March 4, 2023
The editorial board is a group of opinion journalists whose views are informed by expertise, research, debate and certain longstanding values. It is separate from the newsroom.
A homeowner gets angry at a county commission over a zoning dispute and writes a Facebook post accusing a local buildings official of being in the pocket of developers.
A right-wing broadcaster criticizing border policies accuses the secretary of homeland security of being a traitor.
A parent upset about the removal of a gay-themed book from library shelves goes to a school board meeting and calls the board chair a bigot and a homophobe.
All three are examples of Americans engaging in clamorous but perfectly legal speech about public figures that is broadly protected by the Constitution. The Supreme Court, in a case that dates back nearly 60 years, ruled that even if that speech might be damaging or include errors, it should generally be protected against claims of libel and slander. All three would lose that protection — and be subject to ruinous defamation lawsuits — under a bill that is moving through the Florida House and is based on longstanding goals of Gov. Ron DeSantis.
The bill represents a dangerous threat to free expression in the United States, not only for the news media, but for all Americans, whatever their political beliefs. There’s still time for Florida lawmakers to reject this crude pandering and ensure that their constituents retain the right to free speech.
“This isn’t just a press issue,” said Bobby Block, executive director of Florida’s First Amendment Foundation. “This is a death-to-public-discourse bill. Everyone, even conservatives, would have to second-guess themselves whenever they open their mouths to speak or sit in front of a keyboard.”
The bill is an explicit effort to eviscerate a 1964 Supreme Court decision, The New York Times Company v. Sullivan. This bulwark of First Amendment law requires public figures to prove a news organization engaged in what the court called “actual malice” to win a defamation case. By preventing lawsuits based on unintentional mistakes, the decision freed news organizations to pursue vigorous reporting about public officials without fear of paying damages. The decision has even been applied by lower courts to bloggers and other speakers who make allegations about public figures.
Many conservatives, including Mr. DeSantis, have long chafed at the freedom that this decision gives to a news industry they consider to be too liberal. The new bill embodies that antagonism. It would sharply limit the definition of public figures, eliminating public employees like police officers from the category, even if they become public figures because of their actions.
It would change the definition of actual malice to include any allegation that is “inherently improbable” — an impossibly vague standard — or that is based on what it calls an “unverified” statement by an anonymous source. In fact, it says that all anonymous statements, a crucial tool for investigative reporting, are “presumptively false” for the purposes of a defamation case. Anonymous sources were the basis for much of The Washington Post’s coverage of Watergate and The Times’s exposure of the Bush administration’s domestic eavesdropping program in 2005, among many other examples of journalism with significant impact.
Under the bill, a public figure would no longer need to show actual malice to win a defamation case if the allegation against the figure wasn’t related to the reason for the person’s public status. So if a person is publicly known for being elected president or governor, and a news organization publishes an investigation about that person’s private or business life unrelated to elected office, that report would not get the special liability protection provided by the Sullivan decision.
The bill goes much further than this attempt to hobble the press. It makes it clear that the new defamation rules would also apply to any single “utterance on the internet,” which could mean a tweet or a Facebook post written by anyone, or “any one presentation to an audience,” which could include statements made at school board hearings and other public meetings.
In a direct attack on a key aspect of free expression, it says that whenever someone is accused of discriminating against others on the basis of race, gender or sexual orientation, that accusation is automatically considered enough to sue for defamation. Any person accused of bigotry based on sexual orientation or gender identity could file a defamation lawsuit and be virtually guaranteed of winning by saying the discrimination was based on personal religious or scientific beliefs. The penalty for calling someone a bigot would be a minimum of $35,000.
Mr. DeSantis, who appears to be preparing for a 2024 presidential campaign, has been railing against press freedoms for several years in a clear appeal to likely Republican primary voters. The bill was recently introduced in the Florida House by one of his allies and has a strong chance of passage; a similar if slightly milder version was filed in the State Senate.
If enacted, the House bill would almost instantly be challenged in court, but its backers are counting on that. In public statements, they have said they want the bill to be used as a vehicle to get the Supreme Court to overturn New York Times v. Sullivan and have noted that two justices, Clarence Thomas and Neil Gorsuch, have called on the court to reconsider that decision. The current court has repeatedly demonstrated that it can’t be counted on to respect long-term precedents that are widely supported by the public.
There may be room for discussion on the precise definition of “public figure,” which has been interpreted in various ways by the Supreme Court and lower courts over the past six decades. Even Justice Elena Kagan, in a 1993 journal article long before she joined the court, expressed interest in determining whether the term had been too broadly defined in the years after Sullivan, though she applauded the overall decision.
A sledgehammer bill like the one in Florida, however, wielded for transparent political reasons, would create enormous damage on the way to the high court, particularly if other states decide to copy its language. In 1964, Justice William J. Brennan Jr., who wrote the court’s opinion, said it was based on “the principle that debate on public issues should be uninhibited, robust and wide open.” That may well include, he wrote, “vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.” That principle has not changed through the decades, and any citizen who treasures the right to speak freely should resist politicians like Mr. DeSantis who want to silence them.