Willful defamation or negligence?
Rep. Alex Andrade (R, Pensacola) raised the case of Nicholas Sandman. In 2017, the then 16-year-old was in Washington DC when he and a group of his peers encountered protesters. A viral social media video showed Sandman, wearing a MAGA hat, standing in front of Native American elder Nathan Phillips and appearing to smile. Phillips told reporters Sandman blocked his path. Sandmann said he was standing still to defuse the situation. The incident was widely covered by national news outlets and the 16-year-old received backlash. He later sued several media outlets for defamation. He lost some cases and settled others – most notably with the Washington Post. Sandmann was not a public figure before that moment and Andrade says Sandmann should never have been put in such a public limelight.
“In defending against the lawsuit filed by Sandman, many of the outlets attempted to argue that he was a public figure. But he was a public figure simply by the fact that he was defamed. The fact that an argument can be made at all is just something I find outrageous,” Andrade said.
Andrade’s bill would narrow the legal definition of a public figure and exclude people made famous by a viral video. The measure would broaden the definition of who counts as a journalist. It would also automatically consider as false any statements made by an anonymous source in cases of defamation and attempts to coerce journalists to reveal their sources. The law also prevents anyone from making claims of racism, bigotry, and discrimination against an issue if those positions are part of that person’s scientific or religious beliefs. Critics argue the language of the bill is too broad and would result in silencing criticism of traditional public figures such as government officials. There are also concerns that the measure is unconstitutional. Andrade doesn’t see it that way.
“I think some of the debate surrounding this law misses the point. We assume defamation. To even be a part of this discussion, someone would have had to make a false statement about you that damaged your reputation. There are many cases where ordinary people have suddenly become public figures due to the power of social media. Some of this needs to be corrected and addressed.”
The proposal has sparked consternation from traditional media organizations, academic groups and even the non-partisan Foundation for Independent Rights and Expression. FIRE has often settled with Republicans on things like banning free speech zones on college campuses. The organization is now concerned that any speech that a public figure believes to portray negatively could be grounds for a lawsuit under the bill – even if that speech was made by a private individual.
“You have a private individual who makes an allegation, whether it’s a letter to the editor, an interview, or a post on social media… and that public figure is suing you for alleged defamation — but no longer has to prove actual malice, what.” [causes] Many lawsuits are being dismissed — now those cases can go ahead and become more costly for the people who have to defend themselves, said FIRE’s Joe Cohn, the organization’s legislative and policy director.
A stab in the heart of 1A
“What is particularly worrying about this bill is that it is neither liberal nor conservative, right or left. It’s a blunt instrument. It affects everyone equally. Perhaps conservative and Christian media are the most vulnerable to this law,” said Bobby Block, executive director of the Florida First Amendment Foundation.
The bill comes after years of increased pressure and public anger directed at media in all forms – from traditional news outlets to social media to entertainment, bloggers and so on. Critics on the right argue that there is a liberal bias and have railed against what they see as a culture that views any form of criticism as racist. Critics on the left believe that traditional media are old-fashioned in their assessments, and do not adequately examine or question discrimination, classism and other “isms” or are guilty of feeding false narratives.
Then there is disinformation – false information intended to mislead on purpose. This can usually be found online at outlets posing as legitimate. But the solution to the cultural rifts that play out in all media, according to Block, is not this bill.
“I think a lot of people who are frustrated with the traditional media, which reflects an increasingly ugly national discourse, might say, ‘Right, I feel good, the media is being punished.’ In reality, the media is being silenced or intimidated or worse.”
Andrade’s bill does not specifically say that it will appeal the US Supreme Court’s New York Times vs. Sullivan ruling. However, an earlier version of the bill, tabled and withdrawn a day earlier, does. The Sullivan judgment has long been a standard used to protect journalists from frivolous trials. It states that one had to act with actual malice – Florida law overrides that standard. Andrade calls his law “Journalism 101”.
“Everyone sometimes runs the risk of misunderstanding facts. All the bill says in these circumstances is that if you post something that turns out to be false, you must be able to show that you acted in good faith, that you tried to verify them information,” he said.
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Meanwhile, Senator Jason Brodeur (R, Lake Mary) is bringing a watered-down version of the bill to the Senate. His measure follows similar themes as Andrade’s proposal, but does not include language about genuinely held religious or scientific beliefs as a defense against allegations of racism and discrimination, even if those claims are true. Brodeur also has another bill that would require people, such as bloggers, who write about state officials and get paid for their work to register with the state. In a statement to Florida Politics, the senator compared bloggers to lobbyists and said they must register just like lobbyists. The bill would not apply to websites operated by newspapers or other traditional outlets.
Gov. Ron DeSantis hosted a roundtable on media libel just weeks before Andrade and Brodeur filed their bills. A similar one was circulated last year but never submitted. This year is very different as Florida Republicans hold all state offices and a supermajority in the Florida Legislature.
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