push for further restrictions on the publication of stories supported by anonymous sources.
“Has it been adjudicated that if you’re dealing with anonymous sources, has anyone tried to say that that should be an inference of actual malice? Would that work?” DeSantis asked panelist and attorney Libby Locke.
The “actual malice” standard originated in the 1964 Supreme Court case New York Times Co. v. Sullivan. That case made it especially difficult for prominent plaintiffs to successfully sue news outlets for defamation.
In that case, a Montgomery, Alabama, public safety commissioner named L.B. Sullivan sued the Times for publishing an ad asking for contributions to Martin Luther King Jr.’s legal defense. The ad contained factual errors.
The court held that prominent people seeking to sue news organizations had to prove that the outlet knew that the published statements were false before publishing them, or that the outlet acted with reckless disregard for the truth. Simply publishing false information was not enough to show actual malice, the court held.
At one point, DeSantis asked the panel whether current Supreme Court justices would be “receptive” to an argument against that precedent. Two justices, Neil Gorsuch and Clarence Thomas, have said they would support revisiting that case. In 2021, Thomas, whom DeSantis once called the “greatest living justice,” said that the Supreme Court had erred when it created the “actual malice” standard.
“This court’s pronouncement that the First Amendment requires public figures to establish actual malice bears ‘no relation to the text, history or structure of the Constitution,’” Thomas wrote.
Of the various libel suits mentioned by the panelists, Sandmann’s were arguably the most high-profile. In 2019, he attended an anti-abortion rally, at which he was videotaped standing near a group of Native American protesters. Some news coverage initially portrayed him as the aggressor, a claim that was later refuted.
Sandmann has settled defamation claims with NBC, the Washington Post and CNN.
Both local and national government transparency advocates sharply criticized DeSantis’ desire to overturn the Supreme Court precedent. Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, noted that judges appointed by politicians of both parties have applied the “actual malice” standard for nearly 60 years, calling DeSantis’ wish to erode press protections “another front in his war on the First Amendment.”
Barbara Petersen, a longtime transparency advocate and the executive director of the Florida Center for Government Accountability, said it’s not accurate that everyday citizens can’t successfully sue news organizations for libel if false information was published. Already, the legal bar is lower for private citizens than for public officials, she added, raising her suspicions that any potential changes would be for DeSantis’ benefit.
“It’s deeply disturbing,” she said. “If you take this and you take his assertion of executive privilege, what are we turning Florida into, a fiefdom?”