On Monday, February 20th, 2023, Florida State Representative Alex Andrade proposed a bill, HB 991, that could make it easier for public figures in the state to file defamation lawsuits against media outlets. This bill has caused a stir, as it could significantly alter the precedent set by the landmark 1964 Supreme Court case New York Times Co. v. Sullivan.[0] In this case, the Court ruled that public figures must prove “actual malice” when suing for defamation, meaning that the outlet must have knowingly published false information, or published it with reckless disregard for the truth.[1]
The bill proposed by Rep. Andrade would remove existing protections for journalists, such as the “journalist’s privilege” which protects them from being compelled to reveal anonymous sources in court.[2] It would also make it more difficult to use anonymous sources, presuming statements from them to be false in defamation proceedings.[3] It expands defamation to include statements that are “inherently implausible” or where there are “obvious reasons to doubt the veracity” of claims, which are vaguely defined.[4]
The bill has been seen as a direct attack on the freedom of the press and free expression, and has been linked to Governor Ron DeSantis, who has been open about his disdain for freedom of speech and the press.[5] If passed, the bill would allow powerful litigants to evade the protections established by Sullivan, and would make it easier for public figures to sue media outlets for defamation. It could also stifle investigative reporting by presuming statements attributed to anonymous sources to be false.
Many are concerned that if Sullivan is overturned, it would only be the beginning of setting precedents that would make the job of journalists even more difficult, denying the public access to truthful and legitimate reporting.[6] Recently, Justices Clarence Thomas and Neil Gorsuch indicated that they would be open to the notion of revisiting Sullivan, and the Supreme Court now has the most conservative make-up that it has had in ninety years.[7]
The bill proposed by Rep. Andrade could have serious implications for freedom of the press, and free speech advocates are warning that it is being used as an attempt to silence criticism of elected officials like Governor DeSantis.[5] It remains to be seen what the outcome of this bill will be, and whether it will be successful in altering the precedent set by Sullivan.
0. “DeSantis-backed bill would make it easier to sue news media” Orlando Sentinel, 21 Feb. 2023, https://www.orlandosentinel.com/politics/os-ne-defamation-bill-filed-20230221-dnwg62x5afenpdqpuj5d773hnu-story.html
1. “Editorial: Those who would overturn landmark press protection want to dodge accountability” Brunswick News, 23 Feb. 2023, https://thebrunswicknews.com/news/national_news/editorial-those-who-would-overturn-landmark-press-protection-want-to-dodge-accountability/article_f598708b-10cd-5003-923e-d93b5875e634.html
2. “DeSantis wants to roll back press freedoms — with an eye toward overturning Supreme Court ruling” POLITICO, 23 Feb. 2023, https://www.politico.com/news/2023/02/23/florida-gop-desantis-proposal-sue-media-00084023
3. “Ron DeSantis Wants To Rewrite Defamation Law” Reason, 22 Feb. 2023, https://reason.com/2023/02/22/ron-desantis-wants-to-rewrite-defamation-law/
4. “DeSantis Ally in Florida Wants To Rewrite Libel Law | The New York Sun” The New York Sun, 23 Feb. 2023, https://www.nysun.com/article/desantis-ally-in-florida-wants-to-rewrite-landmark-libel-law
5. “‘Gift to the Ruling Class’: Florida Bill Would Make It Easier for Officials Like DeSantis to Sue Critics” Common Dreams, 21 Feb. 2023, https://www.commondreams.org/news/florida-bill-desantis-sue-critics
6. “Politics v. press: Why the world is closely watching renewed threat to landmark Supreme Court defamation case” Law & Crime, 20 Feb. 2023, https://lawandcrime.com/first-amendment/politics-v-press-why-the-world-is-closely-watching-renewed-threat-to-landmark-supreme-court-defamation-case/
7. “Florida Legislator Files Defamation Bill that Could Upend Precedent” Esquire, 22 Feb. 2023, https://www.esquire.com/news-politics/politics/a43031028/florida-defamation-bill/
