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Critics across political spectrum say Florida defamation bill will chill free speech

Among those raising concerns was the conservative Americans for Prosperity.
 
The Florida Capitol rotunda as seen on Wednesday, Feb. 8, 2023, in Tallahassee.
The Florida Capitol rotunda as seen on Wednesday, Feb. 8, 2023, in Tallahassee. [ PHIL SEARS | AP ]
Published March 14, 2023

TALLAHASSEE — A Florida House committee on Tuesday gave preliminary approval to a sweeping bill to make it easier to sue for defamation despite warnings from across the political spectrum that the measure is unconstitutional and could lead to a flurry of lawsuits against news organizations, talk radio hosts and even politicians.

The House Civil Justice Subcommittee voted 14-4 for HB 991 by Rep. Alex Andrade, R-Pensacola, which he described as a way to “provide some clarity, some certainty, remove some vagueness and subjectiveness from the private cause of action and tort, known as defamation.”

Opposition came from all sides of the political spectrum as the conservative Americans for Prosperity warned that the bill provides new incentives for people to sue someone who speaks out in public opposition to a government policy, while First Amendment advocates warned that the bill will be the “death knell” for public discourse.

Gov. Ron DeSantis drew national attention to the issue last month when he held a roundtable discussion in Hialeah for what he called “legacy media defamation practices.” Sitting in a faux anchor’s desk in front of a wall of video screens as if he were a cable TV host, he condemned what he called “drive-by media” that “will basically smear somebody” without consequence.

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

While his office did not write the bill, DeSantis said he was sympathetic to it because, “at the end of the day, it’s our view in Florida that we want to be standing up for the little guy against some of these massive media conglomerates.”

Bobby Block, executive director of the First Amendment Foundation, told the committee Tuesday that the bill will instead be used “to crush critics of government policy.”

“Supporters say that this bill was merely an attempt to curb the excesses of the corporate mainstream media and level the playing field for the so-called ‘little guy,’ but HB 991 weaponizes defamation law to the point that it represents a death knell for American traditions of free speech,” he said.

Chris Stranburg, director for legislative affairs for Americans for Prosperity, said his organization opposed a provision in the bill that removes the ability of a prevailing party to win attorneys fees in a lawsuit filed against someone who has spoken out on an issue, known as Strategic Lawsuits Against Public Participation, or SLAPP, suits.

“These changes, we feel, are a great impediment to the ability of Floridians in general, not just public figures ... to protect themselves from the chilling effects of some of these [SLAPP] lawsuits,” Stranburg said.

Is review of New York Times v. Sullivan the goal?

Opponents say that Andrade, DeSantis and other conservatives are aiming to overturn the 1964 landmark U.S. Supreme Court ruling, New York Times v. Sullivan, that established that a plaintiff must prove “actual malice” in defamation disputes.

The court 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.”

Rep. Ashley Gantt, a Miami Democrat, asked Andrade directly if the intent of the bill was to create a federal challenge to the established law.

Andrade did not answer. He said the bill applies to “defamation per se,” a legal doctrine that can be regulated by the state, which holds that some statements of fact are so egregious that a court will presume that they harmed the plaintiff’s reputation.

“It has nothing to do with the federal government or actual malice,” he replied.

Carol LoCicero, a Tampa lawyer and expert on First Amendment law, told the committee she has defended cases on behalf of businesses and individuals, as well as media clients that included conservative publications such as the Villages Daily Sun to NewsMax. LoCicero represents the Tampa Bay Times.

“We want you to understand that the House bill hurts every speaker,” she said. “It doesn’t just hurt what is traditionally referred to as the legacy media. It hurts people from all points of view. It hurts individuals. Frankly, it will hurt politicians as they’re campaigning for office and making statements about their opponents.”

Dick Batchelor, a former Democratic legislator from Orlando and longtime lobbyist, urged the committee to reject the bill because of the harm he expects it will do to discourage people who feel oppressed by government actors to speak out.

“HB 991 just assumes the statements from anonymous sources are false. That is a very dangerous and slippery slope,” he said.

Block warned that Christian and conservative media will likely be “more vulnerable” to lawsuits and increased legal costs because “much of conservative programming centers on commentary and opinion” and is often delivered in “purposefully provocative and colorful ways.”

Rep. Mike Beltran, a Riverview Republican and lawyer, said he thinks the measure could be the vehicle for the high court to overturn New York Times v. Sullivan but, if the bill is used to “be weaponized against conservatives,” then that’s a good thing.

“Stupid and false commentary is not something that the left has a monopoly on,” he said. “I have no problem with conservative media ... being subject to these laws.”

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

A similar bill in the Senate has not had a hearing. HB 991 would:

  • Make it easier to sue media outlets for allegations of defamation by expanding the definitions of defamation, allowing lawsuits to be filed anywhere in the state.
  • Remove protections in existing law that protects reporters from disclosing the sources of information including anonymous sources, and from being compelled to testify.
  • Presume that information provided by an anonymous source is false and makes no exception for whistleblowers.
  • Narrow the definition of a public figure by excluding government employees who are not appointed by public officials and persons whose notoriety arises solely from “defending himself or herself publicly against an accusation.”
  • 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.
  • Allow a judge or jury to “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.”
  • 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.

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