Florida Republicans are working to make it a lot easier to sue journalists for defamation, outraging many First Amendment advocates and publishers around the state. If they reach the governor’s desk, a pair of bills currently making their way through the Legislature could fundamentally change how media outlets report on public figures.
Among other things, the bills lower the bar for defamation cases, restrict protections for journalists’ use of anonymous sources in those cases, and limit the circumstances in which media outlets can win attorneys fees if they countersue for legal attacks.
The proposed changes go right to the heart of the U.S. Supreme Court case that defined modern libel law with the “actual malice” standard in 1964, New York Times Co. v. Sullivan — and provoking the court’s conservative majority to radically reconsider American libel law may be part of the goal.
Florida Gov. Ron DeSantis, who prides himself as a pugilist against the mainstream press, hosted a panel discussion in February that featured, among others, Nicholas Sandmann, who sued a raft of mainstream outlets over their coverage of his viral 2019 encounter with a Native American activist in Washington. (Sandmann settled his suits with three outlets, and his cases against five others were dismissed by a federal judge.) During the discussion, DeSantis mused that “there’d probably be a couple other justices that would be receptive” to revisiting the Sullivan ruling, in addition to Clarence Thomas and Neil Gorsuch, both of whom have called for the court to reconsider the case.
“It is encouraging to see the Legislature taking up the important topic of media accountability and joining the conversation that the governor began,” Jeremy Redfern, DeSantis’ deputy press secretary, told HuffPost. “We are following this legislation through the legislative process.”
But if DeSantis and his Republican allies are imagining these bills as a glorious war against the so-called liberal media, they may be in for a rude surprise: Publishers from right-wing outlets are growing concerned that the new legislation would also damage their own operations.
The Florida Standard, a conservative website, has made a name for itself with scoops from the governor’s office. But it’s also amplified false claims like “Former Pharma Exec Says COVID-19 Shots Are U.S. Government Biowarfare Operation Against Own Population” — a view that CEO and Editor-in-Chief Will Witt, in a phone call with HuffPost, said he personally doesn’t share.
Witt, a former PragerU video personality who moved to Florida from Los Angeles, did stand by past statements of his own suggesting that the racist “great replacement” conspiracy theory is real and that parents who bring their children to pride parades — where “people were committing sexual acts in the street” — should be charged with abuse.
Now, Witt said, he’s concerned about defamation exposure, should the legislation pass.
“The way that it’s structured now does harm to everyone,” he said. “It’s really more of a First Amendment issue than a ‘holding media accountable’ issue.” Reflecting on past stories covered by his site, Witt acknowledged, “We might say, editorially, that we don’t want to publish some of these things now because of what goes on with this [legislation].”
Brendon Leslie, the founder of Florida’s Voice — “a patriotic news network” on a mission to “destroy fake news” — told HuffPost in an email that the proposals will “disproportionately impact the little guy,” flooding companies without legal teams with frivolous lawsuits.
“This is basically bullying a journalist into submission to divulge his source,” he said about language in HB 991, the state House version of the legislation, that would create the assumption that anonymous sources are false.
“This is basically bullying a journalist into submission to divulge his source.”
“Lowering the threshold to sue over defamation, as a public figure, will have a boomerang effect,” Leslie said. “Republicans are going to toss it at the liberal media, smack them in the face, then it will come right back to smack the conservative media in the face. It’s a can of worms not worth opening.”
The crackdown on journalists’ defamation defenses would likely hurt right-wing outlets in the state as much as any centrist or left-wing ones, said Carol LoCicero, a media lawyer who testified against HB 991 before a committee approved the proposal. The other bill, SB 1220, was approved by the state Senate Judiciary Committee on Tuesday.
Christian radio stations, popular in Florida, often have small legal budgets, LoCicero noted, and “provocative” conservative talk shows could be vulnerable to lawsuits. “It really is going to affect anyone who opens their mouth or touches a keyboard,” LoCicero said.
And she would know: LoCicero’s firm defended right-wing outlet Newsmax against a suit from conspiracy theorist Jerome Corsi after a guest accused Corsi of plagiarism and said, among other things, that he “has never even met the truth.” (The suit was dismissed. Larry Klayman, Corsi’s attorney in the case, warned HuffPost in a phone call not to defame him, and then called the proposed bills “very positive.”)
Leslie said publishers worried about the bills and were talking behind the scenes to each other, but he called it a “shame” that more hadn’t come out publicly. Florida’s Voice, for its part, reported on one exception: the owner of 92.5, a right-leaning Fox News radio station in southern Florida, who wrote in a letter to lawmakers that HB 991 would end up “neutering” the station and create an untenable amount of liability.
