Further Summaries/Talking Points
Here is a detailed analysis/summary of the House (991) and Senate (1220) bills and some talking points.
- Abrogates 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.)
- Defines “defamation or privacy tort” to include most any publication tort you can conceive of, including false light.
- Has a terrible venue provision for such torts.
- Permits publication tort plaintiffs to recover attorneys’ fees (and still exempts them from the offer of judgment fee-shifting statute).
- Has the same bad public figure provision.
- Permits factfinders to infer actual malice from an expanded list of circumstances.
- Deems defamatory per se any allegation that the “plaintiff has discriminated against another person or group because of their race, sex, sexual orientation, or gender identity.” (Defendants cannot prove truth by citing the plaintiff’s religious or scientific beliefs.). Plaintiffs are entitled to fees and $35,000 in statutory damages under the discrimination section.
- Still creates a presumption of falsity when anonymous sources are relied upon. (If a journalist refuses to identify an anonymous source, plaintiffs need only prove negligence whatever the plaintiff’s status.).
- Provides that public figures don’t have to prove actual malice if the statements at issue don’t relate to their public status.
- Still guts the anti-SLAPP act.
SB 1220 is better in that it eliminates 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). Putting aside the continuing obvious constitutional deficiencies with the bill, here’s the basic info on the Senate version (SB 1220) as compared to the House version (HB 991):
- Reporter’s Privilege Limitation. The Senate bill abrogates the privilege for both defamation and “related actions.” HB 991 applied only to defamation claims.
- No False Light Tort Created. There’s some good news. SB 1220 does not create a cause of action for false light. Section 770.15 from HB 991 is omitted.
- Chapter 770 Definition Change. The bill does create a new definition section for Chapter 770 (our defamation venue and demand for retraction statute) that applies the section to “libel, slander, and related causes of action.” Interestingly, that should mean that plaintiffs now have to make presuit demands for additional claims based on whatever “and related causes of action recognized in this state” means. Many plaintiffs blow the limitations period because this notice is a condition precedent to filing.
- Chapter 770 Venue Change. The venue provision is worded differently, but still troubling. Plaintiffs can sue in any FL county where the alleged defamatory material “is accessed.” Will lead to forum shopping for counties that suit the plaintiff better and some targeted libel tourism.
- Chapter 770 Public Figure Provision. The meat of the public figure provision is the same. (It’s a tiny bit better, if one can even say things like this in Unconstitutional Wonderland.)
- Chapter 770 Actual Malice Defined. There are differences between the two bills, but they’re substantively pretty close. Actual malice = fabrication; product of the imagination; product of unverified, anonymous report; a statement “so inherently improbable” only a reckless person would publish; statement based on an informant or an informant’s report where there are “obvious reasons to doubt the veracity” (defined as should have known or had reason to know after a reasonable investigation or the report is inherently implausible on its face).
- Chapter 770 Fault Standard Change. Where a source isn’t identified or the statements at issue don’t relate “to the reasons for the plaintiff’s public figure status,” then a plaintiff need only prove negligence – regardless of status. (The House bill created only a presumption of falsity.)
- No General Fee Shifting Provision for Prevailing Plaintiffs Included. Section 770.09 created by HB 991 is omitted.
- No “Discrimination” Defamation Claim Created. Section 770.11(2) in HB 991 is omitted.
- Anti-SLAPP Change. Well, SB 1220 no longer provides for fee awards only when plaintiff’s defeat anti-SLAPP motions; defendants can technically still recover fees. But, in addition to everything else defendants must establish for an anti-SLAPP fee award, the defense must additionally prove the statement was not “negligently made.” The statute also ensures that there’s no burden-shifting onto plaintiffs.
- Severability & Effective Date. SB 1220 doesn’t include the severability “savings” provision, is effective on the same date (7/1/2023), and still doesn’t provide expressly for retroactivity.
- HB 991 in particular attacks all speech, fosters litigation, benefits plaintiffs’ attorneys with fee payments, and increases the financial burdens and risks on businesses and all types of speakers.
- Both bills run counter to the Governor’s and the legislature’s “tort reform” efforts (See HB 837). Here’s a FL Bar Journal article on the reform effort: https://www.floridabar.org/the-florida-bar-news/major-changes-to-florida-tort-laws-proposed/ . he bills would potentially make Florida a “libel tourism” jurisdiction, increasing the number of lawsuits in a state that already has a significant number of defamation suits pending.
- Homeowners policies often cover defamation claims. The legislation could further increase homeowner insurance costs, which are already at crisis levels in this state.
- The bills could increase premiums for any business insurance covering defamation claims as well.
- The bills are inconsistent with the law, both at the United States Supreme Court and Florida Supreme Court levels. It does not follow the rule of law in our country.
- The bills affect speakers from every point of view, not just the so-called “legacy media.” Christian radio stations, commentators coming from the so-called “right,” politicians, individuals and businesses sued by former employees for defamation are equally at risk.
- The bills will become a weapon for anyone who disagrees with the positions expressed by another person. They impact speakers from all ideologies and all points on the political spectrum.
Additional Talking Points from Conservative Perspective