A Florida bill introduced last week would make it easier to successfully sue news media for defamation, with several provisions that defy landmark Supreme Court rulings on First Amendment rights.
The legislation, filed by Rep. Alex Andrade, comes weeks after Florida Gov. Ron DeSantis held a roundtable discussion on what he described as the impact of defamatory reporting by news media companies. During that discussion, DeSantis accused legacy news outlets of increasingly favoring “preferred narratives” over truth.
“We’ve seen countless examples in recent history of members of the journalism profession playing fast and loose with facts,” Andrade said in a phone call. “I don’t believe that journalists have more or special privilege to be protected against the harm that they cause when they act recklessly or negligently.”
His bill, HB 991, aims to limit the actual malice requirement that has traditionally allowed journalists some room for error so that they’re not pressured to self-censor while holding powerful people accountable. The term "actual malice" refers to the idea that someone acted on information they knew to be false, or with disregard for the accuracy of that information.
“I don’t think it’s surprising at all that in Florida we would adopt this piece of legislation,” said First Amendment expert Clay Calvert, a professor emeritus at the University of Florida Levin College of Law. “That’s because many conservatives don’t like the mainstream media, or what they perceive to be the liberal media.”
The most prominent recent defamation case accusing a news outlet of actual malice, however, involves conservative media. A court filing unsealed this month provided evidence that employees at Fox News knew the claims of fraud in the 2020 presidential election propagated by then-President Donald Trump and many of his Republican allies, including several Fox News personalities, were false.
Since the landmark New York Times Co. v. Sullivan ruling, public figures have had to prove actual malice — either knowledge of falsity or reckless disregard of the truth — to win cases of defamation.
If the bill passes, this legal standard would no longer apply in Florida whenever the allegedly defamatory statement does not relate to the reason for the plaintiff’s status as a public figure. The legislation also states those who gained fame outside of being an elected or appointed official would no longer be considered public figures.
Calvert said these provisions violate Supreme Court precedent on all-purpose public figures. Influential nonpolitical people such as celebrities have had to abide by the actual malice standard because they voluntarily put themselves in the spotlight and have greater media access to respond to allegations.
“It follows really in the footsteps of former President Donald Trump’s call during his campaign for 2016 to open up libel laws,” he said, “and that’s exactly what this piece of legislation does.”
The bill also allows for courts to infer actual malice in certain circumstances, such as when an allegation is “so inherently implausible that only a reckless person would have put it into circulation.”
“From my point of view, if you spend two years calling Republican politicians murderers for Covid-19 policy,” Andrade said, “I think that that’s so inherently plausible that a reckless person would be the only person that put that in circulation.”
Lili Levi, a professor of law at the University of Miami School of Law, said many of the legislation’s purported changes to the application of the actual malice standard have the potential to influence the way courts interpret what constitutes reckless disregard of the truth.
HB 991 also states that allegations of discrimination against another person on the basis of race, sex, sexual orientation or gender identity would count as defamation per se, meaning the plaintiff would not have to prove real injury to successfully sue for defamation — and win statutory damages of at least $35,000 in addition to other damages, according to the bill.
Any statement in the news from an anonymous source would be presumed false as well when faced with a defamation charge, in which case reporters would no longer have the legal right to keep their sources confidential.
“Think about being a national security reporter, and you have an anonymous source and you believe that the anonymous source is truthful. You’ve had a relationship with the source,” Levi said. “And you know if you rely on that anonymous source, then that statement, because the source is anonymous, is presumptively false. That’s a really striking part of the statute.”
Experts said they would not be surprised if the legislation passes into state law, but the bigger question is how it will hold up long term. The Supreme Court has turned away several recent cases that could have prompted a rollback of the actual malice standard, although Justices Clarence Thomas and Neil Gorsuch have expressed interest in reconsidering this precedent.
The bill also contains a severability clause that would ensure that, even if certain provisions are struck down by courts, the remaining provisions can remain in effect. That means that even if new rules around actual malice are found unconstitutional, cost-related provisions — such as paying $35,000 in statutory damages and compensating attorney fees to prevailing plaintiffs — would stay in place.
“I think that there is constitutional weakness in terms of the defamation standards that are adopted in the bill, but that doesn’t mean that the bill is not otherwise dangerous and will not otherwise have a chilling effect on on the press,” she said. “I particularly worry about underfunded press outlets and local press outlets.”