There are no lessons learned in the Florida Legislature.
Prodded by their hostility toward the “liberal media,” lawmakers tried last year to pass a bill that would have made it easier to sue for defamation. It was conservative media owners who realized this “own the libs” measure would have adverse effects.
Corporate media — a term of choice for Gov. Ron DeSantis, who supported last year’s legislation (HB 991) — have resources to fight expensive lawsuits. Small local radio stations and online publications — and your local Rush Limbaughs who might get too loose with facts — do not.
This year, the measure is back in a different version. An unlikely coalition of liberal-leaning groups like the American Civil Liberties Union and libertarian Americans for Prosperity, founded by the billionaire Koch brothers, is fighting it.
Bad for consumers, too
Even the Better Business Bureau, the apolitical nonprofit known for rating businesses and publishing customer complaints, opposes it.
With only a few days left in the 2024 session, prospects for passage thankfully appear dim.
House Bill 757 is an affront to free speech and is probably unconstitutional, a mechanism for public figures to silence negative coverage with the threat of litigation. Sponsor Rep. Alex Andrade, R-Pensacola, says he wants to hold people accountable for publishing false information.
But his bill clearly goes much further than that.
Lowering the bar for lawsuits
In a nutshell, HB 757 would lower the bar for filing defamation lawsuits. The bar was set in the landmark 1964 U.S. Supreme Court ruling in New York Times v. Sullivan. To win a libel case, a public figure must prove “actual malice” — that the statement about them was made “with knowledge that it was false or with reckless disregard for the truth.”
This standard was meant to protect public debate even if someone publishes information that contains errors.
Andrade’s bill would automatically assume malice if a statement about a public figure is proven false — no matter how small the error — and it came from one anonymous source. This could force journalists to decide between revealing their anonymous sources, and potentially endangering them, or face legal ramifications.
Perhaps the strongest rebuke to the legislation came from a grilling that Andrade received by a known conservative radio host. As Trey Radel, a former GOP congressman from southwest Florida, said, the impact on anonymous sources would create “a chilling effect out there for the next person who wants to expose the (Department of Justice, FBI and IRS),” USA Today Network reported.
‘Veracity hearings’
The bill also would force publishers of information into a “veracity hearing,” where they would have to prove their statements are truthful.
Those hearings would happen within 60 days of a motion being filed, giving defendants little time to prepare and forcing them to spend larger amounts of money to defend themselves, which could force smaller news operations or individuals who post something on social media into bankruptcy, Bobby Block, executive director of the First Amendment Foundation, told The Miami Herald Editorial Board.
As The Better Business Bureau wrote in a Feb. 13 letter to legislative leaders, an unscrupulous business unhappy with its ratings could force BBBs to “rush to court in remote jurisdictions without sufficient time for investigation and discovery.”
HB 757 allowed public figures to go “court shopping” by allowing libel suits based on materials posted online to be filed in any court in the state — in other words, jurisdictions that are more friendly to a public figure’s case.
After facing backlash, Andrade proposed an amendment to prohibit lawsuits from being filed “in a venue that does not possess a reasonable connection” to the case.
Andrade contends it’s already against the law to sue people for simply exercising their free-speech rights. But his critics point out that by lowering defamation standards, the legislation weakens such protections against baseless lawsuits. The Better Business Bureau wrote that the veracity hearings might allow plaintiffs to “escape the burden of establishing” a good faith basis for their claim.
What is the purpose of this legislation, then — other than to allow public figures to quash information they don’t like?
This editorial was adapted from an editorial by the Miami Herald. The Sentinel sometimes republishes editorials that reflect our overall point of view. The Orlando Sentinel Editorial Board consists of Opinion Editor Krys Fluker, Editor-in-Chief Julie Anderson and Viewpoints Editor Jay Reddick. Contact us at [email protected]
