Ron DeSantis Wants To Rewrite Defamation Law
"The bill is an aggressive and blatantly unconstitutional attempt to rewrite defamation law in a manner that protects the powerful from criticism by journalists and the public," said one attorney.
A legislative ally of Florida Gov. Ron DeSantis introduced a bill in the Florida House on Tuesday that would remove many of the legal protections against defamation lawsuits established in the 1964 Supreme Court case New York Times v. Sullivan. The new bill is yet another attempt by DeSantis, an aggressive critic of defamation law, to curb First Amendment protections in Florida.
Introduced by Rep. Alex Andrade (R—Pensacola), the bill would make sweeping changes to the standards for pursuing a defamation claim against a public figure. The law would narrow the definition of a public figure by excluding persons whose notoriety arises solely from "defending himself or herself publicly against an accusation," giving an interview on a subject, public employment (other than elected or appointed office), or "a video, an image, or a statement uploaded on the Internet that has reached a broad audience."
"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," DeSantis said in a February 7 roundtable event on the subject, adding that journalism "really chills, I think, people's willingness to want to participate" in public discussion.
DeSantis has strongly criticized New York Times v. Sullivan, a 1964 Supreme Court case establishing the actual malice standard for defamation claims against public figures. Following Sullivan, public officials could not successfully sue for libel or defamation without proving that the false statements made against them were made with "actual malice"—meaning "with knowledge that it was false or with reckless disregard of whether it was false or not."
Andrade's bill explicitly defies Sullivan by establishing that the "actual malice" standard will not be required to prove defamation "when the allegation does not relate to the reason for his or her public status." Further, the bill also significantly expands the circumstances under which a fact finder can infer actual malice, such as when an allegation is "inherently implausible" or "There are obvious reasons to doubt the veracity" of the allegation.
Another troubling provision of the bill says that "an allegation that the plaintiff has discriminated against another person or group because of their race, sex, sexual orientation, or gender identity constitutes defamation per se." This means that when such an accusation is false, it will automatically be considered defamation. However, the bill also restricts how individuals can prove the truth of their claims, as claims of discrimination based on gender identity and sexual orientation cannot be verified by "citing plaintiff's constitutionally protected religious expression or beliefs," or their "scientific" beliefs.
The bill singles out journalists in particular. It removes existing protections of "journalist's privilege," which allows journalists, under most circumstances, to refuse to identify anonymous sources or disclose other information gained in newsgathering. The bill explicitly removes these privileges in the interest of legal defamation claims. Further, the bill would make using anonymous sources much more difficult. Not only would the bill assume that statements from anonymous sources are false in defamation proceedings, but simply using an anonymous source will be considered sufficient for actual malice. In cases where a journalist refuses to identify an anonymous source, the bill states that "plaintiffs need only prove that the defendant acted negligently."
The bill would face immediate legal challenges if passed and signed into law, which seems to be the point.
"There have been some in conservative circles, including Justice Thomas, who have wanted there to be a test case to revisit Times v. Sullivan," Joe Cohn, the legislative and policy director at the Foundation for Individual Rights and Expression, tells Reason. "And I think there are lawmakers out there that want to provide legislation that contradicts the existing case law as an invitation for courts to send that up the chain. And it's tremendously chilling of speech."
This bill is only the latest attempt from Gov. DeSantis to chill dissenting speech in Florida.
"The bill is an aggressive and blatantly unconstitutional attempt to rewrite defamation law in a manner that protects the powerful from criticism by journalists and the public," says Cohn. "And it really champions the rights of the powerful and public figures in particular as compared to the rights of ordinary people to raise questions and lodge criticisms."