Currently, 92.5 carries content from the likes of commentators Sean Hannity and Glenn Beck. But, station owner James Schwartzel reportedly wrote, if the current legislative proposals are made law, “We will change our conservative programming, and announcers will quit.”
“The devastation,” he added, “will be severe and swift. Republicans will lose one of their most prominent platforms to reach their base forever.”
Though a surprising number of conservative voices are speaking out, opposition to the bills is coming from across the political spectrum. The Miami Herald’s editorial board lambasted HB 991 as “blatant hypocrisy” in what DeSantis calls the “free state of Florida,” with the newspaper saying the legislation was intended to “muzzle” negative press.
Testimony against the two proposals has come from representatives of the American Civil Liberties Union, the First Amendment Foundation and the Foundation for Individual Rights and Expression.
During a House subcommittee hearing on HB 991, Christopher Stranburg, the legislative affairs director at the Florida outpost of conservative advocacy group Americans for Prosperity, objected to the bill’s changes to “anti-SLAPP” provisions — that is, existing law disincentivizing groundless defamation claims, including by awarding attorneys fees to the winning party. Stranburg said these alterations would impede Floridians from protecting themselves against “chilling” lawsuits.
Immediately after him, Jon Harris Maurer, the public policy director of LGBTQ advocacy organization Equality Florida, called out a section in the bill stating that allegations of discrimination themselves constitute per se defamation — while remaining silent on allegations of, for example, “grooming” children. (Calling someone a “groomer” is simply “hyperbole,” state Rep. Alex Andrade, the Republican who sponsored the bill, said later in the hearing.)
HB 991 and SB 1220 propose changes via multiple channels, including stripping rules protecting journalists’ anonymous sources in defamation suits, and lowering the bar in defamation cases brought by public figures from so-called actual malice — in essence, knowingly printing a lie or acting with a reckless disregard for the truth — to acting “negligently” when anonymous sources are cited.
The bills would also limit the actual malice standard to stories related to the “reason” for a public figure’s specific public status — excluding other stories that may nonetheless be in the public interest.
“If only official conduct is at issue and fair game, then sexual conduct allegations against [politicians] Bill Clinton or Al Franken may never have surfaced,” said First Amendment lawyer Rachel Fugate during testimony before the Senate Judiciary Committee.
Also, both bills encourage forum-shopping within the state by allowing plaintiffs to sue in any county where allegedly defamatory material is accessed — meaning a plaintiff from northern Florida can force a publisher in Miami to travel hours away for a hearing, and vice versa.
“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,” wrote the Reporters Committee for Freedom of the Press, a nonprofit providing legal services and resources to journalists.
Peter Schorsch, a former political operative and longtime publisher in the state who now runs FloridaPolitics.com — and who is known for breaking the story of the FBI’s 2022 search at former President Donald Trump’s Mar-a-Lago resort — expressed frustration at what he said was “this warped sense of what journalism is” among Florida’s legal and political class.
“I’m amazed at how unaware a lot of the legal community, and certainly most of the political community, is about defamation laws,” Schorsch said, estimating he currently spends $50,000 to $100,000 per year heading off potential legal issues. “It’s going to put us on a defensive position, just for reporting the blocking and tackling, and the basic functions of campaigns,” he said of the legislation.
“I’m amazed at how unaware a lot of the legal community, and certainly most of the political community, is about defamation laws.”
Schorsch said he believed DeSantis was giving the bills’ sponsors, Andrade and Sen. Jason Brodeur, permission to do something they’d long wanted to do: diminish the Florida press. “You have two lawmakers here who’ve had bad run-ins with the media — for whatever reason — taking it back out on the media,” he said. (Neither sponsor returned HuffPost’s requests for comment.)
Schorsch added that he assumes “newfangled conservative sites” like The Florida Standard and Florida’s Voice will be hurt the most by the legislation — “the ones most politically aligned with the Legislature,” he said.
For his part, Witt believes the bills could hurt publishers across the political spectrum. Regardless, he’s concerned about the consequences for his website if “journalists get, really, thrown under the bus if anything that they say could be deemed ‘true’ or ‘false’ by some politicized court.”
“Now, I don’t know if that’s always going to be the case,” he reasoned. “You could have courts that are constitutionally sound, who are looking at things objectively. But I think you and I both know that in all courts around America, that’s definitely not the case. It’s hard to know how courts will react to a certain story.”