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A proposed law in Tallahassee could stifle not only journalists, but everyone

The Florida Capitol building on Saturday, February 15, 2020, in Tallahassee.
Chris Day
Fresh Take Florida
The Florida Capitol building on Saturday, February 15, 2020, in Tallahassee.

A billmaking its way through Tallahassee would make it easier to sue media outlets and target the use of anonymous sources. It has a good chance of passing in the Republican-controlled legislature.

WUSF talked about its implications with Bobby Block, Executive Director of the First Amendment Foundation, based in Tallahassee.

Block says if it passes, the proposed legislation would cast a wide net, targeting not just journalists — but everyone from bloggers to talk radio hosts.

 Bobby Block
First Amendment Foundation
Bobby Block

WUSF: I'd like to get your take on why this bill is so important. Does it just affect journalists or it does have a broader impact?

BLOCK: No, it affects everybody's free speech. I mean, if you think about it, once upon a time, the news was what you heard on television and on your radio and what you got delivered to your front door.

And at that time, when the original Supreme Court ruling, which set the stage for all this now, it was in the midst of the civil rights movement, and it was very much it was someone who put an ad in the New York Times, and it had some mistakes in it. So they sued based on these honest errors — it's about Martin Luther King, as a matter of fact, how many times he had been arrested, they made an error, they made an error about the Montgomery police about how many actions they had. So they took these honest mistakes of this advertisement in the New York Times, and they sued.

And an Alabama jury awarded these guys like $500,000, which back in 1964, was huge money. So the New York Times fought its way up to the Supreme Court, and the Supreme Court in a landmark decision, which is what we know, the framework under which we have (for) all of our television, all of our radio.

And now, everything we do online has been governed by this case called The New York Times v. Sullivan. Sullivan was the head of the Montgomery police.

And what the what the Supreme Court said was, you know, the First Amendment demands vigorous debate. And sometimes we know that can be really ugly and really unpleasant. But that debate is important.
Bobby Block

And what the Supreme Court said was the First Amendment demands vigorous debate. And sometimes we know that can be really ugly and really unpleasant. But that debate is important.

So as a result, if you are a public figure, celebrity, or a public official, and you are going to sue for defamation, you've got to not only show that the that you have a reputation to defend, that your reputation was harmed, and that the information was false, but you have to show that it wasn't the product of an honest error.

You're talking about "actual malice."

Here's what it was, it was negligent. It was malicious. You either knew that it wasn't that whoever said it or published, it knew that the information was wrong, should have known or the information was wrong, or didn't care whether it was right or wrong.

And that's a deliberately high bar. And they set that bar precisely because as they said, part of what makes this a free society, and what makes the American experience unique is this robust, honest, sometimes ugly debate.

So for 60 years since then, almost, this is what every time a housewife goes on Facebook, angry at her county commission and says the county manager's an idiot, this is what protects that speech. You know, it's fair comment because you're a public figure, you're a public official.

There's a Senate version introduced into the Florida Legislature and what they do is is throw all of that out, which means everybody — because everybody these days is a journalist — everyone publishes, everyone has an opinion. And it throws it all out and it leaves everyone vulnerable to punitive lawsuits.

So it has a terrible chilling effect on this debate that we like now, there are a lot of conservatives who heard Gov. DeSantis come out and say that he thought that the press was too freewheeling, that it wasn't responsible and we needed to bring this to bear in their mind.

They're thinking the publications they don't like, stations they don't like, they think it's CNN, they think it's the Miami Herald, they think it's the Tampa Bay Times.

It's also Fox News, NewsMax, your local conservative radio station. If you think about conservative radio, I think is probably the most vulnerable, because mostly what talk radio does is commentary. And it's important commentary.

I'm not advocating that these people should be sued. On the contrary, their voices are part of that rigorous debate. Some people don't like conservative radio too bad. That's part of the American experience.

It's interesting that you bring that up, because people think this is targeting "liberal media." But the big case right now though, we've all been hearing about, is Dominion Voting Systems versus Fox News.

That's right, and what is Fox News using to defend itself? It's using Times v. Sullivan, the actual malice clause, they are actually (using) the very thing that the legislature wants to throw to the street curb is exactly what they're using.

And if you think about it, you know, I'm also worried about citizen bloggers. I mean, the effect is, here's something that I learned yesterday that I didn't know that's fascinating.

Most people's homeowners owner's insurance includes protection against defamation. Why that is traditionally, I do not know. But it is like for dog bites and that kind of other things. Part of that is...you are covered on your homeowners insurance for defamation, I think 90% of policies I was reading, we already know how difficult home insurance is to get in Florida and how expensive it's becoming, this is going to add another pressure to that.

And that affects obviously more than just the media. There are a lot of people, a lot of conservatives who are very angry at the media, who believe the media should be punished and want to cheer this on.

But in reality, I think that the damage that this will do, precisely to the kind of society that I mean, remember, Putin is Russia (and) does not have Newsmax, Fox, CNN, National Public Radio, and MSNBC, that richness of different voices is a uniquely American experience (and) a uniquely American phenomenon.

