DeSantis, GOP lawmakers pursue efforts to weaken news media protections

The bill may have effect outside of Florida, if it passes and is challenged all the way to the U.S. Supreme Court.
Gov. Ron DeSantis holds a news conference at the Miami Dade College's North Campus on Jan. 26, 2022, in Miami, Florida.
Gov. Ron DeSantis holds a news conference at the Miami Dade College's North Campus on Jan. 26, 2022, in Miami, Florida. [ JOE RAEDLE | Getty Images North America ]
Published Feb. 24|Updated Feb. 27

Gov. Ron DeSantis has targeted one political enemy after another, from removing a top state prosecutor in Tampa who disagreed with him on abortion rights to promoting an anti-woke agenda that limits teaching about racism in public schools and diversity hiring programs at universities. He even went after business behemoth Disney when its CEO opposed an educational bill.

Now, Florida lawmakers — with the support of the governor — are taking aim at the media, pushing legislation that would dramatically weaken legal standards in place for more than a half-century that protect the freedom of the press to report on politicians and other powerful public figures.

The bill would make it easier to sue media outlets for allegations of defamation and make it harder for journalists to do their jobs by undermining the use of unnamed sources, an important reporting tool — particularly for media trying to pull back the curtain on the dealings of elected officials. Many First Amendment advocates and legal experts say it is clearly intended to muzzle reporters who serve as watchdogs for the public.

“I see this as a deliberate effort to punish media organizations that have been critical of the governor and the Republican Legislature,” Thomas Julin, a First Amendment attorney with the Gunster law firm in Miami, said in an interview. “It’s doing that by stripping away protections that were seen as essential for those organizations to remain strong.

“It’s encouraging more people to file more damage claims and punitive damage claims against media organizations,” Julin told the Herald. “They’re trying to put them out of business. ... What’s disturbing is that it’s meant to help DeSantis get elected as president — not because it’s good policy.”

Potential national implications

The bill, filed by a GOP lawmaker last week, also poses a threat to press freedom beyond Florida.

Given the governor’s clout in Tallahassee, it stands a solid chance of passage this spring in the Republican-controlled state Legislature and would likely spur more defamation cases in Florida, legal experts say. Because of the clear-cut constitutional questions, the legislation could eventually be appealed all the way to the United States Supreme Court, where at least two justices have already signaled they are interested in revisiting libel law and press protections.

The Florida legislation (HB 991) aims to eliminate longstanding protections for the news media in their coverage of politicians, government officials and public figures. For starters, the bill directly challenges a 1964 landmark U.S. Supreme Court ruling, New York Times v. Sullivan, that created a formidable standard — “actual malice” — in defamation disputes.

When the civil rights-era case in Alabama was decided as a constitutional First Amendment issue, the Supreme Court unanimously defined the new actual malice standard as making a false statement about a public official “with reckless disregard of whether it was false or not.” Those words were critical because from that point forward, public officials have been faced with proving that a media outlet knew its reporting was false or inaccurate to clear the “actual malice” bar in a defamation lawsuit.

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Related: Those accused of discrimination would have new protections under Florida bill

If passed, Florida’s anti-media bill would be the only one of its kind in the nation. But First Amendment advocates fear other states could follow and the legislation could clear the path for weakening press protections across the country.

Two conservative Supreme Court justices, Clarence Thomas, who is admired by DeSantis, and Neil Gorsuch, already have expressed in prior libel case rulings their interest in reevaluating that bedrock legal principle, citing the rapidly changing digital landscape of news reporting propelled by rampant misinformation, inaccuracies and conspiracies posted on social media sites.

Eventually, the nine-member Supreme Court, dominated by six conservatives, could agree to review the Florida legislation in some fashion and ultimately overturn the New York v. Sullivan landmark decision — just as it did last year with the long-established 1973 Roe v. Wade ruling that had protected the constitutional rights of women to abortion.

“This will not only chill speech, it will freeze speech,” said Edward Birk, a Jacksonville lawyer and general counsel for the First Amendment Foundation, a Tallahassee-based advocacy group for open government. “If this legislation becomes law, the odds will be so tilted against the defendant (news media) that people will be afraid to speak.

