Don’t muzzle Floridians’ sacred right to free speech
Supporters of a radical bill that would gut the First Amendment rights of Floridians to criticize politicians are leading with a lie. They want to pretend they’re just kicking at big media corporations with deep pockets, behemoths with a reckless disregard for the truth.
“This bill could be entitled Journalism 101,” Rep. Alex Andrade, R-Pensacola, told the House Subcommittee on Civil Justice Tuesday, before the committee advanced the legislation on a 14-4 vote.
The reality is far different. HB 991, presented as an anti-defamation measure, targets the free-speech rights of all Floridians — liberal or conservative, rich or poor, powerful or marginalized. Most importantly, it goes far beyond the so-called legacy media, who can afford the legal firepower to defend themselves. Instead, it will most directly impact those who lack back-channel access to elected officials, and have limited opportunities to speak their mind. Their letters to the editor, their posts on social media, their statements in government meetings, the signs they carry in public protest: These are all they have, outside the ballot box. If Andrade’s bill becomes law, using any of those avenues will put them at risk of financial ruin — in some cases, even if what they are saying is fundamentally true, or simply their opinion.
It is, as public-action groups from the ultra-right Americans for Prosperity to the liberal American Civil Liberties Union have warned, a knife to the heart of free expression. And it is aimed straight at the U.S. Supreme Court, an attempt to gut nearly 60 years of case law protecting free-speech rights and tear apart safeguards held sacred since this nation was founded.
What it does
HB 991 is packed with bad ideas. Here are some of the worst:
It would significantly narrow the definition of “public figure” enshrined in the landmark 1964 U.S. Supreme Court case Times v. Sullivan. That ruling holds that public figures must prove that statements made against them were made with actual malice — that the person whom they claim libeled them was either intentionally lying or showed a reckless disregard for the truth. This standard is important for a few reasons: It discourages lawsuits against accusers merely because of minor mistakes, and it protects the rights of Americans to raise the question of whether an official might be guilty of wrongdoing, in ways that often reach outside the bounds of their official duties (for example, the widespread misdeeds of former Seminole County tax collector Joel Greenberg).
It includes several measures that attach a high price tag to free speech. First, it vastly expands the opportunity for frivolous lawsuits. It also perpetrates one-way attorney fees (where the defendant bears their accuser’s legal bills if they lose, but cannot claim compensation for their own legal costs if they successfully defend themselves) in some cases. And it would allow lawsuits to be brought in any location from which the purportedly false information was available. Because most publications and public commentary end up on the Internet, that means statements made in Key West could be litigated in Panama City, forcing defendants to travel hundreds of miles just to defend themselves. All these measures are clearly intended to make people afraid to speak up in the first place.
It advances legal fictions. It would force judges to regard information from anonymous sources as presumably false, ignoring the reasonable fears that many whistleblowers experience when they come forward with damning evidence. It also declares any allegation that someone has acted against another person or group because of race, sex, sexual orientation, or gender identity is defamation “per se.” That means the defendant could be held liable for damages even if the person they are speaking out against hasn’t suffered in any way beyond stung pride. (As First Amendment Foundation President Bobby Block pointed out, this is far more likely to be weaponized against activists who spew conspiracy theories and conservative-skewed outlets that tangle opinion and news than it is against mainstream media sources.)
A poisonous mistake
There’s far more, but this should be enough for all Floridians to realize what a threat this bill represents to their own liberties.
That may leave them asking: What’s the point? The legislation, which has the blessing of Gov. Ron DeSantis, seems calculated to sow the blend of intimidation and chaos that has come to define his administration. It is, in short, a hot mess — a festering ball of poisonous policy that will scar everything it touches. A few conservative members of the Civil Justice Subcommittee, clearly only now seeing how bad this bill truly is, expressed meek hopes that it could be “fixed” in subsequent committee stops. That’s unlikely to happen: This bill is too broken to fix, and any lawmaker who votes for it will eventually have cause to regret their support.
We can only speculate as to what the real motivation is, but honestly, that’s moot. As former state Rep. Dick Batchelor told committee members, “We’ve been told again and again this session, freedom is worth fighting for.” For state lawmakers, that means standing against their own leadership, standing against this bad bill, and standing up for the rights of all Floridians to speak freely and without fear.