Down in Florida, things are not looking so sunny for proposals to radically change defamation law in the state. That follows substantial pushback from prominent conservative politicians and media outlets. The proposal in the Senate has been postponed from consideration twice, and the sponsor of the House proposal has indicated that he intends to amend it to remove some of the more controversial provisions but has not yet done so. And the clock is ticking. Florida’s state legislature is part-time, and this year’s regular session ends on May 5.
As we have made clear in this newsletter and in our special analysis of both the House and Senate proposals, we think these bills are dangerous. Many provisions are inconsistent with long-established Supreme Court precedent on defamation law and the bills would make it much easier for plaintiffs to bring meritless lawsuits against journalists in an effort to silence them.
When the bills were initially proposed, they seemed to have traction. Recently, however, conservative media outlets and Republican politicians have voiced concerns about the proposals. Late last month, U.S. Rep. Cory Mills (R-Fla.) wrote a letter to both houses of the legislature expressing his opposition to the proposals and calling them “unpatriotic” and “not representative of the free state of Florida.” As The New York Times recently reported, conservative talk show hosts and Fox News affiliates in Florida worry that, if passed, the legislation could put their stations out of business because of the liability it would create.
When asked about his thoughts on the bills in an interview with the Washington Examiner, former Vice President Mike Pence said he has “worked hard to preserve the freedom of the press to thrive in America” and thinks “any effort to intrude upon that would not be in the interest of the nation.” In the interview, Pence alluded to the tension between the Florida proposals and Supreme Court precedent, but told the Examiner, “I trust that the conservative majority on the Supreme Court of the United States will preserve our First Amendment.”
In an op-ed in The Wall Street Journal, former U.S. Attorney General William Barr also voiced his opposition to the Florida bills, without calling them out explicitly. “There are precious few conservative news outlets as it is,” he wrote. “Why make them more vulnerable to the multitude of left-wing plaintiffs’ lawyers?”
They are not wrong. These proposals put Florida at risk of becoming a destination for plaintiffs looking to bring defamation lawsuits against journalists. As we have discussed before, the proposals would alter the standards that apply in defamation cases based on the kind of claim and the kind of person making the claim, for instance, often in a way inconsistent with the Supreme Court’s First Amendment precedent.
The Florida proposals have been particularly controversial since they are expressly motivated by a desire to tee up a reconsideration of long-standing First Amendment limits on state defamation law. According to Paul Renner, speaker of the Florida House of Representatives, for instance, “the purpose of this bill is to be a test case for New York Times v. Sullivan,” the Supreme Court case that established some of the checks on defamation suits by powerful figures. Fortunately, however, the criticism of the bills appears to be having an effect.
We’ll keep you posted!
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.