RCFP analyzes Florida legislation aimed at revisiting defamation law
I. Introduction and Executive Summary
The Florida House and Senate both recently introduced bills that would, if passed and upheld by the courts, collide with the U.S. Supreme Court’s long-established precedent recognizing First Amendment limits on defamation law. Efforts to reform defamation law are not new, but the Florida proposals radically differ from previous proposals in their breadth and, as a result, their potential impact on journalism in the state. If passed, these proposals would make reporting news and publishing commentary in Florida much less protected from meritless defamation suits. Because they depart significantly from established Supreme Court precedent and the defamation laws of other states, these proposals might also make Florida a destination for defamation plaintiffs looking for a friendly forum. If litigation tourism were to develop, it could burden Florida state courts and harm the news media, though due process protections for out-of-state defendants may continue to provide shelter from suit.
For instance, both versions would abrogate Florida’s reporter’s privilege for defamation claims. (The Senate version does so for “related” claims, too.) They would also make it easier to sue for defamation when challenging statements by confidential or unknown sources. The Senate bill lowers the threshold of proof that a public figure plaintiff must show when challenging statements by anonymous sources, from knowledge that something was false or reckless disregard of that possibility — the Supreme Court’s “actual malice” test established in New York Times v. Sullivan — to negligence, which only requires a plaintiff to show that the defendant acted unreasonably. (The House bill does this for any plaintiff.) The bills also designate certain categories of people who cannot be considered public figures and contexts where actual malice can be inferred. Both bills would neuter Florida’s anti-SLAPP law.
The House bill has a section providing that allegations that the “plaintiff has discriminated against [someone based on] race, sex, sexual orientation, or gender identity” constitute defamation per se, meaning the plaintiff doesn’t need to show damage to reputation. The same section would also bar defendants from using a plaintiff’s affiliation with religious or scientific beliefs as proof that an allegation of discrimination based on sexual orientation or gender identity is true. The bill entitles plaintiffs who win suits under this section to at least $35,000 in damages, in addition to other fee awards that might apply.
In the special analysis below, we first highlight the key provisions present in both bills, and then describe the provisions that the more expansive House bill includes.
II. Provisions in Both the Senate and House Versions
A. Abrogating Florida’s reporter’s privilege for defamation claims, HB 991 § 1 / SB 1220 § 1
Florida has statutory protections for journalists to ensure that they are not forced to hand over information obtained as a part of their newsgathering to courts or law enforcement without very good reason (more on that law here). Both HB 991 and SB 1220 would create an exception to that statute for defamation claims, which otherwise covers all kinds of civil and criminal cases. In practice, this means that journalists would be protected from revealing information obtained while gathering the news, including the identities of sources, except if sued for defamation. SB 1220 would apply this exception to actions “related” to defamation, too. Forty-eight states and the District of Columbia have recognized some kind of reporter’s privilege (for details on the scope of each state’s privilege, see the Reporters Committee’s Reporter’s Privilege Compendium), and the Department of Justice recently implemented regulations restricting the federal government’s ability to seek information from journalists. If passed, Florida would become one of the only states to adopt a categorical carveout by statute for defamation suits. While some courts have refused to apply the privilege in defamation cases where the Sullivan actual malice standard applies since showing that the defendant knew or should have known that the information was false depends on the kind and quality of information she received from her source, the Florida bill would automatically strip away a Florida journalist’s right to protect source confidentiality in all libel cases. Similar limitations on the privilege sometimes apply when a defendant relies on an anonymous source; some rulings have even held that, when a journalist invokes the privilege and refuses to identify a confidential source, juries are permitted to infer that no source exists. This bill, however, would require a Florida journalist to disclose a confidential source regardless of whether they have other sources or information to demonstrate the truth of an alleged libelous statement.
B. Defamation liability for editing, HB 991 § 2; SB 1220 §§ 2 & 3
HB 991 provides that “[e]diting any form of media so that it attributes something false or leads a reasonable viewer to believe something false about a plaintiff may give rise to a defamation claim or privacy tort.” The Senate’s version of the bill likewise makes clear that editorial decisions can be a basis for defamation liability, allowing liability for the “publication of an altered or unaltered photograph, video, or audio recording.”
