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Florida defamation bills head to committee encircled by conservative, free press critics

“The devastation will be severe and swift," warned the owner of a radio station that features conservative hosts like Glenn Beck and Sean Hannity.

TALLAHASSEE, Fla. (CN) — Longstanding protections for journalists are inching toward a pressure point as two bills move through the Florida Legislature, appearing to tee up a challenge of Supreme Court precedent considered by media figures across party lines as the backbone for their very existence. 

The legislation appears to contravene the media liability shield that the Supreme Court established in the 1964 landmark case New York Times v. Sullivan. Justice William Brennan wrote for the unanimous court that there must be knowledge of or reckless disregard for its falsity, termed “actual malice," in order to find the press liable for a false statement about a public official.

In Florida’s House of Representatives, HB 991 would provide that “a public figure does not need to show actual malice to prevail in a defamation action in certain circumstances.” It also narrows the definition of a “public figure” and creates the presumption that a statement by an anonymous source is false. 

Representative Alex Andrade, who represents parts of the Florida panhandle, wrote the House bill, and fellow Republican Jason Brodeur penned its companion in the Florida Senate. The pair of bills would advance a major goal of Governor Ron DeSantis, but fellow party and conservative media members are on a very different page.

Among those who have crossed ideological lines to voice their opposition is Representative Cory Mills. In addition to warning that the bill would “functionally eliminate the use of anonymous sources,” including government and corporate whistleblowers, Mills expressed concern that the changes would be unconstitutional in how “public official” is defined and in targeting speech based on its content. 

“I am not convinced that Florida has a compelling government interest that would allow it to infringe on the First Amendment rights of citizens with content-based restrictions of the sort proposed in these bills,” Mills wrote in a March 23 letter to the Legislature. “If passed, they will stifle all media voices — whether liberal, conservative, or neutral — that your constituents have come to trust and rely on, as well as any individual who chooses to exercise their rights to freedom of speech.” 

James Schwartzel owns 92.5 FOX News, a radio station that features prominent conservative hosts like Glenn Beck and Sean Hannity. In a letter of his own, he said the bill will be the “death of conservative talk” in Florida, exposing speakers and stations to lawsuits, and that it “finishes off confidential informants.” 

“We will change our conservative programming, and announcers will quit,” Schwartzel wrote. “The devastation will be severe and swift. Republicans will lose one of their most prominent platforms to reach their base forever.”

Responding to backlash from conservatives, Andrade told the Miami Herald that he plans to make changes to the bill. The lawmaker did not elaborate, however, when Courthouse News asked what alterations are in the works.

The reactions from political allies of the bills’ sponsors point to its danger, said attorney Jim Lake, who defends defamation cases at Thomas & LoCicero. The firm with offices in Tampa and South Florida has represented Courthouse News in matters related to press access in the Sunshine State. 

“I think it’s a recognition that all speakers are going to be in jeopardy,” Lake told Courthouse News. 

“I’ve voted Republican a lot in my life — I understand the conservative point of view — but I also am concerned about anybody’s speech being interfered with,” Lake continued. “I think any time we’re talking about constitutional rights, lawmakers should hesitate to be imposing rules that could interfere with those. And that’s my concern here for any speaker, conservative or liberal.”


The bill would tilt the standards in favor of the plaintiffs in defamation cases, Lake said, including by allowing people to sue anywhere in the state over a statement that’s made on the internet. 

“Either bill would harm speakers, would change the law in a way that would discourage freedom of speech — that would interfere with people exercising their free speech rights,” he said. 

Lake’s colleague Carol LoCicero, joined by other attorneys and free press advocates, testified at a hearing in front of the legislative subcommittee that ultimately voted in favor of the bill, clearing its first barrier. 

Bobby Block, executive director of the Florida First Amendment Foundation, said the legislation “weaponizes defamation law to the point that it represents a death knell for American traditions of free speech.” 

“We think the overall bill is really an attack on all speech — not just media, but citizens as well,” said Samuel Morley, general counsel for the Florida Press Association. Florida’s Better Business Bureau and other nonpress agencies have also said they feel threatened by the bill.

Meanwhile, one Republican state lawmaker, Representative Mike Beltran, was explicit in his hope that the bill will provide a chance to revisit Supreme Court precedent. 

“Maybe this bill will be the occasion for New York Times v. Sullivan to be revisited or overruled or narrowed,” said state Rep. Mike Beltran, a Republican, shortly before voting in favor of the bill.

Andrade isn’t going quite that far, but he called Sullivan an instance of “policymaking from the bench” that went too far. He contends that Florida’s anti-SLAPP law — short for Strategic Lawsuits Against Public Participation — already protects publications from being sued out of existence. 

“It would be presumptuous of me to say that this would ever set up a situation where Sullivan can get overturned,” he told Courthouse News. “That being said, the state should have the ability to set its own tort standards and all torts, including defamation.”

In the event of a Supreme Court challenge, at least two justices have signaled the potential for significant changes. 

Justice Clarence Thomas went after the malice standard in 2019, concurring with an opinion that denied a writ of certiorari to Bill Cosby rape accuser Kathrine McKee. “If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we,” Thomas wrote

Two years later he found an ally in Gorsuch. Responding to an order from the court that turned down a defamation case brought by the son of a former Albanian president, the pair of judges penned dissenting opinions that urged reconsideration of the standard.

“Public figure or private, lies impose real harm,” Thomas wrote. “Instead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires,” Thomas said.  

Gorsuch meanwhile suggested the Sullivan standard is dated in a changing media landscape. 

“Thanks to revolutions in technology, today virtually anyone in this country can publish virtually anything for immediate consumption virtually anywhere in the world,” Gorsuch wrote. 

Andrade also pointed to the more liberal Justice Elena Kagan, who wrote a 1993 academic paper, while still an assistant law professor at the University of Chicago, asking whether the actual malice rule goes too far.

Rolling back Sullivan is a longtime goal for Governor DeSantis, who in February held a roundtable talk to drum up support for quashing the protections, framed as a David-versus-Goliath fight. 

“We’ve seen over the last generation legacy media outlets increasingly divorce themselves from the truth and instead try to elevate preferred narratives and partisan activism over reporting the facts,” DeSantis said. “When the media attacks me, I have a platform to fight back. When they attack everyday citizens, these individuals don’t have the adequate recourses to fight back. In Florida, we want to stand up for the little guy against these massive media conglomerates.”

The Senate version of the bill, SB 1220, is expected to be discussed on Wednesday at a committee hearing.

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Categories / Civil Rights, Government, Law, Media, Politics

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