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For second straight year, Florida lawmakers consider bills targeting defamation law

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  1. Libel and Privacy
Several provisions in the Florida bills would collide with the First Amendment.
An American flag flies over the Florida Capitol, Tuesday April 23, 2019 in Tallahassee, Fla. The Florida Legislature is in its final two weeks of session. (AP Photo/Phil Sears)
The Florida Capitol (AP Photo/Phil Sears)

Update: Florida lawmakers failed to pass the defamation bills before the end of the 2024 legislative session.

I. Introduction and Executive Summary

Last year, the Florida Legislature took up several bills that would have transformed the defamation landscape in the state. Those proposals, which ultimately failed to pass, would have violated long-established U.S. Supreme Court precedent and reduced protections for news organizations against meritless defamation suits. (For a breakdown of those bills and their provisions, please see our special analysis of them from last year.)

This year, the Florida Legislature has once again decided to take up similar legislation — and it is not much better. Several provisions would collide with the First Amendment. For instance, one provision would create a presumption of “actual malice” (the higher fault standard that public figures and public officials must meet) when a publisher relies on an anonymous source. Other provisions would make defending defamation lawsuits in the state more challenging and expensive by allowing parties to demand early-stage hearings on issues at the heart of their case. These bills would weaken existing protections in Florida for defamation defendants, like the fair report privilege and the state’s anti-SLAPP law, and would make Florida a destination for libel tourism for those looking to file suit in a state with plaintiff-friendly laws.

As of this writing, there are two competing bills that the legislature is considering: one in the House (H.B. 757) and one in the Senate (S.B. 1780). The House bill was voted out of the Judiciary Committee on Feb. 21, 2024, and was amended to reduce concerns about forum shopping within the state and other issues. The Senate bill is currently in the Fiscal Policy Committee. In this special analysis, we highlight and explain all the provisions in both bills and the impact they would have on the news media.

II. Provisions in the Bills

1. Takedown amendments to retraction provision, § 1

The first section of both bills would amend existing Florida law regarding retraction and correction of published false statements. Existing law provides that, when a statement was “published in good faith” and the product of a “reasonable … honest mistake,” and was subsequently retracted, defamation plaintiffs are only permitted to recover “actual damages,” which compensate for the harm that they actually suffered. This means that they are barred from recoveringpunitive damages,” often higher dollar awards meant to punish defendants for particularly egregious behavior. The retraction law encourages publishers to retract or correct false statements and discourages plaintiffs from attempting to profit from honest mistakes.

The Senate bill eliminates this damage limitation for internet publications unless the publisher “permanently remove[s]” the publication within 10 days of receiving notice that it contains a false statement (as opposed to permitting a retraction or clarification). The provision would require removal of even long articles with one very minor mistaken fact. This would be burdensome for publishers and, because it applies to even small mistakes, it is over-inclusive. It would also present practical problems. Existing law still requires that publishers correct false statements in order to take advantage of the damages limitation, but how would a publisher make such a correction and, simultaneously, take down the article? It is also not possible for publishers to remove content about the publication posted to third-party sites such as social media platforms. And what makes this provision additionally troubling is that it speaks to falsity, not false and defamatory speech, so it could lead publishers concerned about damages in a potential defamation suit to take down fully protected, non-defamatory speech containing only immaterial falsehoods.

The House bill gives publishers the option to either permanently remove the publication from the internet within 10 days or “retract[] or correct” it within 10 days and include a conspicuous notation of the retraction or correction “at the beginning of the article, in type font as large or larger than the article’s” explaining “what was retracted or corrected.” This language avoids the contradicting obligations that the Senate bill would create.

2. Reduced liability protections for internet publications, § 2

Section 2 of the Senate bill would create new incentives for individuals to bring defamation claims based on internet postings. The provision would apply when a radio or television station, or newspaper, publishes a “defamatory” statement online without knowledge of its falsity, but then receives notice that the statement has been found in a judicial proceeding to be false, or receives notice “of facts that would cause a reasonable person to conclude that such statement was false.” In such circumstances, if the news organization does not take “reasonable steps to permanently remove the statement and any related report” from the internet, two things would happen.

First, “the continued appearance of such statement” online would constitute a “new publication for purpose of the statute of limitations.” The bill would therefore override Florida’s single-publication rule, which starts the clock on the statute of limitations in defamation cases at the time of the initial publication, as well as effectively eliminate the statute of limitations in such cases.

