from the well,-fuck-the-first-amendment-I-guess dept

Things are still batshit insane in the Florida legislature. Again. Apparently, the state’s government won’t be satisfied until it’s attempted to violate every single constitutional amendment (except the 2nd!) via godawful bills crafted by godawful people.

The latest insanity is a bill [PDF] written by state senator Jason Brodeur. It aims to completely rewrite defamation law (and completely undermine the First Amendment) so that people like Brodeur can sue anyone who calls them racist, bigoted, transphobic, homophobic, or anything along those lines.

This bill has been crafted by an absolute idiot who either doesn’t know or doesn’t care that court after court after court after court has ruled that statements implying someone is bigoted (no matter what form of bigotry it is) are protected speech. It’s all opinion. These statements aren’t actionable under defamation law because they cannot be proven to be true or false. These statements are made by people who base their opinion on what someone has said or done. And while it’s terrible to be on the receiving end of these accusations if they’re false (or even just misguided), this law has been written solely to silence the critics of people who do engage in what appear to be bigoted actions.

The most obvious beneficiaries of this pile of First Amendment violations would be Republican legislators in Florida, who have spent most of the past few years passing legislation that specifically targets LGBTQ+ residents. So, of course they would love a law that allows them to sue people for calling out their bigotry while simultaneously shifting the burden of proof to defendants. You know, the exact reverse of the legal process. It will also benefit the worst members of their voting bloc, so there’s that added benefit.

The only way to demonstrate how fucked up this bill is is to quote from it generously.

The first thing the law does is strip long-held protections from journalists, allowing them to be sued just as easily as anyone else.

[P]roviding that provisions concerning journalist’s privilege do not apply to defamation claims when the defendant is a professional journalist or media entity

This proposed addition to the state’s statutes appears to rewrite the law to ensure that only plaintiffs in these lawsuits are capable of recovering costs and fees, even if they do not prevail.

770.09 Application of costs and attorney fees in defamation cases.—The fee-shifting provisions of s. 768.79 do not apply to defamation or privacy tort claims. Notwithstanding any other provision of law, a prevailing plaintiff on a defamation or privacy tort claim is entitled to an award of reasonable costs and attorney fees.

Here’s where the bill really gets going. It basically says implying someone is a bigot is not only legally-actionable, but is per se defamation, i.e. presumptively defamatory, which shifts the burden of proof to the person accused of defamation.

(1) A fact finder shall infer actual malice for purposes of a defamation action when:

(a) The defamatory allegation is fabricated by the defendant, is the product of his or her imagination, or is based wholly on an unverified anonymous report;
(b) An allegation is so inherently implausible that only a reckless person would have put it into circulation;
(c) There are obvious reasons to doubt the veracity of the defamatory allegation or the accuracy of an informant’s reports.

There are obvious reasons to doubt the veracity of a report when:
1. There is sufficient contrary evidence that was known to or should have been known to the defendant after a reasonable investigation; or
2. The report is inherently improbable or implausible on its face; or
(d) The defendant willfully failed to validate, corroborate, or otherwise verify the defamatory allegation.

Not only would the law make it per se defamation to express your belief that someone is bigoted or has acted in a bigoted way, but the law deprives defendants of affirmative defenses, and, indeed any defenses at all, including that most famous of defenses: the goddamn First Amendment.

(2) An allegation that the plaintiff has discriminated against another person or group because of their race, sex, sexual orientation, or gender identity constitutes defamation per se.
(a) A defendant cannot prove the truth of an allegation of discrimination with respect to sexual orientation or gender identity by citing a plaintiff’s constitutionally protected religious expression or beliefs.
(b) A defendant cannot prove the truth of an allegation of discrimination with respect to sexual orientation or gender identity by citing a plaintiff’s scientific beliefs.

The end result of this stacked deck is libel cases where plaintiffs sued people over protected speech and have an extremely high chance of walking away with “statutory damages of at least $35,000.”

Then the bill moves on to pretending New York Times v. Sullivan never happened:

A public figure does not need to show actual malice to prevail in a defamation cause of action when the allegation does not relate to the reason for his or her public status.

And from there, the chilling effect gets even more amped up by making “editing” of new articles, reports, and quotes from sources part of the libel process (as it were).

(3) Editing any form of media so that it attributes something false or leads a reasonable viewer to believe something false about a plaintiff may give rise to a defamation claim for false light.

What the actual fuck. I mean, this basically turns every lawsuit against a journalist or op-ed writer into a defamation slam dunk.

Plaintiff: Was this article edited in any way?
Journalist defendant: Of course. Every article goes through an editing process.
Plaintiff: I rest my case.

Unbelievably, the bill doesn’t attempt to erase the state’s anti-SLAPP law. But that’s probably because the bill turns SLAPP suits into wins for people who want to silence their critics by taking them to court for criticizing them. As far as this law is concerned, any action brought under it is a legitimate defamation lawsuit, and not something less legitimate that might be subject to the existing anti-SLAPP law.

This bill pretends the First Amendment does not exist. It operates in a vacuum where decades of Supreme Court precedent don’t immediately invalidate pretty much every word of this insipid bit of legislative garbage. If the legislature is stupid enough to pass this (it might be!) and Governor Ron DeSantis is dumb enough to sign it (ALL SIGNS POINT TO YES), it’s going to get laughed out of court the moment a judge lays eyes on it. If the intention is to make the Florida legislature look even more ridiculous than it already does, mission accomplished.

Filed Under: 1st amendment, actual malice, defamation, defamation per se, false light, florida, free speech, jason brodeur