Proposed Florida defamation legislation would make it easier for leftwing lawyers to sue conservative media into oblivion. It could also prevent vital anonymous sources from coming forward with information.
If passed, HB 757, reports the Tallahassee Democrat, will “creat[e] a presumption that anyone publishing a false statement that relied on an anonymous source, acted with ‘actual malice,’ a key legal hurdle for public figures to win defamation lawsuits.”
At the time of publication, the House bill’s sponsor, Pensacola Republican Rep. Alex Andrade, had not returned The Federalist’s request for comment.
Actual malice is a legal hurdle public figures must over overcome when attempting to prove in court that they have been libeled. To have acted with actual malice, someone must know something he or she publicized was false or have acted with “reckless disregard” for the truth.
Should the proposed legislation become law, upon receipt of a complaint, Florida courts “shall conduct an evidentiary hearing to determine” whether potentially libelous content is being presented as a “statement of fact or an opinion.”
HB 757 would allow defamation lawsuits to be filed in “any county” across the state for potentially libelous content posted online and “any county in which the material was accessed” for “material broadcast over radio or television.” The bill further states that if defamatory content is published online, such as an “article or a broadcast,” that content “must be permanently removed from the Internet” within 10 days of notifying its publisher.
In Florida, libel is a first-degree misdemeanor. Conviction can result in both fines and jail time.
On its face, HB 757 sounds like it could give conservatives a way to hold legacy media accountable for its unceasing lies and mistreatment of Republican officials. Recall how anonymous sourcing was used to launder the Russia collusion hoax into American life.
In this instance, lowering the virtually insurmountable standard of actual malice would be a net positive. The people who do irreparable damage to the nation could be held accountable for their lies, and members of the legacy media would be forced to be marginally less biased in their reporting.
But declaring open season on the press will most certainly have a chilling effect on free speech and hurt conservative media. The bill stipulates, “If a public figure plaintiff can establish that a published statement is false and that the publisher relied on an anonymous source for the statement, there is a rebuttable presumption that the publisher acted with actual malice in publishing the statement.” So, truthful anonymous sourcing is protected, right? Wrong.
Consider the left’s fetish for lawfare that drags every single aspect of politics into court. Christians, entrepreneurs, and our republican form of government, just to name a few, are all under attack because establishment leftists can force institutions, behavior, and laws to change through litigation.
[Read: How The Left Is Weaponizing The American Legal System]
Once the left sees an opening for attack, they will take it. Creating an avenue through which the left’s vast nonprofit apparatus could more-or-less litigate anything anonymously sourced could tie conservative media up in the courts, draining them of critical resources. Strategic lawsuits against public participation (SLAPP) — suits used to intimidate and silence people — will undoubtedly be brought forth despite the state’s broad anti-SLAPP protections.
The point of these suits is to drain resources and silence critics. Any legal victory or precedent set that benefits the plaintiff is a second-order success.
Further, HB 757 overwhelmingly advantages well-funded plaintiffs, according to Florida radio host Drew Steele, by “largely eliminate[ing] the requirement that unsuccessful plaintiffs pay defendant’s legal costs” while also allowing them to choose politically friendly venues by “forum shopping” venues.
The bill is also likely to create an environment where anonymous sources are less likely to come forward. In public figure defamation suits, if specific criteria are met, a court can compel journalists and publishers to disclose the identity of anonymous sources since there is no binding legal precedent affirming the inverse.
Several states, such as Florida, have shield laws enabling journalists to conceal the identity of their sources, but this privilege is not absolute. If identifying an anonymous source is central to a plaintiff’s case, and the plaintiff demonstrates a compelling need for this information, an anonymous source could be exposed.
The proposed presumption of actual malice could lead to reporters independently revealing the identity of anonymous sources to keep themselves out of legal trouble. Under these circumstances, why would an anonymous source, like a whistleblower, come forward?
HB 757 puts the people charged with fighting corruption in the public square at risk by jeopardizing anonymous sourcing and exposing non-legacy media to lawfare.
Samuel Mangold-Lenett is a staff editor at The Federalist. His writing has been featured in the Daily Wire, Townhall, The American Spectator, and other outlets. He is a 2022 Claremont Institute Publius Fellow. Follow him on Twitter @smlenett.
Comments are closed.