Florida Republicans are touting a new bill designed to target media outlets publishing fallacious information about right-leaning public figures. Gov. Ron DeSantis is championing the proposed legislation as a way to fight back against the false narratives the press peddles about high-profile conservatives.
At first glance, the measure might sound like an appropriate step in dealing with rampant left-wing propaganda in the news. But a closer examination shows that this one might not be as desirable as it seems.
A new bill introduced in Florida has raised concerns over potential threats to First Amendment rights, as it proposes to make it easier to sue news media for defamation. The legislation, HB 991, was filed by Rep. Alex Andrade, a Republican, and contains provisions that seem to defy landmark Supreme Court rulings on freedom of speech. The move comes in the wake of a roundtable discussion held by Florida Governor Ron DeSantis, during which he accused legacy news outlets of prioritizing “preferred narratives” over truth.
In a recent phone call, Rep. Andrade spoke out against what he sees as journalists’ unchecked power. “We’ve seen countless examples in recent history of members of the journalism profession playing fast and loose with facts,” he said. “I don’t believe that journalists have more or special privilege to be protected against the harm that they cause when they act recklessly or negligently.”
At a recent event, Gov. DeSantis lauded the bill, which would also change the legal status of using anonymous sources in reporting.
“If somebody is defamed…if [the journalist is] using anonymous sources, that can be a presumption that that was done with malice,” he said on Thursday, “I think what’s happened is particularly corporate media outlets have relied on anonymous sources to smear people.”
DeSantis assured people that using the government to discourage anonymous sourcing isn’t “going to cause much of a difference in terms of free speech” and will only “cause some people to not want to put out things that are false.”
At the heart of the bill is a provision that would limit the “actual malice” requirement that has historically afforded journalists some protection against lawsuits. The term refers to situations in which someone knowingly acts on false information or recklessly disregards the accuracy of the information they publish. If the bill is passed, it would mean that journalists could be sued more easily for defamation, even if they believed the information they reported was true at the time. Critics argue this could result in a chilling effect on the media’s ability to hold powerful individuals and institutions accountable.
There are aspects of the bill that might make sense. For example, it would establish that one does not automatically become a public figure just by being interviewed by a journalist, going viral in a video, or holding “public employment other than elected office or appointment by an elected official.”
This does not seem to be an issue. People in these positions should not have to operate with the higher standard to prove defamation that comes with being a public figure. Treating these folks like private citizens seems more appropriate. But from where I sit, the rest of the bill is problematic when it comes to freedom of expression and of the press.
The proposed Florida bill, HB 991, would expand the definition of defamation to include allegations of discrimination based on race, sex, sexual orientation, or gender identity. If passed, this would allow plaintiffs to sue for defamation per se, meaning they would not need to prove actual harm to win statutory damages of at least $35,000, in addition to other damages.
The bill also includes a provision that would automatically presume any statement made by an anonymous source to be false in the event of a defamation charge. This would have serious implications for journalists, who would no longer be able to legally protect the anonymity of their sources. As attorney Lili Levi explains, “Think about being a national security reporter, and you have an anonymous source and you believe that the anonymous source is truthful. You’ve had a relationship with the source. And you know if you rely on that anonymous source, then that statement, because the source is anonymous, is presumptively false. That’s a really striking part of the statute.”
Legal experts have noted that while the bill may pass into law, it could face challenges in the long term. The Supreme Court has previously declined several cases that might have led to a reconsideration of the actual malice standard, although Justices Clarence Thomas and Neil Gorsuch have expressed interest in revisiting this precedent.
In addition, the bill includes a severability clause that would allow remaining provisions to stay in effect even if certain sections are struck down by the courts. This means that even if the actual malice rules are found unconstitutional, other provisions related to damages and legal fees could remain in place.
As a journalist, this law would be quite terrifying if I were a Floridian. For starters, I used an anonymous source when reporting on how a high school teacher in Jefferson County, Colorado was punished for refusing to affirm a child’s gender. If the school decided to sue me for my use of an anonymous source, this law would presume that the information I wrote about was false and subject me to fines.
As a political commentator, this law also has some issues in that I could also be vulnerable if I opine that an individual or organization has discriminated against someone based on immutable characteristics. If you read my work, I am constantly pointing out racism among progressives in every area of society. If I were in Florida, would they be able to successfully sue me for defamation for giving my opinion on their racism?
I am in the same boat with conservatives and libertarians who criticize the activist media – it is one of my main topics because I believe it truly is the enemy of the people. I understand why people believe it should be easier to hold these people accountable. But I am not willing to violate natural rights to do so because it is the wrong thing to do, and it will most certainly be used against people like myself and my colleagues. There has to be a better way.