Florida Takes Aim at the First Amendment

This past Monday, Florida’s Republican state senator Jason Brodeur filed a piece of legislation called “An act relating to defamation and related actions.” This filing followed the introduction two weeks ago, in the state’s House of Representatives, of legislation similarly called “An act relating to defamation, false light, and unauthorized publication of name or likenesses.” Despite the demure titles, both bills, in fact, propose radical alterations to Florida’s libel law, which would make it significantly more difficult for journalists to report on government procedures—including public litigation and government hearings—and also make it more difficult to defend against litigation brought by public figures.

The bills were preceded by a somewhat bizarre live-streamed talk-show-style discussion that the state’s Republican governor, Ron DeSantis, had in early February with several people who have been involved, either as plaintiffs or as their lawyers, in bringing suits against “mainstream” media companies. The panelists and DeSantis decried the unfairness of the “actual malice” standard, as articulated by the U.S. Supreme Court in the 1964 case New York Times Company v. Sullivan, and the media’s use of anonymous sources. The media, they claimed, were hiding behind these protections to intentionally destroy and smear people’s reputations.

The actual-malice standard is what the Court held to be the fundamental protection that the First Amendment of the Constitution provides to publishers who are accused of defaming government officials (and, in a later expansion, public figures). A plaintiff has to show that a publisher either knew what it published was false or acted with reckless disregard for falsity—i.e., that the publisher knew it was probably false. (The joke among media lawyers is that actual malice is neither actual nor malice; it’s not about the publisher’s feelings, or malice, toward the subject but about whether the publisher doubts the truth of what it’s publishing.) The First Amendment, the Court held, must protect a free press that is able to report on the conduct of government officials in a manner that, in the famous phrase, is “uninhibited, robust, and wide-open.” Democracy requires an informed citizenry, and, if the press is too fearful of potentially ruinous libel suits, it will not report on urgent matters of state in the absence of conclusive proof, which may never come—or come years too late.

The Florida bills would drastically restrict the protections provided by the actual-malice standard. The House bill, for example, would require a court hearing a libel case to find actual malice (that is, knowing falsity) if “the defendant willfully failed to validate, corroborate, or otherwise verify the defamatory allegation.” Although journalists routinely try to verify allegations they report on, there are many instances where what’s notable are the allegations themselves. This is often the case with statements made in the course of litigation or official public meetings or government reports. It forms the basis for what’s known as the fair-report privilege, which holds that reporters may freely report the contents of official government documents and proceedings and litigation without independently verifying the underlying truth of each factual assertion. (“Verifying” allegations is often a contested process: it may take weeks, or even years, after the precipitating events occur for government proceedings or investigations to be concluded.)

The bills would also eliminate the benefits of Florida’s anti-SLAPP (Strategic Lawsuits Against Public Participation) law. Many states have some version of this law, which is designed to protect publishers from expensive, frivolous lawsuits. Generally, each side in a defamation suit bears its own legal expenses. But, recognizing that some plaintiffs bring libel suits simply as a means to punish criticism and stifle reporting on matters of public interest, many state legislatures have anti-SLAPP statutes that provide that, if a publisher can demonstrate that the litigation is baseless, it can recover its attorney’s fees from the plaintiff. The Florida bills would effectively make this impossible. The House bill reverses it altogether, stating that only plaintiffs can recover their legal fees.

The impulse to shut down, limit, or punish speech directly contradicts what some Republican politicians say they want from Internet platforms, which they maintain unfairly limit or block conservative speech. On the Internet, or at least on Facebook and Twitter, conservatives claim to want more speech, and for platforms to regulate it less. In September, a federal appeals court upheld a Texas statute that prohibits social-media companies from regulating speech based on viewpoint (a similar statute in Florida was found unconstitutional), and, last month, House Republicans held hearings attempting to demonstrate that Twitter’s moderating of its content was “biased” against Republicans.

But DeSantis, during his live-streamed discussion, seemed instead to feel that the true threat is from too much speech—speech that he said put forward “narratives” that “damage a lot of people with lies.” He added that mainstream-media companies, such as CNN, are the “leading purveyors of disinformation in our entire society,” and that he wants to hold them “accountable” —not through “government regulation or restriction” but through “private right of action.” In other words, libel suits. Of course, the proposed Florida legislation would be a government action that would change the landscape of protected speech to drastically favor plaintiffs, and would certainly restrict speech available to Florida residents.

Curiously, despite DeSantis’s complaints, at least one of the panelists on the live stream, Elizabeth Locke, appears to be doing just fine in meeting the actual-malice standard in libel litigation. Locke is a founding partner of Clare Locke, one of the firms currently representing Dominion Voting Systems in its $1.6-billion suit against Fox News. Dominion’s legal team is exposing what seems to be actual malice by using the words of some of Fox’s hosts—including Tucker Carlson and Laura Ingraham, gleaned from internal e-mails and text messages—to demonstrate that the company knew what it was broadcasting was untrue. Fox News has alleged that the quotes are “cherry-picked” (newsflash to Fox: all evidence put forward in civil litigation is cherry-picked to make the strongest possible argument for the side offering it), so we’ll see if the company can establish that it didn’t actually know the voting-fraud claims were as false as their hosts were privately telling one another. But, if the outcome demonstrates that Fox News knowingly put forward false information about Dominion, it will be on the hook for damages to Dominion’s reputation. That’s the healthy functioning of the actual-malice rule.

This raises the question of why DeSantis and the Florida legislature are pushing these changes to libel laws. Right-wing media relies on the constitutional protections provided by New York Times Company v. Sullivan and subsequent cases at least as much as the “mainstream media” (take, for example, Fox’s airing of birtherism; or Tucker Carlson’s false claim that Anthony Fauci “created” COVID; or the claim that renewable energy was to blame for the deadly blackouts in Texas in 2021).

Perhaps DeSantis, who is expected to run for the Presidency in 2024, is really just trying to restrict free discussion of the issues. It’s clear that he doesn’t like to have his policies criticized—ask Disney. A Florida colleague recently said that she had received questions from publishers asking if they should stop their content from being accessible in the state, through Internet geo-blocking, in order to limit the likelihood of a lawsuit there. Publishers fleeing the state, and less news and information for Florida residents about their government, is an obvious potential outcome of the libel regime that DeSantis is pushing.

Florida Takes Aim at the First Amendment
Source: Super Trending News PH