Florida law recognizes a cause of action for defamation by implication, which allows plaintiffs to challenge statements that, while not false per se, create false impressions. Jews For Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1108 (Fla. 2008). Truth is still a defense against these claims, but the defendant must show that the false impression created by the statement, not the statement itself, was true. Id. at 1108 n.13. The Supreme Court has made clear that “[m]inor inaccuracies do not amount to falsity” and statements are only considered false if they “would have a different effect on the mind of the reader from that which the pleaded truth would have produced.” Masson v. New Yorker Mag., Inc., 501 U.S. 496, 517 (1991) (quoting R. Sack, Libel, Slander, and Related Problems 138 (1980)). In cases challenging statements about public figures, intentionally “altering” the statements of another does not by itself satisfy the Sullivan actual malice test (i.e., it does not establish knowledge of falsity or reckless disregard for that possibility) unless the editing or alterations resulted in a “material change” in the meaning conveyed by the statement. Id.
C. Special rules for public figures, HB 991 §§ 5, 8 / SB 1220 §§ 5, 8
Under the constitutional framework established by the Supreme Court, certain kinds of public figures are so famous and widely known that, to make out a claim of defamation, they must meet the actual malice standard, as it was established by the Supreme Court in Sullivan. This is true even when the statement at issue does not relate to their public status. Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974). Former U.S. presidents, for instance, might be considered public figures in all contexts, meaning under the Supreme Court’s framework, they must satisfy this high bar even when challenging as defamatory a statement about their personal lives.
These bills would change that. They would lower the standard for public figures claiming that a statement about them unrelated to their public status defamed them. This might mean that a famous sports star could sue a newspaper for its reporting on allegations of sexual abuse and would only have to show that the newspaper did not act “reasonably,” not that it knew of or recklessly disregarded the possibility that the allegations were false. (Note that the House bill does not make explicit that a “reasonable person” standard would apply here; it just says that the actual malice standard would not apply. The Senate bill explicitly applies the reasonable person test.) The standard proposed in the bill would thereby eliminate a First Amendment-derived standard intended to encourage and facilitate debate over matters of public concern.
According to the Supreme Court, there is a second and more limited category of public figures: Those who “voluntarily interject” themselves “into a particular public controversy” and are therefore considered public figures “for a limited range of issues.” Gertz, 418 U.S. at 351. To determine whether someone satisfies this test, courts look to facts and context. But both the House and Senate bills categorically provide that, regardless of context, certain people will not be considered public figures (meaning the higher Sullivan standard will not apply) if their fame or notoriety comes from:
(1) defending themselves publicly against accusations;
(2) granting an interview on a specific topic;
(3) public employment other than elected office or official appointment; or
(4) a video, image, or statement uploaded on the internet that has reached a broad audience.
This might mean that internet influencers and people who choose to speak out on a particular issue in a television interview can skirt actual malice scrutiny, even when they have chosen to put themselves up for public scrutiny and have access to the “effective opportunities for rebuttal” that the Supreme Court has said justifies the differential treatment between public and private figures. Gertz, 418 U.S. at 344. In addition, state-defined categorical limitations on who can be considered a “public figure” for actual malice purposes likely violate the First Amendment, according to Supreme Court precedent. In Rosenblatt v. Baer, 383 U.S. 75, 84 (1966), the Supreme Court rejected the idea that state law standards could define the category of “public officials,” explaining that state law cannot govern because “the constitutional limits of free expression in the Nation [cannot] vary with state lines.” The proposed bill would thereby discourage speakers from engaging in the full and free exercise of their First Amendment rights.
D. Lists contexts where actual malice can be inferred, HB 991 § 6 / SB 1220 § 6
The Supreme Court has made clear that the actual malice inquiry “is a subjective one.” Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989). It requires clear and convincing evidence that the defendant actually had a “high degree of awareness of their probable falsity” when making allegedly defamatory statements. Garrison v. Louisiana, 379 U.S. 64, 74 (1964).
HB 991 and SB 1220 treat the actual malice framework as an objective one. Under both bills, actual malice can be inferred when the statement is:
(1) Imagined or fabricated by the defendant or based on an “unverified anonymous report”;
(2) Highly improbable; or
(3) Made by an informant and there are “obvious reasons” to doubt its reliability, either because it is highly improbable or contradicted by evidence that could have been uncovered by a “reasonable investigation.”
All of these conditions (arguably, save elements of the first) involve an objective analysis, not an inquiry into the state of mind of the defendant, as the Supreme Court has said is required when determining actual malice. Harte-Hanks Commc’ns, Inc., 491 U.S. at 688.
