Free speech advocates quickly criticized legislation introduced in Florida this week that would make it easier for public figures to sue media companies for defamation.
The bill, introduced by Rep. Alex Andrade (R), would lower the standard to sue, including removing protections for journalists such as not being forced to reveal sources, and require the presumption that anonymous sources are lying. The bill also narrows what counts as a public figure for the purposes of a defamation case.
Bobby Block, executive director of the First Amendment Foundation, a Florida-based nonprofit focused on free speech and government accountability, said the bill would endanger open discourse in Florida.
“We think it’s a terrible piece of legislation,” Block said.
Joe Cohn of the Foundation of Individual Rights and Expression, also known as FIRE, was equally critical of the bill.
“Passage of this dangerous bill would spell disaster for free speech by constricting the open debate that is critical for a democracy to function,” Cohn said.
The measure’s introduction followed a roundtable discussion held by Gov. Ron DeSantis (R), an outspoken media critic, on the effects of “defamation from the legacy media.”
“When the media attacks me, I have a platform to fight back,” DeSantis said in a statement. “When they attack everyday citizens, these individuals don’t have the adequate resources to fight back. In Florida, we want to stand up for the little guy against these massive media conglomerates.”
DeSantis supported a similar measure introduced last year.
Free speech advocates said the bill would upend an important legal precedent established in the 1964 Supreme Court case, New York Times v. Sullivan. Under the ruling, a public official claiming to be libeled must prove that the statement was made with actual malice, which is defined as “with knowledge that it was false or with reckless disregard of whether it was false.”
“I can’t underscore seriously enough that the legal precedents set forth in New York Times v. Sullivan is so crucial to providing the breathing room for open debate on public matters,” Cohn said.
Under the bill, a public figure “does not need to show actual malice to prevail in a defamation action in certain circumstances.”
The “actual malice” standard has come under scrutiny by conservatives in recent years, including by Supreme Court Justices Clarence Thomas and Neil Gorsuch, who in 2022 wrote critically of the standard.
That followed a 2019 opinion from Thomas that called the standard into question by stating that it had no basis in the Constitution. He called it “policy-driven decisions masquerading as constitutional law.”
Block said the measure would violate the U.S. Constitution’s First Amendment, which provides the right to free speech and a free press. He also believes it would violate the Constitution’s 14th Amendment, which includes a right to equal protection under the law.
“Every other citizen of every other state has rights granted to them under this [Supreme Court] ruling and now the citizens of Florida don’t,” Block said of the bill, should it become law.
Block and Cohn also challenged DeSantis’s argument that lowering defamation standards would help the everyman.
Block framed the issue in terms of media companies, noting that conservative and Christian-affiliated news outlets do not have the resources of more prominent national outlets that can afford to be sued.
“It is designed to be punitive to the free press,” Block said.