Florida lawmakers will consider a proposal to re-write rules around who is considered a public figure, and what circumstances would constitute a defamation claim against media outlets. The proposals are raising concerns about their constitutionality and whether they violate free speech rights.
Intentional defamation or negligence?
Rep. Alex Andrade (R, Pensacola) brought up the case of Nicholas Sandman. In 2017, the then 16-year-old was in Washington D.C. when he and a group of his peers encountered protestors. A viral social media video showed Sandmann wearing a MAGA hat and standing in front of Native American elder Nathan Phillips and appearing to smile. Phillips told reporters that Sandmann had blocked his path. Sandmann said he was standing still to defuse the situation. The incident was widely covered by national news outlets and the 16-year-old received backlash. He later sued several media outlets for defamation. He lost some cases and settled others—most notably, with the Washington Post. Sandmann was not a public figure before this moment and Andrade says Sandmann never should have been thrust into such a public spotlight.
“In defending against the lawsuit Sandman brought, many of the outlets tried to argue he was a public figure. But he was a public figure based solely on the fact he was being defamed. The fact that argument can even conceivably be made is just something I think is egregious," said Andrade.
Andrade’s bill would narrow the legal definition of public figure, excluding people who become famous from a viral video. The measure would broaden the definition of who is considered a journalist. It would also deem any statements given by an anonymous source automatically false in defamation cases and attempts to force journalists to reveal their sources. The bill also prevents anyone from making claims about racism, bigotry and discrimination against a subject if those positions are part of that person’s scientific or religious beliefs. Critics argue the bill’s language is too broad and would lead to a silencing of criticism against traditional public figures like government officials. There are also concerns the measure is unconstitutional. Andrade doesn’t see it that way.
“I think some of the debate around this bill misses the point. We are starting from defamation. To even be part of this discussion, someone would have had to publish a false statement about you that’s harmed your reputation. There are plenty of instances where regular folks have suddenly become public figures because of the power of social media. Some of that needs to be corrected and addressed.”
The proposal has drawn consternation from traditional media organizations, academic groups, and even the non-partisan Foundation for Independent Rights and Expression. FIRE has often agreed with Republicans on things like banning free speech zones on college campuses. The organization is now concerned any speech that a public figure thinks paints them negatively could be grounds for a lawsuit under the bill—even if that speech came from a private person.
"You have a private citizen lodge an allegation, whether it’s a letter to the editor, an interview or post on social media…and that public figure sues them alleging defamation—but no longer has to prove actual malice, which [causes] many lawsuits get thrown out—now those cases can proceed and get more costly for the people who have to defend against it, said FIRE's Joe Cohn, the legislative and policy director for the organization.
A stab at the heart of 1A
“What is particularly worrying about this bill is that it’s neither liberal or conservative, it’s neither right nor left. It’s a blunt instrument. It impacts everyone equally. Perhaps conservative and Christian media is going to be the most vulnerable to this law," said Florida First Amendment Foundation Executive Director Bobby Block.
The bill comes after years of increased pressure, and public anger, directed at media in all forms—from traditional news outlets, to social media, to entertainment, bloggers, et-cetera. Critics on the right argue there’s a liberal bias and have railed against what they see as a culture that deems any form of criticism as Racist. Critics on the left feel traditional outlets are old-fashioned in their assessments, and don’t investigate or interrogate discrimination, classism, and other “isms” enough, or, are guilty of feeding false narratives.
Then, there’s disinformation—wrong information deliberately intended to mislead. This is what can usually be found online in outlets masquerading as legitimate. But the solution to the cultural fractures that play out across all mediums, said Block, isn’t this bill.
“I think a lot of people who may be frustrated at the traditional media, which reflects what’s increasingly become an ugly national discourse…may say ‘right, I feel good, the media is being punished.’ When in fact, the media is being chilled or intimidated into silence or worse.”
Andrade’s bill does not explicitly state that it’s meant to challenge the U.S. Supreme Court’s New York Times vs. Sullivan ruling. However, an earlier version of the bill, that was filed a day before and withdrawn, does. The Sullivan ruling has long been a standard used to shield journalists from frivolous lawsuits. It holds that someone has had to act with actual malice—the Florida bill removes that standard. Andrade calls his bill “Journalism 101.”
"Everyone runs the risk of getting facts wrong sometimes. All the bill says in that circumstance though is that if you publish something that turns out to be wrong…you need to be able to show you were operating in good faith, that you tried to verify that information," he said.
Going after bloggers
Meanwhile a watered down version of the bill in the Senate is being brought by Sen. Jason Brodeur (R, Lake Mary). His measure follows similar themes as Andrade’s proposal but does not have the language about sincerely held religious or scientific beliefs as a defense against accusations of racism and discrimination, even if those claims are true. Brodeur also has another bill that would require people like bloggers who write about state officials and get paid for their work to register with the state. In a statement to Florida Politics, the senator likened bloggers to lobbyists and said they should have to register just as lobbyists do. The bill would not apply to websites run by newspapers or other traditional outlets.
Gov. Ron DeSantis held a roundtable about media defamation just weeks before Andrade and Brodeur filed their bills. A similar one was floated last year, but never filed. This year is much different, as Florida Republicans hold all state offices and a super-majority in the Florida legislature.