HB 991 provides that actual malice may be inferred where “the defendant willfully failed to validate, corroborate, or otherwise verify the defamatory allegation.” This essentially creates a duty to fact-check all published statements and would burden legitimate commentary on current events and political speech. Faced with the prospect of liability, journalists may opt not to report on issues that, by their very nature, are challenging to verify with complete confidence (sexual misconduct and national security controversies, for instance). This provision also directly contradicts the Supreme Court’s decision in Harte-Hanks, which held that “failure to investigate will not alone support a finding of actual malice.” 491 U.S. at 692; St. Amant v. Thompson, 390 U.S. 727, 733 (1968) (same). (The Senate version does not have this provision.)
E. Lower standards for statements by anonymous or unidentified sources, HB 991 § 7 / SB 1220 § 7
Under the House bill, a statement by an anonymous source is presumed to be false in a defamation case. This provision contradicts well-established Supreme Court precedent, which places the burden on public and private figure plaintiffs in all defamation cases to prove falsity, at least when the issue is of public concern. See Garrison, 379 U.S. at 74 (public figures); Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776–77 (1986) (private figures). The bill would thus adopt the more plaintiff-friendly British approach to defamation, where the burden is on the defendant to prove truth. (The Senate bill does not create this presumption of falsity.)
Truth is one of the main defenses against defamation claims, but the requirement that defendants present evidence of a statement’s truth in contexts involving anonymous sources presents particular concerns for journalists. Journalists rely on anonymous sources often, especially in cases involving sensitive matters such as national security, reporting on law enforcement, or corporate whistleblowers. Though most journalistic standards favor named sources over anonymous ones, sometimes being named in a story means risking a job, legal liability, or worse. Some of the most impactful pieces of journalism in history have involved anonymous sources. The stories about Watergate, for instance, relied on conversations with “Deep Throat,” an anonymous source whose identity was not revealed until decades after the stories broke.
Both the House and Senate versions of the bill lower the standard for public figure plaintiffs challenging statements made by unidentified sources to negligence, meaning they need to show only that the statement was unreasonable. (Under current law, they would need to show that the defendant made the statement knowing that it was false or with reckless disregard for that possibility.) See Gertz, 418 U.S. at 351.
F. Weakening anti-SLAPP protections, HB 991 § 4 / SB 1220 § 9
Under the House bill, a defamation plaintiff can get attorney’s fees and costs awarded if they prevail in the case or if they defeat a defendant’s motion to dismiss under the state’s anti-SLAPP laws. Such laws are intended to allow for early dismissal of strategic lawsuits against public participation (SLAPPs), a term for meritless claims that chill speech with expensive legal proceedings. The Senate bill does not have these fee-shifting provisions, but it does bar fee recovery for defendants under the anti-SLAPP statute unless they show that the allegedly defamatory statement was not negligently made. This means that defendants will not be able to recover if a statement was negligently made, even if the plaintiff fell short of establishing actual malice when applicable. Both proposals are out of step with the model anti-SLAPP legislation in the U.S., the Uniform Public Expression Protection Act (UPEPA), which mandates that courts award fees to defendants who win an anti-SLAPP motion.
G. Expansion of potential venues for defamation actions, HB 991 § 2 / SB 1220 § 4
In law, “venue” deals with where a lawsuit may be filed. Venue rules are prescribed by statute, and most states, including Florida, have default venue statutes, which generally limit lawsuits to counties where the defendant resides (or is headquartered, if the defendant is a corporation), where the cause of action occurred, or where the property subject to litigation is located. HB 991 overrides Florida’s default venue statute and allows a plaintiff to bring a defamation lawsuit in (i) any county in Florida where the defamatory materials were accessed if the defamation lawsuit is “based on material published through the radio or television”; or in any county in the state if the defamation lawsuit is “based on material published through the [i]nternet.” Similarly, SB 1220 states that venue is proper in “any county where the defamatory material is accessed by a third party.”
As a result, both HB 991 and SB 1220 open the door to out-of-state actors engaging in litigation tourism by forum shopping in defamation lawsuits. Plaintiffs may decide to file their lawsuit in a county that they think will view their claim favorably, a strategy that, if successful, might shape defamation law precedent within the state in a way that broadens the scope of defamation liability because a disproportionate number of cases will be heard in plaintiff-friendly forums. But constitutional due process standards require a defendant to have sufficient contacts with a state to be sued. This precedent should certainly protect smaller out-of-state defendants. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985). Larger out-of-staters with only passing business in the jurisdiction will also be able to argue that it would be unfair to drag them into Florida’s courts. But national news outlets with reporters frequently on the ground in the state may have a harder time avoiding suit if the claim relates to the organization’s contacts with Florida. Walden v. Fiore, 571 U.S. 277, 285–86 (2014). Simply being able to access a website on the internet in a jurisdiction is not enough contact to be vulnerable to suit there.
