TALLAHASSEE — The author of a House bill to make it easier to sue the public and journalists over defamation claims says he is preparing amendments to the measure to clarify a provision that assumes that any statement from an anonymous source is false and to allow for alternatives to damages in some cases.
Rep. Alex Andrade, R-Pensacola, said in an interview on Friday that he intends to propose modifications to the bill, HB 991, before it is taken up at its next stop, the House Judiciary Committee.
The bill, and its Senate companion, SB 1220, will eliminate longstanding protections for the news media in coverage of politicians, government officials and public figures, make it easier to sue media outlets and change who is considered a public figure for the purpose of establishing a claim of defamation, libel and slander.
But the measure has come under intense criticism from First Amendment advocates, who say it is a direct violation of the free speech protections in the U.S. Constitution, and from both legacy media and conservative media outlets who warn that it will open the door to a barrage of lawsuits, including against conservative talk radio hosts.
“This bill is effectively neutering our Conservative News/Talk radio station in Southwest Florida, 92.5 FOX News, from which most of you have benefited,” said James Schwartzel, the owner of the Fort Myers-based radio station, in a letter to legislators.
Schwartzel’s station hosts conservative talk radio celebrities such as Glenn Beck, Sean Hannity and Mark Levin. He warned that if the bill becomes law his station “will change our conservative programming, and announcers will quit. The devastation will be severe and swift. Republicans will lose one of their most prominent platforms to reach their base forever.”
The criticism continued on Thursday when Congressman Cory Mills, a conservative Republican from New Smyrna Beach, sent a letter to House Speaker Paul Renner, R-Palm Bay, and Senate President Kathleen Passidomo, R-Naples, urging them to reconsider what he considers “clearly unconstitutional” language in the defamation bill.
In the three-page letter, Mills outlined a litany of objections, including that it will “target speech based on content” and “tilt the playing field in favor of plaintiffs in certain defamation actions by setting the burden of proof below the standard set by the Supreme Court of the United States.”
Asked about it on Friday, Renner said he had not seen the letter but said he supported the bill, confirming for the first time that the Legislature’s goal — as outlined by Gov. Ron DeSantis — is to set up a legal challenge to New York Times v. Sullivan, the landmark Supreme Court ruling on libel and public officials.
In that 1964 ruling, the court defined the new standard for actual malice — a key factor in determining whether someone was libeled — as making a false statement about a public official “with reckless disregard of whether it was false or not.”
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Mills also objected to the bill’s provisions that any information provided by anonymous sources will be deemed false.
“While I understand the motivation to create this presumption given the myriad examples of abuse by legacy media outlets, the legitimate instances were relying on any anonymous sources counsels caution,” he wrote. “For example, journalists routinely rely on granting sources anonymity in cases involving corporate and government whistleblowers, national security and law enforcement abuses, or egregious and illegal misconduct by power individuals.”
He said the bill is “not only unpatriotic, but it is not representative of the free state of Florida” and warned that, if passed, it would “stifle all media voices — whether liberal, conservative or neutral — that your constituents have come to trust and rely on, as well as any individual who chooses to exercise their rights to freedom of speech.”
After Mills posted his letter on Twitter on Friday, Andrade was defiant. “Calling @CoryMillsFL an imbecile will still not be considered defamation after this bill passes,” he responded with a quote tweet and lengthy exchange. He suggested that Mills was aligned with “liberal media outlets.”
“Respectfully… you’re acting like a [clown emoji],” he wrote and referred to U.S. Supreme Court Justices Clarence Thomas and Neil Gorsuch, who have each expressed interest in revisiting existing standards in defamation cases.
Andrade said that while he stands by the thrust of his proposals and disagrees with the analysis of both Mills and Schwartzel, there is room for some tweaks.
“I want to make sure that there’s no opportunity for misinterpretation,” he said in an interview. “We’re gonna file amendments to tweak it and make it more clear.”
Specifically, he said, he wants to allow media organizations to rely on multiple anonymous sources if needed.
“If you have an anonymous source, but you also have primary sources you look to verify that anonymous source, then you’ve proven a good faith attempt that’s to the point where you should still overcome actual malice,” he explained.
A second change he is pursuing would provide an individual with a defamation claim an avenue to have the statement corrected before they have to file for damages.
“What I really want to have happen is this opportunity where, before we get to damages, before we get to public figure, before we get to actual malice, and all you want to do is clear your name, you have that opportunity in a fast, direct process,” he said. “Because right now there is no opportunity.”
“Public figures should expect some level of rough and tumble discourse and people getting it wrong about them,” he said. “I just want, when folks get it wrong about a public figure, to know that at least they got it wrong in good faith and made a good faith attempt not to get it wrong.”
Andrade said he also disagrees that the bill is intended to become a vehicle to challenge the NYT v. Sullivan standards.
“My intent is not to overcome Sullivan,” he said, but to allow the state to set its own tort standards. “Public figures like me, would still have to overcome actual malice to win damages.”