Roll back press freedoms

DeSantis wants to roll back press freedoms — with an eye toward overturning Supreme Court ruling

Florida Republicans are seeking to weaken laws protecting journalists.

By MATT DIXON

Florida Gov. Ron DeSantis’ broken relationship with the mainstream media could get even worse.

At the governor’s urging, Florida’s Republican-dominated Legislature is pushing to weaken state laws that have long protected journalists against defamation suits and frivolous lawsuits. The proposal is part DeSantis’ ongoing feud with media outlets like The New York Times, Miami Herald, CNN and The Washington Post — media companies he claims are biased against Republicans — as he prepares for a likely 2024 presidential bid.

Beyond making it easier to sue journalists, the proposal is also being positioned to spark a larger legal battle with the goal of eventually overturning New York Times v. Sullivan, the landmark 1964 U.S. Supreme Court ruling that limits public officials’ ability to sue publishers for defamation, according to state Rep. Alex Andrade, the Florida Republican sponsoring the bill.

“There is a strong argument to be made that the Supreme Court overreached,” Andrade said in an interview. “This is not the government shutting down free speech. This is a private cause of action.”

Andrade said he is working with DeSantis’ office on the bill: “I would say I am accepting their input.”

DeSantis has a combative relationship with many media outlets, refusing to conduct interviews with platforms except Fox News and building a communications team that openly brags that its role is to be antagonistic to members of the press. His former press secretary, Christina Pushaw, frequently argued with journalists on Twitter and was once suspended by the social media giant for abusive behavior.

Yet the proposed bill goes further than simply decrying media bias. Free-press advocates call the measure unconstitutional and suggest it could have far-reaching consequences beyond major media outlets.

“I have never seen anything remotely like this legislation,” said Seth Stern, director of advocacy for the Freedom of the Press Foundation. “I can’t say I have seen every bill ever introduced, but I’d be quite surprised if any state Legislature had seriously considered such a brazen and blatantly unconstitutional attack on speech and press freedoms.”

He added: “This bill is particularly remarkable since its provisions have the vocal support of a governor and likely presidential candidate.”

DeSantis’ office said he “will make a decision on the merits of the bill in final form if and when it passes and is delivered to the governor’s office.”

Earlier this month, DeSantis held a roundtable with a collection of right-wing personalities and attorneys who he said were media libel law experts. The main takeaway from the roundtable, which foreshadowed forthcoming legislation, was that DeSantis believes some journalists make things up.

“The idea that they would create narratives that are contrary to discovering facts, I don’t know that was the standard,” DeSantis said during the roundtable. “Now it seems you pursue the narrative, you’re trying to advance the narrative and trying to get the clicks, and the fact-checking and contrary facts have just fallen by the wayside.”

Andrade’s proposal incorporates many of the elements DeSantis called for during the roundtable, including:

— allowing plaintiffs who sue media outlets for defamation to collect attorneys fees;

— adding a provision to state law specifying that comments made by anonymous sources are presumed false for the purposes of defamation lawsuits;

— lowering the legal threshold for a “public figure” to successfully sue for defamation;

— repealing the “journalist’s privilege” section of state law, which protects journalists from being compelled to do things like reveal the identity of sources in court, for defamation lawsuits.

Stern said 49 states and several appellate circuits recognize a reporter’s privilege against court-compelled disclosure of source material and stressed that it’s essential for people to be able to speak to reporters without risking their jobs or freedoms.

“Journalists do not work for the government and it’s none of the government’s business how journalists gather news,” he added.

Andrade, however, said the privilege language in his bill would not allow a judge to force a journalist to reveal an anonymous source, but removes existing protections if they decide not to.

“The law protects journalists from being ‘compelled’ by judges to disclose anonymous sources, but if a journalist has been sued for defamation, and wants to avoid liability, this section makes clear that they cannot claim a special privilege to avoid disclosing the source of the defamatory information and also avoid liability,” Andrade said.

Critics of the bill took issue with the section about attorneys fees, saying it could add a financial incentive to file defamation lawsuits and erode the laws preventing retaliatory lawsuits filed to silence criticism. Florida, like other states, has anti-SLAPP (strategic lawsuits against public participation) laws designed to help stop frivolous lawsuits.

“One of my largest concerns with the bill is the rolling back of the anti-SLAPP protection for defamation defendants,” said Adam Schulman, a senior attorney with the Hamilton Lincoln Law Institute, which advocates for free markets, free speech and limited governments. ”That’s just moving in the wrong direction.”

He said beyond large media companies, some of which have legal teams, the changes could affect the “ordinary guy” who leaves an “unfavorable Yelp review.”

“At one time, it was not considered ‘conservative’ to advocate for turning on the spigot to all sorts of troll-like civil litigation that will line the pockets of bottom-feeding plaintiffs’ lawyers,” Schulman said.

Stern said the new bill would leave those protections “toothless.” Under most anti-SLAPP laws, individuals can recover attorneys’ fees if they can show they were sued in retaliation for criticizing the government.

“The new bill would change that so that plaintiffs whose lawsuits survive anti-SLAPP motions can recover their attorney’s fees,” he said. “That means the anti-SLAPP law would lose all of its value as a deterrent against powerful people filing abusive lawsuits to silence their critics.”

Andrade, however, said there needs to be a mechanism to collect attorneys fees to give the new laws strength and make it easier for those alleging defamation to bring lawsuits.

“It’s a policy designed to empower individuals who were on an unfavorable side financially to still be able to bring a cause of action,” he said. “In any circumstance like this the risk of plaintiff’s lawyers taking advantage of the system is a consideration, but it is only one of many considerations.”

Elected officials routinely criticize the media as biased, but Donald Trump ramped up those attacks during the 2016 election cycle and beyond. The former president regularly labeled news stories he didn’t like as “fake news” and would chide individual reporters at The Washington Post, The New York Times and elsewhere. Trump is widely seen as DeSantis’ top rival for the GOP nomination in 2024.

Andrade said he has personal reasons for wanting to sponsor the bill, including a March 2022 story in the Pensacola News Journal about the state’s contentious and long-running push to overhaul its permanent alimony system. The story quotes a woman who receives permanent alimony as part of a divorce saying that Andrade, who sponsored or co-sponsored versions of an alimony bill, “pitched a fit” when he discussed the proposal with her.

“I told the media outlet that the claim being made was false,” he said. “The lady claimed I cursed her out. I provided witness statements and offered phone records, and the media outlet did not consider any of it. They did not even call me for a quote.”