“What will that do to our democracy?” Birk said, as he invoked founding father Thomas Jefferson’s famous line about preferring “newspapers without government” over “government without newspapers.”

“The only business protected in the First Amendment is the news media,” he said. “It’s a crucial member of our democracy.”

DeSantis has clashed with media

For DeSantis, the bill would not only weaken legacy news media that he brands “liberal,” but also polish his conservative credentials as he weighs a bid to be the Republican nominee for president. His one-time political mentor and fellow media basher, former President Donald Trump, already announced his candidacy and is considered the GOP front-runner.

On Thursday, DeSantis told reporters in Tallahassee that he has not had a chance to review the proposed libel legislation filed by Rep. Alex Andrade, R-Pensacola, and added that he has “not done or submitted” language for consideration. Generally, however, he said he was supportive of making it easier to sue media outlets for defamation.

“At the end of the day, you have a situation where because of some of the background case law that developed 60 years ago, you have a situation where you’ve got a lot of drive-by media,” DeSantis said. “So they will basically smear somebody, put it out there, and then you will debunk it, but it has kind of already gotten out there.”

DeSantis has repeatedly clashed and avoided interviews with long-established media, instead turning to the outlets that parrot the GOP party line. It’s a tactic that seems to be working, earning him a resounding reelection and lots of attention from the mainstream outlets he criticizes. Florida has one of the nation’s strongest public records laws, but his administration also has repeatedly battled to gut those laws, and the governor’s lawyers have made unprecedented claims to withhold records based on executive privilege — a shield typically reserved for presidents.

Related: DeSantis has executive privilege, a judge ruled, setting up legal battle over secrecy

But DeSantis insists he’s mostly concerned with the impacts on the less powerful.

“It is not so much about me because I do have a platform,” DeSantis said. “But you have other people who do not have the platform I have who get targeted.”

Earlier in the month, DeSantis played the role of host for a panel in Hialeah Gardens on “legacy media defamation practices,” according to a news release and accompanying video link issued by his office.

“We’ve seen over the last generation legacy media outlets increasingly divorce themselves from the truth and instead try to elevate preferred narratives and partisan activism over reporting the facts,” DeSantis said. “In Florida, we want to stand up for the little guy against these massive media conglomerates.”

Among the governor’s guests was Nick Sandmann, a former Catholic high school student from Kentucky. Sandmann participated in the 2019 March for Life rally in Washington, D.C., where he and his friends were captured on videotape in a confrontation with a Native American, Nathan Phillips, who was participating in the Indigenous Peoples March in D.C. that day.

Media outlets published stories and videos online that quoted or cited Phillips as claiming Sandmann “blocked” or “stopped (Phillips’) exit.”

Last year, Sandmann’s libel lawsuits against ABC, CBS, Gannett, the New York Times and Rolling Stone were dismissed by a federal judge — though he had won undisclosed settlements from CNN, NBC Universal and the Washington Post in 2020.

“In my case, I didn’t have any reputation to ruin,” Sandmann said. “I didn’t have any kind of career. I didn’t even get the opportunity of a care to comment. What you got was a rush to judgment where they took a 60-second clip from Twitter. ... They predetermined what the rest of my future was going to look like.”

A prominent libel lawyer, who is representing a West Palm Beach pediatric cardiac surgeon, Michael Black, in a lawsuit against CNN, anchor Anderson Cooper and four others, said the cable network manipulated hospital death statistics and “called him a baby killer” in a 2015 segment. The doctor lost his job as a result, she said. His libel case overcame a dismissal motion and is moving forward.

Related: DeSantis floats bill making it easier to sue news outlets

“The problem is, at every stage in the legal process, from the moment you file your complaint all the way through appeal, the thumb is on the scale in favor of the press,” attorney Elizabeth “Libby” Locke said during the governor’s discussion.

Andrade, the Republican legislator who filed the libel bill on Tuesday, echoed DeSantis’ views.

