Florida vs. First Amendment

Over the past weeks and months, you may have found yourself asking (or dreading to ask): what aspect of free speech will Florida target next? It started with the “Don’t Say Gay” bill, followed by the “Stop W.O.K.E.” Act’s efforts to ban books (including “woke” math text books), and the elimination of AP African American Studies, and a regulation requiring those seeking to protest at the State Capitol obtain sponsorship by a state agency and only protest about something that aligns with a state agency mission.

As Ron DeSantis continues to move Florida closer to authoritarianism, it’s no surprise that the media and the First Amendment find themselves in his crosshairs. A law recently introduced in the Florida House by a Republican member aims to limit the First Amendment protections afforded to the media under the landmark case New York Times v. Sullivan. That seminal case, decided almost 60 years ago, has been the law of the land and is a crucial foundation of a free and independent media. The key finding in that case provided that in order to prove a claim of defamation, a public figure must show that the statements published were made with “actual malice,” meaning that the publication knew the statements were false or acted with reckless disregard regarding the veracity of the statements.

In an attempt to do an end-run around Sullivan and suppress speech, the new Florida law proposes to make it much easier for “public figures” to successfully sue for defamation. The method employed in the bill is to remove from the definition of a public figure anyone who only becomes a public figure due to “defending himself or herself publicly against an accusation,” giving an interview on a subject, public employment (other than elected or appointed office), or “a video, an image, or a statement uploaded on the Internet that has reached a broad audience.” Even worse, the law significantly waters down the actual malice standard by providing that a public figure plaintiff will not have to prove actual malice either a) where the statement does not relate to the reason the person is a public figure or b) where a court determines the statement is “inherently implausible” or c) there “are reasons to doubt the veracity of the allegation.” How could this play out in real life? Under this law, if a news outlet wanted to publish allegations about Jerry Falwell Jr. and his wife seducing a 20-year old pool boy and engaging in other illicit activities, a Florida court could determine that such allegations were simply not credible (who woulda thunk it?) and that the publication of such allegations defamed Falwell.

Finally, and the portion of the law I personally find most disturbing and cringe-worthy, is that the law would make allegations that a public figure has discriminated against someone based on their gender, race or sexual orientation defamation per se and impose statutory damages as well as other damages on the defendant. In addition, a defendant would not be able to prove the truth of the allegation by referencing either the religious or scientific beliefs of the plaintiff. In other words, if an Evangelical Christian senator decides to make the unfounded and wildly discriminatory statement: “my Christianity tells me that all gay people are pedophiles,” and a news outlet makes the claim that such statement is discriminatory, that senator could sue for defamation and win every time.

This latest move to attempt to not only repress but utterly distort speech is incredibly troubling and needs to be called out for what it is – an effort to stifle all criticism of right wing, anti-democratic conduct and punish those who dare to say the emperor has no clothes.

This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Partner Nicole Page who counsels clients in areas of entertainment, employment and intellectual property. Ms. Page is admitted to practice law in New York and the United States District Courts for the Southern and Eastern Districts of New York.