Legal Update: Marsy’s Law Appeal and Defamation Defenses
Here are the latest developments in a couple of areas we have been following closely.
Marsy’s Law Update (LEO Identity Appeal)
Law enforcement agencies around the state have been withholding victim identity information based a variety of interpretations of Marsy’s Law. Some LEAs are reading the language quite broadly and redacting information without any action/request from the victim. Others are taking a narrower approach, requiring some sort of proactive opt-in by the victim to claim secrecy.
Agencies also disagree about what constitutes a ‘victim.” Does it extend beyond crimes to delinquent acts? If so, what is a delinquent act? What harms are covered? Is a person still a victim if he or she suffers no physical harm but only psychological or financial?
Since there is no consistent approach and definition, ML is being applied inconsistently which has become an ongoing problem around the state.
Hopefully, a case now before the Florida Supreme Court will bring some clarity. The case involves the Tallahassee police department’s attempt to keep police officers’ identities secret under ML in two separate police shootings where suspects brandished deadly weapons. The Court has allowed a group of media entities including FPA to file a brief as amici curiae. Briefing from various parties is ongoing.
The latest development in the case was oral argument held on December 7. The media coalition of which FPA is part shared time with the City of Tallahassee in arguing officers’ identities should not be kept secret. While the court seemed lukewarm on several arguments, they were interested in the argument that the identities are waived because that info. will be revealed anyway in the criminal process and their name is on their badge. Hopefully, that will come out in some form in the decision which we expect in 3-4 months.
Bottom line, if we get a good result, it would likely be on name/identity or trigger/process grounds. If the former, that would be a great win for access as to all ML victims.
Bill Expected to Weaken Libel Lawsuit Defenses
Another area we have been watching relates to libel lawsuits. For many years, courts have abided by the U.S. Supreme Court-developed “actual malice” standard in the NYT versus Sullivan case which requires public figures to overcome a heightened burden in order to bring a successful libel lawsuit against a publisher.
The defense is intended to prevent the shutting down of critical reporting about politicians and other powerful persons. It is designed to strike a delicate balance between fair comment and mistakes that happen in order to ensure there’s vibrant public discourse. Importantly, the actual malice standard does not apply to ordinary people but to only public officials and public figures.
Recently, however, the standard has come under attack by certain groups who claim it makes it practically impossible for the “average person” to sue to protect their good name. A recent press release from Governor Ron DeSantis’ Office repeated this argument, calling upon the Legislature to adopt legislation making it easier to sue the press. The release followed a roundtable discussion with the governor and media critics in Hialeah Gardens.
We are watching what happens next and reaching out to colleagues to help oppose these efforts. Bobby Block ED of the FAF had this to say in a recent public release:
We want the public and our legislators to understand the law in question clearly. NYT v. Sullivan recognizes federal constitutional protections for free speech and press based on the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include sometimes unpleasant attacks on government and public officials. We strongly urge our elected officials to refrain from attempting to reverse 50 years of legal precedent that has served our democracy well and provided for robust national discussions
We will keep members informed about any legislation that is filed and will push back on attempts to turn back the clock on protected speech that criticizes public figures and elected officials.