Defamation bills strip free speech protections from all

Gov. Ron DeSantis’ 2023 legislative agenda includes a pair of defamation bills that promise to upend Floridians’ First Amendment rights and freeze public discourse. Although DeSantis claims that they advocate for “the little guy,” the opposite is true. The bills will make it easier for powerful entities to deploy defamation suits to silence dissent in Florida.

To gain support for his measures, DeSantis professes that the legislation does not benefit the powerful. But at a staged roundtable forum on defamation last month in Hialeah Gardens, he argued for overturning the unanimous U.S. Supreme Court decision in New York Times Co. v. Sullivan (1964), parroting the same arguments that Donald Trump has made in federal court in Fort Lauderdale in a defamation suit against CNN over its 2020 election coverage.

In Sullivan, the Supreme Court ruled that protecting “uninhibited, robust, and wide-open” debate, including “unpleasantly sharp attacks on government and public officials,” is essential to preserving a democracy. Whereas Sullivan’s holding applies to public figures like Trump and himself, DeSantis alleges that “in Florida, we want to stand up for the little guy against these massive media conglomerates.”

DeSantis is not broadcasting that House Bill 991 and Senate Bill 1220 weaken Florida’s law against SLAPPs (Strategic Lawsuits Against Public Participation) — meritless lawsuits filed by corporate or governmental entities to silence and intimidate people who exercise their First Amendment rights in connection with public issues.

They do not merely target big media. They threaten the First Amendment rights of all Floridians.

In 2015, Republican Gov. Rick Scott expanded Florida’s anti-SLAPP law. It is a resoundingly popular bipartisan measure that passed both houses of the Florida Legislature with a combined House-Senate vote of 154-1. The law expressly prohibits SLAPPs in Florida as inconsistent with Florida’s fundamental public policy of protecting free speech and aims to “assure the continuation of representative government in this state.”

Florida’s anti-SLAPP law has broad bipartisan appeal because it protects the rights of all Floridians, irrespective of political leanings. It affirms that a commitment to robust public discourse and debate is vital to a democracy.

SLAPP targets include everyday people exercising their First Amendment rights, such as parents voicing their opinions at school board meetings or residents objecting to local development on social media.

To protect “the right in Florida to exercise the rights of free speech in connection with public issues, and the rights to peacefully assemble, instruct representatives, and petition for redress of grievances before the various governmental entities of this state,” Florida gives a SLAPP target an expeditious way out of a meritless, expensive lawsuit with a right to file a motion for dismissal or summary judgment, a prompt hearing on the motion, damages and attorney’s fees to the party that prevails on the motion.

Prevailing party attorney’s fees are critical to Florida’s anti-SLAPP law because they enable a SLAPP target to obtain counsel and they remove the incentive for abusive, costly lawsuits that the law prohibits. DeSantis and the bills’ sponsors plan to remove that safeguard.

Outrageously, HB 991 would provide prevailing party attorney’s fees only to the powerful corporate or governmental entity that filed the SLAPP lawsuit, but not to the SLAPP target that the law is in place to protect. By comparison, SB 1220 would permit prevailing party attorney’s fees for both parties, but would impose an unreasonable additional evidentiary burden, requiring targets of these frivolous lawsuits to show that their “statement was not negligently made.” Both bills unduly prejudice the SLAPP target and undermine the law’s intended constitutional protections.

There is no good reason for Florida’s legislators to weaken Florida’s popular, bipartisan anti-SLAPP law. Like too many bills this session, SLAPPs ostensibly redress wrongs, but their true purpose is to suppress dissent and civic participation. SLAPPs are anti-democratic. They conflict with well-established Florida public policy upholding free speech and debate.

The governor’s roundtable on defamation spotlighted truth and accountability. Sitting as a news anchor before a widescreen media backdrop with the word “TRUTH” displayed behind him, he said “the people here trust me a hell of a lot more than they trust the media.” When a panelist mentioned SLAPPs, the governor pivoted to another topic. He’s keeping mum about his support of SLAPPs, but it’s in the bills.

Floridians are counting on our legislators to uphold truth and accountability and reject these affronts to our First Amendment rights.

By Ali Friedberg Tal-mason