Government

FL Takes A Swing At Reporters, Knocks Out First Amendment

If they don't say they're overturning NYT v. Sullivan, maybe no one will notice?

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Florida Governor Ron DeSantis Campaigns With Senate Candidate Adam Laxalt In Nevada

(Photo by Ronda Churchill/Getty Images)

Florida Governor Ron DeSantis’s plan to culture war himself into the White House continues apace. Today’s performative flexing includes a bill to overturn the Supreme Court’s holding in NYT v. Sullivan and allow religious people to recover a minimum of $35,000 if someone calls out their bigotry.

As the Orlando Sentinel reports, DeSantis has been gunning to take on the media for a while now. At a February 7 “roundtable to discuss the damaging impacts of defamation from the legacy media,” the governor vowed to “stand up for the little guy against these massive media conglomerates.”

“We’ve seen over the last generation legacy media outlets increasingly divorce themselves from the truth and instead try to elevate preferred narratives and partisan activism over reporting the facts,” he blustered, flanked by Nick Sandmann, a teenager who smirked his way to right-wing superstardom, if not actual riches.

The first instantiation of this was HB 951, which purported to explicitly overrule Sullivan, decrying the “federalization of defamation law, including the judicially created actual malice standard, [which] bears no relation to the text, structure, or history of the First Amendment to the United States Constitution.” That version of the bill was quickly yanked, presumably for saying the quiet part out loud, and replaced with HB 991, which does effectively the same thing but with a bit more subtlety.

But only a very little bit! The law purports to do away with the actual malice standard for public figures, i.e. the main Sullivan holding, or at least to convert them all to limited purpose public figures:

Actual malice for public figures in defamation cases:

A public figure does not need to show actual malice to prevail in a defamation cause of action when the allegation does not relate to the reason for his or her public status.

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And here’s a little love note to all the bigots. Because if this bill passes, calling someone out for discrimination based on their religious or “scientific” beliefs would be defamation per se, costing the speaker at least $35,000 irrespective of actual harm caused:

An allegation that the plaintiff has discriminated against another person or group because of their race, sex, sexual orientation, or gender identity constitutes defamation per se.

(a) A defendant cannot prove the truth of an allegation of discrimination with respect to sexual orientation or gender identity by citing a plaintiff’s constitutionally protected religious expression or beliefs.

(b) A defendant cannot prove the truth of an allegation of  discrimination with respect to sexual orientation or gender  identity by citing a plaintiff’s scientific beliefs.

(c) A prevailing plaintiff for allegations under this subsection is, in addition to all other damages, entitled to statutory damages of at least $35,000.

Calling someone a bigot because he bars trans women from the appropriate restroom based on the “scientific” belief that gender is based on genitals? It’ll cost ya $35K — plus the attorneys fees. And under this bill, venue is appropriate statewide, so you might find yourself dragged into court in the wilds of the panhandle.

But most of all, this bill is a broadside against the media, as DeSantis promised. Statements by anonymous sources are “presumptively false for purposes of a defamation action,” and reporters must either reveal their sources or pay up. Indeed, the very first section of this law removes protection for sources in defamation cases “when the defendant is a professional journalist or media entity.”

In short, this legislation is wildly illegal and a gross assault on the First Amendment. But attacks on the Lügenpresse have gotten DeSantis this far, so expect a whole lot more of them.

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DeSantis-backed bill would make it easier to sue news media [Orlando Sentinel]

Liz Dye lives in Baltimore where she writes about law and politics.

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