Second, the provision would bar publishers who fail to remove the posting from taking advantage of the fair report privilege once they receive the requisite notice. The fair report privilege protects fair and accurate reporting on official public documents, including judicial records, even if the information itself is false and defamatory. Eliminating fair report protections under these circumstances would encourage suits by people acquitted of crimes over articles about their initial arrests. So too with old articles available online about convictions that were eventually overturned.

(Note that the House bill contains the same provision, but allows publishers to “correct the statement” instead of removing it.)

3. Venue provisions encourage forum shopping, § 3

“Venue” controls where a lawsuit may be filed, and venue rules are adopted by each state. Florida, like most other states, has adefault venue” statute. That law allows people bringing lawsuits in the state to file suit in the county where a defendant lives (or is headquartered, if the defendant is an entity), where the event that triggered the lawsuit took place, or where property that is the subject of litigation is located.

Section three of the Senate bill would override that default venue statute in defamation cases, making venue possible in virtually any county within Florida. For example, in the event of an allegedly defamatory statement made on television or radio, venue is proper in “any county in which the material was accessed.” And in the event of a defamatory statement made on the internet, “venue is proper in any county in the state.” As a result, the Senate bill would encourage defamation plaintiffs to “shop” for jurisdictions in the state for the one they expect will enable the most favorable outcome. It could also significantly increase the burden on defendants. For instance, a Key West news organization may be forced to drive 13 hours from Key West to Pensacola to defend a defamation suit based on an internet posting.

Constitutional due process requires a defendant to have “minimum contacts” with Florida to be sued in Florida, Calder v. Jones, 465 U.S. 783, 788 (1984), which means that regional publications with only passing business in the state may be able to argue that it would not be fair to drag them into court there. But national news outlets with reporters on the ground in Florida would have a harder time arguing that they cannot be subject to suit in the state, particularly if the suit relates to the organization’s contacts with Florida. Walden v. Fiore, 571 U.S. 277, 285–86 (2014). And, again, section three of the Senate bill forces defendants with sufficient minimum contacts to defend lawsuits in any Floridian county. (Note that there is no caselaw on the constitutionality of a state venue statute operating in this manner. See generally Peter L. Markowitz and Lindsay C. Nash, Constitutional Venue, 66 Fla. L. Rev. 1153 (2014) (exploring constitutional considerations with unfair venue provisions).)

Though the House bill has a venue section that modifies the default venue statute, it limits this venue provision to counties where “a plaintiff reasonably suffered damages” from the broadcast or publication and bars plaintiffs from filing suit in a county “that does not possess a reasonable connection to the material circumstances related to the cause of action.” It also provides for attorney’s fees and damages for a defendant if “plaintiff’s choice of venue is determined to possess no reasonable connection to the material circumstances related to the cause of action” or the venue has been “sought for the purposes of harassment.” As a result, the forum shopping concerns associated with the House bill are less significant than the Senate bill.

4. Veracity hearings, § 4

Both bills would also allow parties in defamation cases to request a “veracity hearing” whereby a judge would make a determination about whether a statement at issue in the case is a statement of fact or one of opinion, and, if the judge finds that the statement is one of fact, whether the fact is true or false. Parties can request this hearing by filing a motion with the court and, unless the parties agree to a different schedule, the court would have to hold the hearing within two months of the motion’s filing. (Note that the Senate bill only allows for veracity hearings in suits against news organizations, including newspapers, broadcasters, or anyone that works for an “entity that routinely publishes news or information of a public character or interest or value.”)

This new procedure poses several concerns.

First, it could improperly lead to judicial fact-finding. The question of whether a statement is fact or opinion is one of law, but whether a statement is true or false is one of fact. In general, judges are meant to decide questions of law, but questions of fact are for juries to determine.

Additionally, allowing plaintiffs to request a veracity hearing on whether a statement is one of fact or opinion and whether it is true or false has the potential to limit a defendant’s ability to engage in discovery. It may be challenging for defendants to gather information from the plaintiff or third-parties in the 60 days between the filing of a motion and the hearing itself, so the judge could be making the finding of falsity without a fully developed record. (The House bill mitigates this concern slightly by only allowing a court to grant a motion for a veracity hearing if the movant has shown that “there is no genuine dispute as to any material fact regarding the subject of the motion.”)

Given the compressed timeframe, these veracity hearings could also increase litigation costs early in the case. And both bills would require the party that loses a veracity hearing to pay the other side’s attorney’s fees and costs associated with the hearing. Further, the veracity hearings can take place before defendants have a chance to file an anti-SLAPP motion to dismiss, on the basis that the lawsuit is meritless and appears to be a bad-faith attempt to drain the pockets of defendants and chill criticism.

