'EMPOWER BIGOTS ACT'

Proposed Defamation Law Would Have Chilling Effect On First Amendment

Jason Parsley

Florida lawmakers are looking at overhauling libel law in the state, including making it easier for politicians to sue news outlets.

House Bill 991 would lower the bar on who’s considered a public figure under defamation law, and lower the bar on what’s considered defamation.

The bill is alarming to free speech advocates.

“It is important to remember that the free press serves as the eyes, ears, and mouth of our democracy,” said Russell Cormican, a Fort Lauderdale First Amendment attorney. “You may not always agree with what you see, hear, and read, but the correct response to that is not curtailing free expression but encouraging more of it.”

In February Gov. Ron DeSantis held a roundtable about the current libel laws in the country saying he was surrounded by people who have fought to hold “big media companies accountable for their actionable lies.”

“We live in a politically polarized world and that translates to polarization in our media outlets as well,” Cormican said. “The new bill aims to make it easier for politicians or political figures to file legal claims against the media outlets that don’t share their viewpoints.”

The original bill stated the U.S. Supreme Court should reassess the 1964 New York Times v. Sullivan decision and “return to the states the authority to protect their residents from defamatory falsehoods and the ability to make their own policy judgments regarding the prevention of defamation.”

Rep. Alex Andrade, who sponsored the bill, pulled it the next day and refiled it without mentioning the Supreme Court.

“This bill is very alarming, because it threatens one of the bedrock principles of free speech in America, which is the right to criticize government officials and other powerful figures without fear of financial or other types of retribution,” Katie Fallow, senior counsel at Columbia University’s Knight First Amendment Institute, told the Tallahasse Democrat.

Two Supreme Court justices have said they want to revisit the Sullivan decision, a landmark decision ruling that the First Amendment to the U.S. Constitution’s freedom of speech protections limit the ability of public officials to sue for defamation.

“While that kind of dramatic reversal seemed far-fetched a few years ago, it does not seem implausible today given that the conservative courts overturned Roe v. Wade,” Fallow said.

The bill lowers the bar on what constitutes a public figure and defamation. The bill also says that statements by an anonymous source are assumed false in a defamation case. The bill also lowers the “actual malice” requirement that allows journalists some room for error. The term “actual malice” refers to the idea that someone acted on information they knew to be false, or with disregard for the accuracy of that information.

CORMICAN SUMS IT AS SUCH:

The current state of the law makes it more difficult for public figures and officials to bring defamation claims. A private citizen only has to prove that a false statement caused an injury in order to state a claim for defamation. If a person is a public figure they must additionally prove that the statement was made with ‘actual malice’ which means the statement was made with knowledge that it is false or with a reckless disregard for the truth. The rationale behind this additional requirement for public figures is that discussion of matters of public concern are so important in our society that we must allow for free and open discourse. Allowing public figures to pursue defamation claims where a media outlet published the offending statement without reason to believe it was false can serve as an impediment to the free flow of information.

This bill would also punish news outlets for using anonymous sources.

“Journalists use anonymous sources to learn about misdeeds in government, industry and other sectors,” First Amendment Foundation Executive Director Bobby Block told the Tallahassee Democrat. “[They] use them to expose what is going on behind the scenes, so that the public not only knows about it, but has the ability to discuss and pressure their officials to act.”

Block went on to say that had this kind of law been in place in years past, it could have prevented stories that exposed the Watergate scandal and Harvey Weinstein’s sex crimes.

The bill could also have big ramifications for the LGBT community. The legislation explicitly cites the LGBT community saying, “a defendant cannot prove the truth of an allegation of discrimination with respect to sexual orientation or gender identity by citing a plaintiff’s constitutionally protected religious expression or beliefs.

TRUTHOUT SUMS IT UP AS SUCH:

“House Bill 991 would also give Florida residents the right to sue others (both in the state or elsewhere in the U.S.) who describe their actions online as transphobic or homophobic, for sums as high as $35,000, and would not allow the truth to be used in defenses against such lawsuits.” the website reads.

Alejandra Caraballo, a civil rights attorney and clinical instructor at the Harvard Law School Cyberlaw Clinic dubbed the bill the “Empower Bigots Act.”

“If it involves LGBTQ people and someone’s beliefs, truth is no defense,” Caraballo tweeted. “This is absolutely chilling.”

According to the Advocate Andrade pushed back at those descriptions saying his legislation only applies to discrimination that causes actual harm. He assured the outlet someone could still call him a racist, even if it’s not true, and not get sued.

“Anyone who is concerned somehow the truth no longer matters in a defamation claim needs to go review the rules of evidence,” Andrade told The Advocate. “They are speaking from authority when they clearly have none.”

Additionally, HB 991 would change the law so that someone who sues a journalist and wins would get their legal costs covered. But if that person loses, the journalist would have to cover their own legal expenses. Republicans, though, seem to want it both ways.

Earlier in the year Republicans made it harder for people to sue big insurance companies.

“For decades, Florida has been considered a judicial hellhole due to excessive litigation and a legal system that benefitted the lawyers more than people who are injured,” DeSantis said in an earlier press release promoting legislation intended to shield businesses and insurance companies from lawsuits.

Meanwhile, HB 991 would make it easier for powerful people to sue others.

Rep. Hillary Cassel (D-Dania Beach), said it’s a matter of who’s going to have access to the courts under Republican rule.

“It’s not going to be everyday Floridians who are wronged by bad actors,” Cassel told the Tallahassee Democrat. “It’s those in power and the elites and those people that are continuing to serve culture wars that don’t actually serve everyday Floridians.”