III. Provisions Unique to the House Bill
A. Defines “defamation or privacy tort” broadly, HB 991 § 2
HB 991 defines “defamation or privacy tort” to include all torts that can arise from publication: “libel, slander, false light, invasion of privacy, or any other tort founded upon any single publication.” This sweeping definition may give defamation plaintiffs a route around the state’s statutory notice requirement, which mandates that, “at least 5 days before instituting” a lawsuit against a publisher for libel or slander, the plaintiff must “serve notice in writing on the defendant” identifying the allegedly defamatory statement. Instead of styling their suit as a claim for libel or slander (which these notice rules apply to), a potential plaintiff can challenge the same conduct under a false light theory and skirt these long-standing requirements under Florida law. This could also influence how the statute of limitations applies. Under current law, if a plaintiff brings a defamation claim within the two-year statute of limitations, but fails to notify the defendant, that claim is time-barred. By expanding the definition in this manner, other claims in the same suit would likely survive.
B. Provides that allegations that the “plaintiff has discriminated against another person or group because of their race, sex, sexual orientation, or gender identity” constitutes defamation per se, HB 991 § 6
Functionally, this provision would mean that when a plaintiff brings a defamation action against a defendant for allegations of discrimination based on race, sex, sexual orientation, or gender identity, the plaintiff does not need to show that those allegations damaged her reputation (in other words, it is per se defamatory). The bill also bars defendants from using the plaintiff’s affiliation with a set of religious or scientific beliefs as proof that an allegation of discrimination based on sexual orientation or gender identity was true. For instance, a defendant cannot rely on the fact that the plaintiff is associated with a religious denomination that does not support same-sex marriage to prove the truth of her claim that the plaintiff discriminated against LGBTQ people. This provision also has a high statutory damages award: at least $35,000 for prevailing plaintiffs, in addition to all other damages the law provides.
C. Creates a statutory false light tort, HB 991 § 9
HB 991 creates a cause of action for false light, which overlaps substantially with defamation. The difference between the two torts lies in the nature of the interests sought to be protected. For the tort of false light, courts look to whether the statement is “highly offensive to a reasonable person.” For the tort of defamation, courts examine whether a statement harms someone’s reputation. In other words, the tort of false light seeks to protect the internal impact of a statement to a plaintiff, whereas defamation focuses on its external effect.
Notably, the Florida Supreme Court refused to recognize a false light tort in 2008, reasoning that the benefit of recognizing such a tort, “which only offers a distinct remedy in relatively few unique situations, is outweighed by the danger of unreasonably impeding constitutionally protected speech.” Jews For Jesus, Inc., 997 So. at 1114. Very few false light claims are brought on their own without a related claim for defamation. As a result, courts have not had the opportunity to flesh out fully the relationship between the tort and the First Amendment that they have in the defamation context. In part because of this, courts in other states have also refused to recognize the tort of false light, reasoning that it does not have the “restrictions to protect the interest in a free press and discourage trivial litigation” that defamation does, Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 236 (Minn. 1998), and as a result, risks running afoul of the First Amendment. See Cain v. Hearst Corp., 878 S.W.2d 577, 581–82 (Tex. 1994); Denver Pub. Co. v. Bueno, 54 P.3d 893, 902 (Colo. 2002).
The false light cause of action that HB 991 proposes would incorporate the standards in the bill for defamation “to whatever extent necessary,” meaning the bill’s provisions about who can be considered a public figure and where a plaintiff can sue, for instance, apply to false light claims as well. Though HB 991 does not set forth a statute of limitations for claims under its proposed false light tort, Florida courts have previously held that the same two-year statute of limitations that applies in defamation cases should apply to false light claims, too. See Gannett Co. v. Anderson, 947 So. 2d 1, 7 (Fla. Dist. Ct. App. 2006). Otherwise, claims under the cause of action for false light might be used in “an attempt to circumvent the shorter statute of limitations for defamation.” Jews For Jesus, Inc., 997 So. at 1114.
*Emily Hockett is the Reporters Committee’s Technology and Press Freedom Project Fellow. Josh Lustig is a Reporters Committee legal extern who is currently studying at Northwestern University Pritzker School of Law.