Gov. Ron DeSantis admitted during his roundtable on defamation last week that public figures like himself don’t need help from the courts. Nonetheless, he proposed to upend more than a half-century of First Amendment law so powerful people can more easily sue the press.
He has a “platform to fight back,” he said. His concern is for “run-of-the-mill citizens” who don’t have “thick skins” like their fearless leader.
His panel included lawyers and plaintiffs who have sued media outlets for defamation. Some cases were thrown out, but others settled, while others survived dismissal and remain pending. The lineup ironically underscored that “run-of-the-mill” citizens already have legal recourse.
It became apparent that DeSantis’ concern is not with “the little guys,” as he called his constituents while propped up on a make-believe news anchor’s seat. Predictably, his policies would instead help the wealthy and powerful to bully detractors into silence through expensive litigation, leaving those “little guys” less informed — just how he likes them.
One of his primary interests is punishing anonymous sourcing. That’s rich coming from the governor who conceals his sources dictating Supreme Court nominees, claiming a questionable executive privilege.
Does he expect the press to just give up? If he won’t release documents or talk to journalists, they have a duty to find the news another way.
If DeSantis is worried about anonymity, he should encourage transparency, strengthen open records laws and enhance whistleblower protections so sources need not fear retribution.
But don’t hold your breath. After all, DeSantis knows anonymous sources don’t risk their careers just to gossip about “run-of-the-mill citizens” for whom he feigns sympathy. They often expose official malfeasance.
The rest of DeSantis’ defamation discussion mostly focused on another talking point of thin-skinned elites: Overturning New York Times Co. v. Sullivan, the landmark 1964 U.S. Supreme Court defamation case. It ruled that when suing for defamation, plaintiffs who are public officials have to prove actual malice — that their critics knew their statements were false or recklessly disregarded the truth. Later decisions extended the requirement to other public figures at the center of newsworthy debates.
The standard poses no hurdle to “run-of-the-mill citizens.” It actually protects them because it applies not only when public figures sue the media but when they sue satirists, activists, social media posters — you know, “little guys.”
The rule recognizes that errors and hyperbole are inevitable, and punishing either would discourage criticism of the government, contrary to the First Amendment. Years before DeSantis was even born, the Supreme Court anticipated and unanimously rejected his suggestion that defendants should have to prove in court that their statements were true in every detail.
The court recognized that the expense of satisfying that burden would silence dissent. Imagine, for example, having to prove the truth of a report that the U.S. shot down a Chinese spy balloon earlier this month without resorting to inadmissible hearsay.
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DeSantis framed Sullivan as a radical departure from a more permissive approach, but the only debate was whether the Constitution ever permits liability for discussing public affairs. Three justices believed it does not, because “under our system of government, counterargument and education are the weapons available,” not anti-speech litigation.
Since DeSantis says he agrees that public figures can use their “platforms” to refute criticism, he should support efforts to codify Sullivan, not overturn it.
But his panel attacked Sullivan through selective nitpicking at court rulings. Bad court decisions are hardly exclusive to defamation cases, and for every head-scratcher favoring a defendant, there’s one favoring a plaintiff. The solution is improving the judiciary, not cracking down on press freedoms. For DeSantis, transparency on court nominees would be a start.
So why, with all the issues actually impacting “run-of-the-mill” Floridians, does DeSantis continue prioritizing stifling criticism of public affairs? Maybe, after previous censorship crusades thrust him into the national spotlight, he views this roundtable stunt as a political winner. Or maybe there’s more to it.
Opinions are still nondefamatory as a matter of law in this country, so here’s one of mine: Behind that phony news desk sits a man terrified of what a free press might uncover if he steps onto the presidential stage.
Seth Stern is the director of advocacy for Freedom of the Press Foundation (FPF), a non-profit organization that protects, defends and empowers public-interest journalism. He previously worked as a First Amendment lawyer and journalist.