5. Presumption of actual malice for statements in reporting relying on anonymous sources, § 5

Section five of both bills creates a rebuttable presumption of actual malice when a publisher “relied on an anonymous source” for a false statement it published. That presumption seems set up to challenge established Supreme Court precedent placing the burden on public figure and public official plaintiffs to prove a challenged statement was made with actual malice in order to prevail. See St. Amant v. Thompson, 390 U.S. 727, 730 (1968); Anderson v. Liberty Lobby, 477 U.S. 242, 255-57 (1986) (finding, to defeat a Rule 56 motion for summary judgment, that evidence presented by public figure and public official plaintiffs must be sufficient for jury to find actual malice by clear and convincing evidence).

Further, presuming actual malice where a defendant relied on an anonymous source would require defendants to present affirmative evidence about what they knew — or didn’t know — at the time they published the statement at issue, and this would likely require divulging information about anonymous sources. (The bill also does not distinguish between “anonymous” sources, where the source’s identity is unknown to the reporter, and “confidential” sources, where the identity is known but not disclosed.)

As a practical matter, the presumption would create a disincentive for journalists to use confidential or anonymous sources, even when the information they provide can be corroborated through on-the-record reporting. That could impair public interest reporting, especially in cases involving sensitive matters such as national security, law enforcement, or corporate wrongdoing. Indeed, some of the most impactful pieces of journalism have involved confidential sources, such as Watergate’s “Deep Throat.”

Florida law recognizes the importance of journalists’ confidential and anonymous sources and protects journalists from disclosing “information, including the identity of any source,” except under a narrow set of circumstances. § 90.5015. The proposed bills would undermine that protection and force media defendants to choose between divulging their sources or refraining from publishing a piece.

6. False light tort for artificial intelligence, § 6

Section six of both bills would create a cause of action for the use of artificial intelligence to place someone in a “false light.” To determine whether something qualifies as “false light,” courts look to whether a statement is “highly offensive to a reasonable person.” The false light tort overlaps substantially with the tort of defamation, which, in Florida, includes defamation by implication. The chief difference is in the “nature of the interests” each tort seeks to protect.  Jews For Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1108 (Fla. 2008). Defamation applies to cases involving harm to a person’s reputation in the community, whereas false light is an invasion of privacy tort.

This overlap prompted the Florida Supreme Court to refuse to recognize false light causes of action, since “conduct that defames will often be highly offensive to a reasonable person, just as conduct that is highly offensive will often result in injury to one’s reputation.” Jews For Jesus, 997 So. 2d at 1109, 1113. A review of 600 false light cases throughout the country concluded that the tort of false light does not add “anything distinctive to the law,” J. Clark Kelso, False Light Privacy: A Requiem, 32 Santa Clara L. Rev. 783, 785 (1992), and the Florida Supreme Court confirmed that its “own review of cases in Florida reveals a similar conclusion,” Jews For Jesus, Inc., 997 So.2d at 1113. In other words, the tort of false light does not create remedies that do not already exist in claims based on defamation or defamation by implication.

The Florida Supreme Court and other courts around the country have also voiced concerns that First Amendment safeguards applicable to defamation cases may not be as clear in false light claims. Unlike defamation, which “has become subject to numerous restrictions to protect the interest in a free press,” Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 236 (Minn. 1998), courts have noted that the lack of such defined protections for false light “unacceptably increase[s] the tension that already exists between free speech constitutional guarantees and tort law,” Cain v. Hearst Corp., 878 S.W.2d 577, 579 (Tex. 1994). This lack of clarity opens the door for plaintiffs to get around the established defenses of defamation, and to bring similar claims in the relatively unprotected area of false light. See Denver Publ’g Co. v. Bueno, 54 P.3d 893, 894 (Colo. 2002). And while some courts will impose restrictions on false light claims similar to those in defamation claims, the imposition of those restrictions means “no useful purpose” would be served by recognizing the separate tort. Cain, 878 S.W.3d at 583; see generally Time, Inc. v. Hill, 385 U.S. 374, 387-88 (1967) (citing New York Times v. Sullivan, 376 U.S. 254 (1964), to require proof of knowing or reckless falsity for recovery under New York right to privacy law “to redress false reports of matters of public interest”).

In short, the Florida Supreme Court was right to recognize that a tort of false light is duplicative of existing remedies under defamation law, and its extension is likewise unnecessary here.

* Joe Wolf is a Reporters Committee extern currently studying at Northwestern University’s Pritzker School of Law.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

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