“Unfortunately, the lack of self regulation has led to actual harm to private individuals as well as public officials,” Andrade said in a text message to the Herald.

Far-reaching fine print

The proposed 11-page legislation would make several key changes. First, a judge or jury could “infer actual malice” in a libel case if “the defamatory action is fabricated” by the news organization, “is the product” of a journalist’s “imagination” or “is based wholly on an anonymous report.”

Perhaps just as important, the legislation would also label any statement by an anonymous source “presumptively false” if someone accused a newspaper, TV station or social media site in a defamation lawsuit of relying on that information for a story that harmed the person’s reputation.

Anonymous sources not only made possible groundbreaking investigative stories such as the Pentagon Papers, My Lai massacre and Watergate scandal, but they are often used by political and other reporters in their everyday coverage of government business, including how politicians deal with special interests and spend tax dollars. They’re also used in crime reporting and other beats to uncover sensitive information of interest to the public.

Also significantly, the proposed bill would redefine the meaning of a “public figure” by still including elected Florida officials in that category but excluding government employees who are not appointed by them.

Other people, such as a college president, prominent doctor or corporate leader, would no longer be considered public figures when they defend themselves publicly against accusations, participate in interviews or appear on the internet. The high bar of proving actual malice to prevail in a libel case would no longer apply to them under this proposed libel law, making it easier to sue and collect damages from news outlets.

At the same time, under the legislation, a public figure such as DeSantis would not have to prove actual malice to win a defamation case “when the allegation does not relate to his or her public status,” the legislation says.

The bill — in a nod to the culture-wars agenda pushed by DeSantis and other conservatives — also would protect the speech of anyone accused of discrimination based on their religious or scientific beliefs when they’re making potentially offensive statements about someone’s sex, gender, sexual orientation or race to the news media or on social media.

There are other aspects of the proposed libel law that would tilt the scales of justice in favor of those suing for defamation, including a provision that would allow a prevailing plaintiff to collect attorney’s fees and costs from the losing news organization. Currently, both sides pay for their own legal fees and costs.

In that vein, the legislation also aims to discourage targets of so-called SLAPP lawsuits, which are normally filed by subjects of news stories or social media commentary who seek to intimidate or silence media organizations or citizens, First Amendment experts say. Under the proposed bill, a defendant who files a motion to dismiss a SLAPP case would have to pay attorney’s fees if the plaintiff prevails at that point. As a result, that costly barrier would discourage a defendant from fighting in court.

Law could affect conservative outlets, too

At the governor’s roundtable discussion earlier this month, political scientist Carson Holloway, a Washington fellow at the Claremont Institute’s Center for the American Way of Life, zeroed in on the landmark New York Times v. Sullivan decision, saying, “It changed the standard under which libel cases are heard in modern America.”

Holloway attacked the “actual malice” standard adopted by the Supreme Court, saying the justices upended the common libel law of states and “reinvented” to the benefit of the news media and the detriment of defamed public figures.

“In practice, that’s cashed out into a system where it’s very, very difficult for any public figure especially to prevail in a libel suit,” Holloway argued. “This is distorting politics in fundamental ways.”

The Claremont Institute recently expanded its reach in Florida, partly in an effort to use its policies as a “template for any red state in America.”

But Birk, the general counsel for the First Amendment Foundation, warned that while DeSantis and his supporters are targeting what they view as the “liberal media,” Florida’s new libel legislation would also affect Fox News, Christian radio and other conservative news outlets.

Fox News is already facing a tough defamation case brought by Dominion Voting Systems, which has accused the right-wing cable network of airing lies that the 2020 presidential election was rigged while privately acknowledging that former President Trump’s allegations of fraud were totally untrue. In its defense, Fox News said “the core of this case remains about freedom of the press and freedom of speech, which are fundamental rights afforded by the Constitution and protected by New York Times v. Sullivan.”

Birk warned that DeSantis and other conservatives should be careful what they wish for. “These kind of changes will cut far right and far left and everywhere in between,” he said.

“This would reverse 60 years of well-settled law that governs defamation,” he told the Herald. “If there is a need to change this area of the law, it should be done carefully.”