And the reason it's unique, it's precisely because we've always believed in the importance of the ability to speak freely about our government and government officials, and to speak freely in the name of a national debate.

Anything that endangers that impacts our quality of involvement, not just at national levels, but think even at your local level with your county commission, your city council, your town, your HOA, all of these things are going to be touched by this.

This is a Florida law, obviously. But there is the possibility that this will get challenged and maybe even make its way up to the US Supreme Court and maybe take on the Sullivan law and revise it on a national basis. Do you feel that happening?

Well, almost certainly. It's going to be challenged, it almost certainly will. But there's another amendment, the 14th Amendment, which basically, amongst its many provisions, is the notion that all citizens from all 50 states should have the same rights under federal law, the states can individually rewrite federal law. So thus, you know that your marriage in Ohio is recognized in Florida or somewhere else.

So what this law does, is it means that the citizens of Florida are no longer held or have the benefits of this landmark court case. So it has to go to the Supreme Court. Now, a lot of people are thinking what you're thinking that that and I've heard experts talk about this, and say that, that this is really, it's like Roe v. Wade, the conservatives believe they have votes in the Supreme Court, and they're going to come up with a law that they know is unconstitutional so the court can have another bite at it.

And the difference is I'm not sure that there's the votes in the Supreme Court to overturn this. From what we know, Clarence Thomas has come out against Times v. Sullivan. And there's two other justices that may have small problems with aspects of it. But by and large, unlike Roe v. Wade, this does not seem to have the votes.

So then the question is, what is the point of it? And I think it's the hallmark of what we're seeing in politics in the state right now is it's it's a kind of punitive politics. It's a kind of virtue signaling politics. Politicians are trying to to showcase their bonafides and their conservative values and what could be more American than taking on the press.

This just doesn't impact the media. This impacts everyone. You have a Facebook account, you're impacted. You participate on Twitter, you could be in trouble. You have a radio show on the weekends and public access show, you could find yourself at the pointy end of a really bad punitive lawsuit.
Bobby Block

The irony, of course, is probably the most un-American thing thing that you could do, which is limiting people's free speech. You know, the First Amendment is unique in the history of global politics and statecraft.

This just doesn't impact the media. This impacts everyone. You have a Facebook account, you're impacted. You participate on Twitter, you could be in trouble. You have a radio show on the weekends and public access show, you could find yourself at the pointy end of a really bad punitive lawsuit.

And one of the things that is really bad, particularly about the House version, the HB 991, is that you don't even have to be wrong, that you get that someone could say something that's 100% true.

But if the plaintiff, if the person bringing the charges says, "this makes me look bad. This was intent. This is all true. But it was intended to make me look bad," you have grounds for a lawsuit.

A lot of now, this is more for journalists, a lot of new stories that we have a lot of major events in this country. In those last 60 years, we've learned about such as Watergate, for instance, the Monica Lewinsky affair, the depredations of Jeffrey Epstein and Harvey Weinstein, they initially all came out because people came out to talk to reporters, but didn't want to give their names. They were frightened. They were frightened about the political aftermath. They were frightened for their jobs. They were frightened for the businesses.

So they came out, they blew the whistle. They spoke the truth. But they asked that their names not be cited in the stories under the law.

Under this proposed law, there's this bill, anything that's anonymous would be deemed by the court in a defamation case to be false. And whereas in this case, and in this state, as in many other states, they have things called journalist shield laws, which prevent them from compelling professional journalists to divulge your sources, recognizes that what sources are to journalists, as confidential informants are to police.

If you were in court, and they say to you, 'you tell us who your sources are?' And if you say 'no,' the court has to deem that information is false, which means that the cards are stacked against you.

Last but not least, the other thing that's really crazy about this bill is many states have tried to try to limit the kinds of nuisance lawsuits that people have. I mean, there's always concerned that courts get clogged up with nuisance lawsuits. So oftentimes what they do is they have the ability to recover fees and court costs.

So let's say you sue me, you said I said something bad about you. And let's say it shows that you were wrong, that you just had a fight with me, you wanted to punish me. So you brought this lawsuit. You lose the lawsuit, you have to pay your lawyers, but you also have to pay the court costs, and you have to pay my lawyers.

That's the way a lot of laws work right now, under this provision, if you sue me, and when I have to pay your lawyers in your court costs, if you sue me and you lose, there's no penalty. I'm stuck with my lawyers fees for a lawsuit that should never have been filed.

And the court costs I have to pay, and you have to pay your lawyer fees. So there's no disincentive to suing. What it does is it creates like a wild west for litigators in lawsuits.... If this bill passes and becomes law, I think the only group that will benefit will be trial lawyers, which I find really interesting that it's a Republican law which is benefiting trial lawyers, which is a group that conservatives hate as much as they do journalists.

It's fascinating, but it's deeply menacing. And it it has the possibility to impact our lives in ways that we can't even imagine, precisely because we're so used to speaking freely.
Copyright 2023 WUSF 89.7. To see more, visit WUSF 89.7.

Steve Newborn is WUSF's assistant news director as well as a reporter and producer at WUSF covering environmental issues and politics in the Tampa Bay area.
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