Florida proposes to really ‘open up’ defamation law

Efforts to reform or, in the words of former President Donald J. Trump, “open up” defamation law are not new, though they tend to collide with the Supreme Court’s long-established precedent on the topic, which aims to protect robust public debate and enjoys support across the ideological spectrum.

In Florida, however, legislators are trying once again, and in earnest. Republican Gov. Ron DeSantis recently held a roundtable on defamation law, with panelists who decried the high constitutional bar powerful plaintiffs must clear to win defamation suits. And, in the past two weeks, the Florida House and Senate have introduced bills that would, if passed and upheld by the courts, radically transform defamation law in the state.

The two bills have a few provisions in common and a few differences. The House version, introduced on Feb. 21, is more sweeping. The Senate version, introduced a week later, gets rid of some of the more troubling provisions in the House bill. But both would harm public interest journalism, and, in some cases, contravene settled Supreme Court precedent.

For instance, both versions would abrogate Florida’s reporter’s privilege for defamation claims. (The Senate version does so for “related” claims, too.) Florida’s reporter’s privilege, which applies in all civil and criminal cases, is a statutory protection for journalists to ensure that they are not forced to hand over information obtained as a part of their newsgathering to courts or law enforcement without very good reason. If enacted, either of these bills would create an exception to this privilege for defamation cases.

Both bills also make it easier to sue for defamation when challenging statements by confidential or unknown sources. The House bill creates a presumption of falsity for statements by “anonymous” sources (presumably confidential as well as unknown). This shifts the burden from the plaintiff to the defendant, since the plaintiff does not need to affirmatively show that the claim is false. As such, it contradicts well–established Supreme Court precedent.

The Senate bill also lowers the threshold of proof that a public figure plaintiff must show when challenging statements by anonymous sources, from knowledge that something was false or reckless disregard of that possibility — the Supreme Court’s “actual malice” test established in New York Times v. Sullivan — to negligence, which only requires a plaintiff to show that the defendant acted unreasonably (the House bill does this for any plaintiff). This likewise contradicts established precedent.

We’re working on a comprehensive analysis of the two bills, which we hope to have posted soon. It is worth noting, however, that both bills contradict Supreme Court precedent and do so in a targeted way. Some have speculated that this is an effort to tee up a legal battle that will eventually end up at the Supreme Court, giving it an opportunity to reevaluate the “actual malice” standard established by Sullivan.

But, for whatever it’s worth, we at the Reporters Committee reviewed all of the opinions by Trump-appointed judges that cited Sullivan and did not see an appetite for reconsidering the standard. Only two sitting Supreme Court justices have expressed an interest in revisiting it, a number that has remained static since well before the Trump administration. (The late Justice Antonin Scalia, a Sullivan-skeptic, has been replaced on that front by Justice Neil Gorsuch, whose substantive concern with the case is significantly different than Justice Scalia’s originalist argument.) We are confident that the core holding of Sullivan — one that ensures accountability journalism can flourish — is secure, but we will keep you apprised with updates as they come.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology Press Freedom Project Fellow Emily Hockett.