Ignoring arguments that the bill is unconstitutional, a House panel on Tuesday approved a controversial proposal that would make it easier for people to sue news organizations for defamation.
The measure, sponsored by Pensacola Republican Alex Andrade, seeks to limit the “actual malice” standard that for decades has protected journalists writing about powerful government officials.
Andrade, an attorney, filed the measure after Gov. Ron DeSantis called for the U.S. Supreme Court to revisit a 1964 decision in a case known as New York Times v. Sullivan, which held that the First Amendment limits public officials’ ability to sue for defamation.
The bill (HB 991) approved by the House Civil Justice Subcommittee, would make a number of changes to defamation standards and create a presumption that statements provided by anonymous sources are false. The measure also would strip the media of what is known as journalists’ privilege, which shields reporters from having to reveal news-gathering information such as sources’ identities, in defamation lawsuits.
The proposal also would prevent defendants who prevail in litigation from collecting attorney fees and costs.
The measure has caused alarm in media-law circles across the country, with critics saying it would have a chilling effect on watchdog reporting.
In an interview with The News Service of Florida last month, University of Minnesota media-law professor Christopher Terry called Andrade’s bill “horrible.”
“This bill is designed to protect people already in power or with power from journalistic investigation. … You’re not going to be able to do your job. You’re going to be a stenographer for the DeSantis administration. Because you’re not going to be able to criticize him in any way on anything he does as governor,” Terry said. “It’s dangerous.”
The proposal also would make it easier for people accused of discrimination to successfully seek damages for defamation.
Andrade told the House panel his proposal wouldn’t have any effect on journalists who do their jobs properly and that the changes are needed to protect people whose reputations have been sullied on social media or in the press.
“Florida courts have stated that an extreme departure from professional journalistic standards is not sufficient evidence to prove actual malice. So a journalist right now could say, ‘Your honor I didn’t defame them with actual malice, I’m just incompetent,’ and they would win the lawsuit,” he said.
But Carol LoCicero, a First Amendment lawyer whose clients include media outlets in defamation lawsuits, said the bill is unconstitutional.
The discrimination provision in the bill “runs afoul of United States Supreme Court case law” that “protects rhetorical hyperbole,” LoCicero said.
“The new (proposed) tort is a content-based restriction, and content-based restrictions on particular types of speech almost always fail constitutional scrutiny,” she said.
The proposed changes wouldn’t apply only to reporters, LoCicero cautioned.
“We want you to understand that the House bill hurts every speaker. It doesn’t just hurt … what’s been referred to as the ‘legacy media.’ It hurts people from all points of view. It hurts individuals. Frankly, it hurts politicians as they’re campaigning for office and making statements about their opponents,” she said.
The proposal also would allow people to file defamation lawsuits anywhere in the state, which LoCicero said would “facilitate forum shopping.”
The proposed changes, if passed, “will be used to try to crush critics of government policy,” warned Bobby Block, the executive director of the First Amendment Foundation. (Disclosure: The News Service of Florida has been a member of the First Amendment Foundation.)
“The bill’s sweeping provisions are not only unconstitutional, they are extremely dangerous to the future of public debate in Florida,” said Block, adding that Andrade’s proposal “weaponizes defamation law to the point that it represents a death knell for American traditions of free speech.”
Rep. Ashley Gantt, D-Miami, repeatedly questioned Andrade about parts of the bill, calling it an “attack on our First Amendment.” She argued that the bill defies decades of Supreme Court decisions, using a colloquialism while summing up her opposition.
“Hit dogs holler. This bill is about hurt feelings, and hurt feelings are not grounds to pre-empt federal law,” Gantt, an attorney, said, arguing that the measure appeared to be aimed at trying to spur the court to reconsider the Sullivan case.
The bill “seeks to chill the public forum of diverse opinions,” Gantt added.
“This bill is tantamount to the actual meaning of cancel culture,” she said. “It’s very anti-democratic and it’s very ironic that it’s being proposed in the free state of Florida Legislature.”
But Andrade pushed back, saying the bill would “provide clarity and tighten up situations where subjectiveness may occur.”
“Facts don’t care about your feelings. You’re entitled to your personal, subjective viewpoints. This bill does nothing to change that,” he said. “You’re entitled to be wrong in America. This bill doesn’t change that.”
Andrade also said his proposal would not have affected the outcome of the New York Times vs. Sullivan decision.
“What this bill will provide is opportunities for people who’ve been rightfully harmed by a false statement that hurt their reputation to seek justice and not be concerned and not have to spend egregiously enormous amounts of money to seek justice to provide that they were defamed with actual malice somehow because they’re arbitrarily listed as public figures,” he said. “Ultimately, I feel as if this bill gets misconstrued because people desperately want their right to call other people names.”
–Dara Kam, News Service of Florida
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Herman says
If they are News Organizations and report facts (who, what, when and how), without political bias, allow not allow the reader to know what way they lean. They have nothing to worry about.
S. Peters says
Open up a World History book people, this is pure FASCISM! If this is what you want, then don’t bother celebrating July 4th and waving the American Flag.
