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.”
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