Defamation Bills Filed Threatening Citizen Discourse and Free Speech

HB 791 by Rep. Andrade, R-Pensacola; SB 1220 by Sen. Brodeur, R-Lake Mary

The above bills have potential far-reaching implications on traditional and non-traditional news outlets and the ability of citizens to engage in free speech activities. The House bill has been referred to the Civil Justice Subcommittee and Judiciary Committee. The Senate bill has yet to be referred.

Background

House Bill

A major part of the House bill changes the defamation guardrails for lawsuits by public figures imposed by the 1964 U.S. Supreme Court decision in NYT v. Sullivan. That case established a high standard (actual malice) that public figures must surmount in order to bring a successful libel lawsuit. This high standard prevents chilling of free speech by lawsuits from politicians and other powerful persons and entities intent on shutting down critical reporting.

The current bill weakens the traditional standard by making it harder for plaintiffs to be deemed a public figure and broadens the type of actions by publications that are considered malicious.

The bill follows recent criticism of the standard from certain groups who claim it makes it practically impossible for publicly-known persons to sue to protect their good name and that states should be allowed to set their own defamation parameters as opposed to being dictated by federal law. Governor DeSantis held a recent roundtable echoing these criticisms and his office is reportedly working with the bill sponsor to push it forward. If passed, it could then be challenged in court and perhaps later become a vehicle for the high court to reverse its actual malice doctrine.

The actual malice language in the bill is not the only provisions harmful to media reporting and citizen discourse. It also ends the statutory reporter’s privilege in defamation cases; creates a statutory false light tort; (The Florida Supreme Court had refused to recognize the tort after a bunch of horrendous false light claims years ago.); permits publication tort plaintiffs to recover attorney’s fees; and guts the anti-SLAPP act.

Here is the bill in full: https://www.myfloridahouse.gov/Sections/Bills/billsdetail.aspx?BillId=77769

Senate Bill

The Senate bill is similar to the House bill but is slightly less onerous in that it eliminates some of the more extreme provisions of HB 991 (no false light tort created, no provision providing all prevailing defamation plaintiffs recover fees, no “discrimination” defamation claim created).

Actions To Oppose

Thomas and LoCicero has organized a robust group to weigh in on the bill from multiple perspectives, including lobbyists, academics, journalists, and lawyers. FPA and FAF are working in concert with this group.

Since the Legislature in its current composition will likely support the Governor’s position and pass the bill, our main focus will be to create a record for a judicial challenge and to strip off areas that may not be as ripe for judicial review.  We will also be focusing on the damage the bill will do to not just so called “legacy media” but also to conservative and religious publications and broadcasters who may fall in the crosshairs of a libel lawsuit.

We will be sharing contacts among ourselves. Any publicity, op/eds, other efforts to educate are important now.  Any other efforts to educate and explain why defeating this bill matters to individuals (including politicians) and businesses would be greatly appreciated.  The bill hurts little guys and big business, and elected officials, for that matter.

The group will also be working on an issue list/talking points and craft a letter to legislators to get our concerns into the legislative history in written form.

Some of the group will have lobbyist contacts who may be willing to take this issue on and have the Governor’s ear.

Finally, we will have to react as the bill moves forward.  Based on committee meetings, we’ll have to see who can testify from the group.