Why principled conservatives should oppose Florida’s defamation bill
Seth Stern
March 8, 2023
Florida Gov. Ron DeSantis
Florida lawmakers have introduced legislation, with vocal support from Gov. Ron DeSantis, to make it easier for public figures to sue detractors for defamation. DeSantis, likely eyeing the presidential primaries, frames the proposal as an effort to fight back against misinformation from large left-leaning media conglomerates.
But disciplined conservatives thinking beyond 2024 should understand that expanding defamation liability would silence important voices across the political spectrum. It would cause the most harm not to mainstream media outlets that can afford lawyers but to independent news outlets and opinionated individuals, including conservatives, who cannot.
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Here’s why conservatives should oppose every provision of the Florida legislation, including both the House version and the slightly scaled back, but still highly dangerous, Senate version.
DeSantis casts the mainstream media as wilfully misleading the public, but victims of intentional defamation are, and always have been, free to sue. The protections DeSantis opposes only apply to accidental defamation, and only when the victim is a public figure.
Those who investigate the powerful are sure to make mistakes on occasion. It’s inevitable, especially when government officials do everything they can to limit access to official records and obscure the truth. Without some breathing room for errors, people would be so scared of being sued for criticizing deep-pocketed elites that they would censor themselves into silence.
That’s why, in the 1964 case New York Times Co. v. Sullivan, the Supreme Court unanimously endorsed the “actual malice” standard requiring public figures to prove their detractors not only erred but either knew their statements were false or recklessly disregarded the truth. In other words, intentional errors remain actionable, but honest mistakes are not.
The actual malice defense helps conservative media as much as anyone. Fox News is relying on the actual malice standard in court right now. It’s not the first time. Donald Trump Jr. and Rudy Giuliani used it to defeat defamation claims by Trump impeachment whistleblower Lt. Col. Alexander Vindman. Conservative commentators have cited the actual malice standard in response to alleged litigation threats by Hunter Biden over reporting on his laptop.
It also protects independent and alternative outlets, bloggers, political and religious radio hosts, YouTubers, pro-life activists and many others whose perspectives conservatives value. And its reach extends beyond partisan politics. For example, it’s the only thing stopping Brett Favre from weaponizing the courts to silence discussion of welfare fraud allegations against him.
Both versions of the bill penalize journalists for relying on the kinds of anonymous sources that have brought down presidents in this country.
Journalists would love to quote their sources by name, but those with the most newsworthy information to share often have the most to lose by sharing it. And they have reason to be concerned — Democratic administrations, like Republican ones, have often overreached to learn the sources of damaging stories.
Right-leaning journalists rely as heavily on confidential sources as anyone. And conservative originalists might note that the Federalist Papers were written under a pseudonym.
Anonymous sourcing is merely a symptom of a lack of transparency. Conservatives bothered by anonymous sourcing should urge their government to make more records public and speak openly with the press so that journalists don’t need to rely on back channels. They should also insist on strong whistleblower protections and media relations policies that empower government employees to speak in their own names without fearing retribution.
The House bill’s provision that defamation plaintiffs could recover their attorney’s fees is an abdication of conservative principles. The party of tort reform should not be legislating gifts to plaintiffs’ lawyers.
In fact, Florida’s legislature is considering a tort reform bill intended to end a “cottage industry of litigation” while simultaneously seeking to become a destination for libel tourism.
There is no basis to single out defamation as an exception to the centuries-old "American rule" that litigants pay their own costs (as opposed to the “English rule,” favored by DeSantis, that the loser pays). Doing so would be fatal to free speech by independent outlets and individuals that can’t afford their own lawyers, let alone someone else’s. One error could silence them for good.
Even outlets that are never successfully sued for defamation could see their insurance premiums skyrocket due to the mere possibility. Non-journalists holding home and business insurance policies that cover defamation may well see their costs spike as well.
Both versions of the bill make it easier for public figures to sue for defamation if “the allegation does not relate to the reason for [their] public status.” Well, Bill Clinton did not become a public figure by having affairs with interns.
Should he have been able to sue his accusers for defamation (or intimidate them into silence) if their recollections were not 100% accurate? Should he have been able to bankrupt journalists who investigated him if their sources got some details wrong?
Similarly, Joe Biden did not become a public figure through his son’s foreign entanglements or the contents of his laptop. Presumably, conservatives would not want to stifle investigations into those matters either. But the Florida bills would do just that, blocking journalists and ordinary citizens alike from finding the skeletons in the closets of the wealthy and powerful.
The House bill singles out allegations of discrimination based on race, sex, sexual orientation and gender identity, limiting available defenses to defamation suits and providing for additional damages.
That may appeal to some “culture wars” voters but it’s short-sighted and will end up punishing conservatives who, like DeSantis himself, oppose reverse racism and woke-ism. Authors whose works DeSantis has sought to keep out of schools because of content he characterized as racist might want to consult their lawyers if DeSantis’ proposals become law.
Plus, if DeSantis can carve out categories of speech he disfavors for special treatment, what’s to stop future Democratic governors or presidents from doing the same for, say, criticism of abortion providers? Instead of the government placing its thumb on the scale, the law should provide a level playing field for all litigants.
Both bills, but especially the House one, would needlessly weaken Florida’s anti-SLAPP (Strategic Lawsuits Against Public Participation) law.
A majority of states, red and blue, have passed similar anti-SLAPP laws because it’s imperative that defendants of all political stripes can fight back against retaliatory litigation intended to silence them. For example, a defamation lawsuit against conservative commentator Candace Owens was recently dismissed, and she was awarded $115,000 in attorney fees and costs, under Tennessee’s anti-SLAPP law.
Utah, a red state by any definition, expanded its anti-SLAPP law earlier this month. Florida expanded its own anti-SLAPP law in 2015, declaring that “It is the intent of the Legislature to protect the right in Florida to exercise the rights of free speech in connection with public issues.”
There’s no reason that conservatives in Florida should be deprived of the protections against meritless defamation claims available elsewhere.
Both bills would restrict journalists accused of defamation from relying on the reporter’s privilege to keep their sources confidential. The Senate bill extends beyond defamation to “related” claims.
That means any public figure wanting to learn who is exposing their malfeasance can circumvent the privilege by filing a defamation action, especially if DeSantis succeeds in neutering the defenses that enable early dismissal of baseless claims.
Government insiders need to be able to speak to journalists confidentially without fearing for their careers and safety if they’re unmasked. That’s why 49 states, both red and blue, as well as several federal circuits, recognize reporter’s privileges.
. America has long distinguished itself from Europe and elsewhere by taking pride in its protections for speech and press freedoms and its understanding that the fear of litigation promotes self-censorship.
That’s why Congress passed the bipartisan SPEECH (Securing the Protection of our Enduring & Established Constitutional Heritage) Act in 2010. It protects Americans from defamation judgments in jurisdictions that do not recognize the same safeguards as American courts, including the actual malice standard.
That means that if a foreign country passed either version of the Florida bill, U.S. courts could not enforce that country’s defamation judgments because Congress bipartisanly recognized that anything else would be unAmerican.
The Florida bill represents an abandonment of fundamental principles held dear not only by conservatives but by all Americans. Conservatives who are intentionally defamed by the media already have adequate recourse. Repeating Europe’s mistakes by expanding defamation liability for well-intended critics of government would be a gift to wealthy and powerful elites.