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Legislation designed to weaken decades-old legal protections for journalists and news outlets is again advancing amid arguments that it will have a “chilling effect” on efforts to hold the powerful accountable.
Members of the House Civil Justice Subcommittee voted 12-4 for a measure (HB 757) that would lower the legal bar in defamation lawsuits by shifting the burden of proof from the plaintiff to the defendant.
That’s appropriate given how little faith there is today in media to get the story right, argued Pensacola Republican Rep. Alex Andrade, the bill’s sponsor.
“The issue right now is trust in the media is at an all-time low,” he said. “Media is not engaging in sufficient self-regulation.”
HB 757 would provide that courts accept as a rebuttable presumption — an assumption of fact or law — that if a defamatory statement about a public figure is published and the statement relied on an anonymous source, the publisher acted with malice.
This change would reduce the threshold for defamation lawsuits established in the 1964 U.S. Supreme Court case New York Times v. Sullivan, which required that in order to prove libel, a public official must prove a news outlet intentionally published false statements about them for the purpose of harming their reputation — actual malice — rather than due to mere negligence.
Andrade noted that Florida’s anti-SLAPP (strategic lawsuits against public participation) laws protect individuals, journalists, bloggers and businesses from frivolous legal action meant to silence them. As such, he said, all HB 757 would do is provide slandered or libeled people a less obstructed path toward clearing their name.
“We’re only talking about what get-out-of-jail-free cards might still be applicable,” he said. “By expecting people to act in good faith, they’re allowed to get it wrong. But what they’re not allowed to do is act so recklessly that they publish something that could harm someone’s reputation without doing the bare minimum due diligence.”
HB 757 would also change state statutes to allow lawsuits over defamatory statements made on radio or TV to be brought forth in any county where the show or program is accessible.
Further, it would provide that someone is liable for defamation if they use artificial intelligence to make an image shown to the public portraying someone in an “offensive” that a “reasonable viewer” would believe is real.
Andrade amended the bill Thursday to require that if an article or broadcast published online is found by a court to include defamatory statements about a person, the publisher must permanently remove it.
Another amendment the committee approved would allow people who believe they’ve been defamed or portrayed in a false light to receive a pretrial “veracity hearing” before a Judge. The hearing, similar to an injunction, would have to be held within 60 days of the request, and the Judge would only be able to rule whether the statement or statements in question were true or false.
More than half a dozen advocacy organizations — including ACLU Florida, Women’s Voices of Southwest Florida, Equality Florida, Common Sense Florida and the Sierra Club — signaled opposition for the bill, which is a pared-down version of legislation Andrade and Lake Mary Republican Sen. Jason Brodeur carried last year that died in the waning days of Session after conservative media outlets rallied against it.
Brodeur is again sponsoring a companion (SB 1780) to Andrade’s bill in the Senate that, among other things, would also raise the standard for who qualifies as a public figure, excluding people who become well-known for being interviewed, defending themselves against accusations or going viral online.
Bobby Block of the First Amendment Foundation said Andrade and Brodeur’s proposals are “firmly in violation” of the First Amendment and, if passed, would join “a slew of other bad legislative ideas” that have cost Florida millions of dollars in legal fees before being defeated due to their “overbroad” and “ill-advised” provisions.
Under HB 757, “Florida would become the libel tourist destination of the United States, opening up a floodgate of frivolous lawsuits against writers, broadcasters, comedians (and) mom-and-pop Facebookers who may or may not have erred in reporting or criticizing the actions of elected officials and wealthy public figures,” he said. “Far from being an equalizer for wronged politicians, the real beneficiaries of this law would be trial lawyers.”
Miami Democratic Rep. Ashley Gantt, a lawyer, decried the bill for being likely to have a “chilling effect” on journalism by dissuading people who want to provide reporters with information on an anonymous basis from stepping forward for fear of retaliation.
She added that the Florida Department of Legal and Public Affairs’ budget has seen a 93% budget increase.
“It’s because there are so many lawsuits that are being filed because we are filing and passing and subsequently signing unconstitutional bills into law,” she said. “And it is costing Florida taxpayers a lot of money.”
Andrade scoffed at Block and Gantt’s comments, likening them to the story of Chicken Little crying that “the sky is falling.”
“I encourage you to call journalists that you know and say, ‘Have you published something that might be defamatory or relied on one, single anonymous source before publishing it? Even if they have, they will never admit it,” he said.
“There is not a single journalist who would say, ‘Yes, I’ve got a valid argument for a circumstance where I relied on a single, anonymous source before publishing something that was ultimately false and harmed someone’s reputation.”
Riverview Republican Rep. Mike Beltran added that the “veracity hearing” created through Andrade’s amendment should reduce the number of lawsuits against news outlets.
He said he has no sympathy for publishers or people who make harmful, false statements about public officials and then refuse to back down after a judge tells them they were in the wrong.
“You said something false, presumably to a large audience, and then you go and you defend that — I lose no sleep about the expense of defending yourself from a claim when you’ve been adjudicated to have said something false,” he said.
Jacksonville Rep. Kimberly Daniels, the only Democrat to vote for HB 757, said she supports the bill “with joy.” She said in her work as a preacher and author, she has been publicly maligned without much recourse.
“The media is very important, but it kind of burns my heart a little bit that it’s so one-sided. Media’s not the only one that has to spend money. I’ve spent thousands of dollars,” she said. “When that so-called free speech is undergirded with untruths and vicious lies, I don’t believe that’s the intent.”
HB 757 is to next go before the House Regulatory Reform and Economic Development Subcommittee, the second of three panels to which House Speaker Paul Renner referred it.
SB 1780, meanwhile, awaits its first of three committee hearings.
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