Florida Gov. Ron DeSantis and his state legislative allies are considering legislation that could undo legal protections that journalists have relied upon for decades to report on public officials and others.
According to the Tallahassee Democrat, the bill sponsored by Rep. Alex Andrade, R-Pensacola, 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.”
DeSantis has said large media companies “should be held accountable for actionable lies.” Andrade’s bill focuses on defamation law in Florida without directly citing the 1964 U.S. Supreme Court decision in New York Times Co. v. Sullivan. That’s a change from an earlier bill draft, but conservative critics of the news media have made no secret of their wish to find a way to overturn the landmark case.
Journalism groups have expressed deep concerns, stating that much of the reporting on Watergate, the Harvey Weinstein sex-assault cases and many other important stories likely could not have been produced under such laws.
“I believe it will introduce a whole new Wild West of litigation,” First Amendment Foundation executive director Bobby Block told the Tallahassee Democrat. “This is about intimidating free speech, chilling free speech and silencing critics.”
— Allow plaintiffs who sue news outlets for defamation to collect attorneys fees.
— Add a provision to state law specifying that comments made by anonymous sources are presumed false for the purposes of defamation lawsuits.
— Lower the legal threshold for a “public figure” to successfully sue for defamation.
— Repeal the “journalist’s privilege” section of state law, which protects journalists from being compelled to do things like reveal the identity of sources in court, for defamation lawsuits.
The essence of Times v. Sullivan is that the Supreme Court decided it’s so important to American democracy to have scrutiny of public officials and public figures that journalists have a right to be wrong sometimes without fear of litigation. To win libel or defamation lawsuits, even if mistakes are made, public officials and public figures must show the news outlet acted with “actual malice,” meaning that the outlet either knew what it reported was wrong or was so reckless that it should have known — hence the term “reckless disregard of the truth.”
Over the years the courts have refined the key concepts in Times v. Sullivan, including what defines a public official or public figure. If the reporting isn’t connected to the reason that person is in the public eye, the traditional lower standard applies to winning a libel or defamation suit — meaning that the reporting was incorrect and the person was damaged as a result.
The Sullivan case wasn’t based on a news story. It was based on an advertisement seeking political donations for the civil rights movement that protested the treatment of the Rev. Dr. Martin Luther King Jr. by Alabama law enforcement. L. B. Sullivan, an elected city commissioner in Montgomery, Ala., whose duties included supervision of the local police, sued. There were some factual mistakes in the ad, such as the number of times King had been arrested in Alabama.
Under Alabama law, Sullivan needed only to prove that there were mistakes and that they likely harmed his reputation. “A jury awarded him $500,000 in damages, an enormous sum at the time,” according to the First Amendment Encyclopedia. The Supreme Court reversed the decision and established the “actual malice” standard.
Should the Florida bill become law, there will doubtless be legal challenges to its constitutionality based on whether it contradicts settled law. Meanwhile, Times v. Sullivan may not stay settled, as some conservative members of the U.S. Supreme Court, Neil Gorsuch and Clarence Thomas, have indicated a willingness to revisit the case.
Conservative critics who see overturning Sullivan as a way to check what they view as an antagonistic, liberal media might come to regret what they seek. Fox News, in defending itself against Dominion Voting Systems in a massive defamation case, is largely relying upon Times v. Sullivan. Fox claims it was within its First Amendment rights in reporting and commenting on the false claims that Dominion software in voting machines stole votes from Donald Trump and favored Joe Biden in the 2020 presidential election.
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