Local says
About damn time! Now we need two term limits. Then wasteful spending like the bridge to nowhere.
Joseph Barand says
You mean I can nolonger call Donal Trump or Ron DeSantis cocksuckers because I don’t have actual photographs of them doing it? I know it’s true, You know it’s true and Everyone knows it’s true!
Bartholomew says
You could say they are no better than….. I believe.
I am not sure I would insult cocksuckers…I mean I know some…..well you understand I m sure
watchin you says
Almost took the words out of my head. NO ONE can believe the mass media is or has been honest. How many lies have we heard for the last year from the mass media? Look ya right in the eye and create a narrative that they KNOW is false.
Laurel says
Herman: Had this law already been in place, we would never have heard about Watergate. You do remember “Deep Throat,” do you not?
Laurel says
Well, let’s see how this goes:
Hmmm, we’re only protecting politicians, not the rest of us.
Fox “News” whould be first on the chopping block. Go to black.
Trump can no longer say “Lock her up,” or a million other nasties he loves to spit out.
Marjorie Taylor Green is out the door.
Donald Trump Jr. is out the door.
Ivanka Trump ran out the door a long time ago (where’d she run to with all the money she made as a so called advisor?)
Steve Bannon can twiddle his thumbs.
Ooooooh, and all the conservative radios hosts….
This actually could be amusing before it dies.
ralph6 says
Fascism is also a capitalist system with government controlling business and information. Pretty much the federal government is now for sure.
Pogo says
@Laurel
Could be. desantis, renner, and the rest of the flea circus might wish they had asked Robespierre about keeping one’s head.
https://www.google.com/search?q=Robespierre
jake says
And yet, you didn’t mention MSM protecting Circus Joe and all his lies.
Laurel says
Jake: I’ve listened to Bill O’Reilly, Mark Levine, one crazy ass lady in south Florida (can’t remember her name, but ran into personally once, and she is a crazy ass) Rush Limbaugh and others, and they are slippery as all get out. A whole lot of bull. I’ve listened to MSNBC’s Joe and Mika, and my only complaints about them are Joe is a misogynist, and loves to pontificate, and Mika loves to tsk, tsk, tsk. Boring, but not propaganda. I don’t know what “MSM’ is. Fox “News” has been blatantly lying for years now, and completely misleading their viewers, and owner admitted it in deposition. It’s a big difference there.
Being that I am no fan of Joe Scarborough, please list me a some of the lies you claim Joe stated since you are familiar with his show.
Timothy Patrick Welch says
Most Democrat politicians have law degrees
Most Republican politicians have business degrees
But our “Sue Happy Society” may be to blame.
Sherry says
Please cite a “credible” source for your statement.
Sherry says
@ jake. . . please cite the exact lies (from a “credible” sourde) that Joe Scarborough has presented on air. Otherwise, your comment is just more right winged BS.
Sherry says
Fascism 101. . . restrict the “free press” !!!!
The Florida Republican legislature counting on all those Florida Republican judges to throw out the cases against the “lying” “defaming” far right media. . . and only rule against main stream/liberal media outlets.
This outrageously unconstitutional stunt should immediately be put before the Supreme Court!
jake says
“In journalism, mainstream media (MSM) is a term and abbreviation used to refer collectively to the various large mass news media that influence many people and both reflect and shape prevailing currents of thought.”
Circus Joe is a reference our beloved President. If you need to know about his “lies”, just Google it.
Thanks for the laugh, you ladies made my day.
jake says
See above comment. Still laughing…
Sherry says
NO Jake. . . present your fact checked arguments from a credible source or we will continue to “know” that all you can do is spout FOX, Newsmax and Breitbart BS!
Sherry says
Regardless of which Joe you are referring to. . .
Timothy Patrick Welch says
One
https://news.bloomberglaw.com/us-law-week/insight-law-school-popular-for-congress-with-harvard-georgetown-topping-list
Laurel says
…all by yourself…
Pogo says
@tpw
“Most Democrat politicians have law degrees
Most Republican politicians have business degrees…”
And it shows
https://www.google.com/search?q=lawmaker
“…But our “Sue Happy Society” may be to blame.”
Ya think?
https://www.google.com/search?q=trump+lawsuit+record
Is it this too?
https://www.google.com/search?q=rick+scott+lawsuit+record
And this?
https://www.google.com/search?q=ron+desantis+lawsuit+record
Much more
https://www.google.com/search?q=us+party+by+education+and+religion
Much more
https://www.google.com/search?q=us+party+by+profession+and+occupation
Much more
https://www.google.com/search?q=us+party+by+donors+occupation
Sherry says
Yippee for Democrats! Congress is responsible for creating federal laws, correct? Wouldn’t going to law school prepare them better for those positions? Going to law school and obtaining a law degree is much more difficult than obtaining some kind of business degree. Therefore. Democrats in Congress are better educated than Republicans.
So, TPW what exactly is your point? All I can determine is that Democratic Congresspersons are much better qualified for their positions than Republicans. . . maybe except for “budget” work. OH! OH! That can’t be correct. . . LOL! Federal budget deficits under Republican Presidents collectively are 54% higher than under Democratic Presidents.