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Those accused of discrimination would have new protections under Florida bill

A bill proposed by a Republican lawmaker would change the meaning of “defamation per se.”
 
Bundled newspapers make their way down the conveyor belt at the Tampa Bay Times printing plant during its final press run on Saturday, March 6, 2021 in St. Petersburg. 
Bundled newspapers make their way down the conveyor belt at the Tampa Bay Times printing plant during its final press run on Saturday, March 6, 2021 in St. Petersburg.  [ LUIS SANTANA | Times ]
Published Feb. 22, 2023|Updated Feb. 23, 2023

Last year, the governor’s office floated a proposal to lawmakers that would have made it easier in Florida to sue news organizations for defamation.

On Monday, Rep. Alex Andrade, R-Pensacola, filed a bill nearly identical to that proposal.

On Tuesday, he escalated his push. Andrade withdrew the initial bill he filed and submitted a different measure, HB 991. The latest bill goes further in its disruption of Florida media law.

The bill would limit who is considered a public figure for the purposes of defamation suits and could make it more difficult for media outlets to use anonymous sources.

The bill could also have a chilling effect on news outlets reporting about people accused of discriminating against others on the basis of race, sexuality or gender identity, legal experts say.

Russell Cormican, a First Amendment lawyer based out of Fort Lauderdale, said a person suing for defamation currently has to prove two things. First, that a publisher disseminated false information. Second, that the false information harmed the plaintiff’s reputation.

But the bill says that publishing untrue allegations “that the plaintiff has discriminated against another person or group because of their race, sex, sexual orientation, or gender identity constitutes defamation per se.”

When something is considered “defamation per se,” it means the plaintiff no longer has to prove that the claim harmed their reputation. Defamation per se is automatically assumed to have done so, Cormican said.

And in cases involving a person reported to have committed sexuality-based or gender identity-based discrimination, the bill limits the defenses available to the publisher being sued. An outlet accused of defamation cannot prove its reporting was factually sound by citing the person’s religious or scientific beliefs, the bill says.

“This is a very plaintiff-friendly bill,” said Clay Calvert, a professor emeritus of law at the University of Florida Levin College of Law.

Andrade noted that publishing true statements is an “absolute defense” against a defamation claim. And he said the bill does not just apply to mainstream news — it applies to other forms of publishing as well, including social media.

“Journalists are seeing this as something that only applies to them, but this applies across the board,” Andrade said in an interview Wednesday.

Some provisions in the bill seem directly aimed at the core of American libel law: The 1964 Supreme Court case New York Times Co. v. Sullivan.

In that case, justices found that in order to win damages from a defamation case, public figures — i.e., famous people, elected officials, etc. — have to prove publishers acted with “actual malice.” This means they disseminated information knowing it was false, or with “reckless disregard” for the truth. Proving the outlet published false information is not enough.

The actual malice standard does not apply to private figures bringing defamation cases unless they’re seeking punitive damages, according to the Free Speech Center at Middle Tennessee State University.

HB 991 would limit who can be considered a public figure under the law for purposes of defamation. It would also exempt public figures from the actual malice standard “when the allegation does not relate to the reason for his or her public status.”

For the purposes of this bill, Tiger Woods would count as a public figure in a defamation case about golfing, but he wouldn’t in a defamation case about something else, Calvert said.

Calvert noted that revising American libel laws has long been a priority of many conservatives. When he was running for president in 2016, Donald Trump pledged to “open up our libel laws.”

The measure also expands the definition of actual malice to include cases where “an allegation is so inherently implausible that only a reckless person would have put it into circulation.”

The bill seems to anticipate legal challenges. One section holds that even if parts of the law are struck down by the courts, the provisions not subject to legal challenges may stand. (Andrade said he did not want to opine about what litigation the bill may be subjected to.)

The measure could also make it less costly for those hoping to bring suits against media outlets. A provision would ensure plaintiffs are awarded attorney’s fees if they win. That means no matter how little money a jury awards a plaintiff, the person bringing the suit can recoup their costs.

And the bill could make it more difficult for news outlets to use anonymous sources in their reporting. It holds that a statement provided by an anonymous source should be presumed false for the purposes of a defamation case. (That provision was also in Andrade’s original bill.)

It’s unclear whether DeSantis supports all of the provisions in Andrade’s new bill. It does not have a Senate sponsor, but Andrade said he anticipates that will change.

In response to questions about the measure, a spokesperson for DeSantis directed a reporter to remarks the governor made at a Feb. 7 roundtable discussion. At that event, defamation lawyers bemoaned the difficulty of bringing defamation cases.

“A guy like me who’s an elected official, I have an ability to press my case,” DeSantis said during that discussion. “Some of these other citizens just simply do not.”

Barry Chase, a First Amendment lawyer based in Miami, said he thinks there’s a good chance that at least parts of the bill, if it passes, will be struck down.

“If it’s not struck down, my wife and I are moving to Portugal,” he said.

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