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Orlando Sentinel

Florida defamation bill will chill free speech, prompt bogus lawsuits, critics say

By Skyler Swisher, Orlando Sentinel,


TALLAHASSEE — First Amendment advocates urged state lawmakers Tuesday to abandon their push to rewrite Florida’s defamation laws, calling it an unconstitutional effort that will unleash a torrent of lawsuits from powerful people seeking to silence criticism from the press and the public.

Despite those concerns, a House panel advanced the measure ( HB 991 ) in a 14-4 vote, supporting Gov. Ron DeSantis’ fight against what he calls “legacy media defamation practices.”

The proposal includes one-way attorney fees that will encourage libel lawsuits, drive up libel insurance rates for news media outlets and stifle public debate by subjecting everyone from conservative pundits to newspaper publishers to frivolous and costly libel lawsuits, critics said.

“HB 991 weaponizes defamation law to the point that it represents a death knell for American traditions of free speech,” said Bobby Block, executive director of Florida’s First Amendment Foundation. “It is the view of the First Amendment Foundation that if HB 991 becomes law, its provisions will be used to crush critics of government policies.”

Supporters said the legislation targets false information that destroys a person’s reputation and seeks to clarify ambiguous legal standards.

“What this bill will provide is opportunities for people who have been rightfully harmed by a false statement that hurt their reputation to seek justice and not have to spend egregiously enormous sums of money to seek justice,” said state Rep. Alex Andrade, R-Pensacola, the bill’s sponsor.

He added the bill should be titled “Journalism 101.”

The legislation proposes sweeping changes to Florida’s libel and defamation law. It presumes information from anonymous sources to be false and removes protections that allow journalists to shield the identity of sources if they are sued. It limits the definition of who would qualify as a public figure, making it easier for some people who become prominent to win a libel lawsuit.

The legislation deals with legal standards first outlined in the landmark 1964 New York Times v. Sullivan Supreme Court case, which created the “actual malice” threshold for libel lawsuits.

That case created a higher burden for public officials to win a libel case than ordinary people. Public officials must prove a statement was published with “actual knowledge that the statement is false or reckless disregard for the truth,” rather than just negligence. The court later extended that standard to public figures, which include celebrities and others who have achieved “pervasive fame or notoriety.”

Florida’s proposal violates the First Amendment of the U.S. Constitution and “sets troubling public policy” by challenging decades of case law, said Carol LoCicero, a Florida First Amendment lawyer and lead attorney for a media coalition that includes Tribune Publishing, which owns the Orlando Sentinel and the South Florida Sun Sentinel.

“It hurts every speaker,” she said. “It doesn’t just hurt what has been referred to as the legacy media. It hurts people from all points of view. It hurts individuals. Frankly, it will hurt politicians for office when they are campaigning and making statements about their opponents.”

The proposal limits the definition of a public figure to exclude people whose notoriety arises solely from defending themselves publicly against accusations; those who grant an interview on a specific topic; those in public employment other than elected office or appointment by an elected official; or who appear in a video, image or statement uploaded on the internet that reaches a broad audience.

It also expands the definition of actual malice, such as specifying that a statement violates the standard if it is “fabricated by the defendant, is the product of his or her imagination, or is based wholly on an unverified anonymous report.”

It would create a new “false light” provision that would allow for lawsuits if a publication puts a person in “a false light that would be highly offensive to a reasonable person” and the defendant “acted knowingly or in reckless disregard.” The Florida Supreme Court rejected false light in 2008 because it overlapped with defamation.

During the hearing, Rep. Mike Beltran, R-Riverview, said he disagrees with the “actual malice” standard established by the U.S. Supreme Court.

“It has no textual basis,” he said. “You don’t find that anywhere in the First Amendment ... It doesn’t say open season on public officials or public figures.”

Facing questions and criticism from opponents, Andrade said he thinks the bill would still allow Floridians to use the term “groomer” in a political discussion because he considers it an opinion rather than a statement of fact.

Conservatives have used that term to attack opponents of legislation seeking to limit classroom instruction on sexual orientation and gender identity. The term, often aimed at gay people, is defined as someone trying to lure children into their trust to exploit them.

“Calling someone a groomer, calling someone any derogatory name, in and of itself, is just you engaging in hyperbole and a statement of opinion,” he said.

State Rep. Toby Overdorf, R-Palm City, said he was subjected to a false attack from a local television reporter who was later revealed in an NPR/Floodlight investigation to be receiving money from a political consulting firm with ties to Big Sugar and Florida Power & Light.

“I had no recourse against this reporter. ... This bill gives an opportunity that I did not have four or five years ago to be able to bring that forward,” he said.

But Dick Batchelor, a former Democratic state representative from Orlando, told the committee he thinks the legislation goes against the Legislature’s past efforts to ensure openness and transparency in government and will have a chilling effect on the news media.

“I don’t know how a Florida Legislature can pass a bill that is in conflict with a landmark Supreme Court decision,” he said.

DeSantis’ office briefly considered a similar draft bill on the subject last year that was never filed, according to public records.

Among the stated objectives in a briefing document was to invite legal challenges “with the goal of restoring the original understanding of the First Amendment.” The briefing paper notes two justices have called for the court to reconsider its position on the Sullivan case.

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