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Wednesday, May 29, 2024

Florida bill could lower the bar for defamation lawsuits against media organizations

The legislation is currently moving through the Florida House

Florida media organizations could potentially face increased legal pushback under a recently proposed bill allowing public figures to more easily sue for defamation. 

House Bill 757 titled “Defamation, False Light, and Unauthorized Publication of Name or Likeness” seeks to lower the bar for public figures filing these lawsuits. Proposed by Rep. Alex Andrade, R-Pensacola, the initiative would widen the scope of actual malice, work to discredit anonymous sources, limit the use of artificial intelligence, establish 60-day veracity hearings and authorize venue expansion. 

Andrade presented the bill to the House Civil Justice Subcommittee Jan. 18, arguing HB 757 would act as a necessary protection for public figures. 

“Media is not engaging in sufficient self-regulation,” Andrade said in the meeting. “By expecting people to act in good faith, they’re allowed to get it wrong, but what they’re not allowed to do is act so recklessly that they publish something that could harm someone’s reputation without doing bare minimum utility.” 

The subcommittee voted in favor of the bill, which then passed it to the Regulatory Reform & Economic Development Subcommittee for review Jan. 22.

The bill describes defamation as “libel, slander, invasion of privacy, or any other tort founded upon any single publication, exhibition or utterance,” which doesn’t include any statement considered an opinion. 

However, Senate Bill 1780, the measure’s companion bill proposed by Sen. Jason Brodeur, R-Lake Mary, goes further to include any allegation that a public figure has displayed discrimination concerning race, sex, sexual orientation or gender identity as “defamation per se.” This would leave the speaker or publisher of any such claims liable for at least $35,000 of statutory damages in addition to court costs. 

New York Times v. Sullivan, a 1964 landmark United States Supreme Court Case, ruled that to prove libel, a public figure must produce evidence that an accused defamatory statement was published with “actual malice,” a term described by the U.S. Courts as “false or with reckless disregard for the truth.” The decision was intended to limit the ability of public officials to sue for defamation. 

HB 757 would widen the scope of actual malice in Florida if passed, which would lower the bar to sue, undermine decades of judicial precedent and open the floodgates for frivolous lawsuits against inconvenient truths, said First Amendment Foundation Executive Director Bobby Block. 

“Florida will become the libel tourism destination of the United States,” Block said. “We’ll see a period of lawsuits coming from all sides.” 

While sponsors of the bill emphasized that truthful, unbiased reporting should protect media organizations from lawsuits, he said that doesn’t change that reporters present facts as they develop, which could be subject to change over time. 

“The truth is a hard sell and has always been a hard sell,” he said. 

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Instances involving the difference between defamation and false light are also examined in the bill, he said. 

The Cornell Law School Legal Information Institute defines defamation as causing damage to a person’s reputation, while false light concerns statements objectionable by one or more “average” people that cause personal harm, including emotional distress. 

Unlike its Senate companion bill, the measure would also limit the use of artificial intelligence to create or alter media if passed, casting related claims under false light and rendering those involved in the AI changes liable. 

As a public figure who has seen himself in altered media before, Rep. Michael Beltran, R-Riverview, said editing photographs without open disclosure is in poor taste and should be addressed. 

If enacted, an amendment to HB 757 would implement the practice of 60-day veracity hearings. A ruling would be made on whether a statement is fact or opinion and if that fact can be effectively proven within 60 days if requested. 

While opposers of the bill felt 60 days was an unrealistic time frame, Beltran said lawsuits would be dismissed at a very early stage if an accused defamatory statement was published with even just an ounce of truth. 

“I think there’s more protection against frivolous lawsuits under this bill than there is under current law,” he said. 

According to the bill text, if a public figure could prove an accused defamatory statement provided by an anonymous source was false, there would be a “rebuttable presumption” that the publisher automatically acted with actual malice.

It’s difficult to prove the reliability of anonymous sources, Beltran said, and media organizations should corroborate for that. 

However, ACLU of Florida Legislative Director and Senior Policy Counsel Kara Gross said if passed, the provision would threaten journalists with either outing their trusted sources or facing liability. 

“This will have an incredibly chilling effect on news reporting,” she said. 

Additionally, HB 757 would approve venue expansion, allowing lawsuits to be filed in any Florida county where the accused defamatory information could be viewed through the internet, television or broadcast. This could allow a public figure to pick and choose specific jurisdictions to file a suit under. 

Gross said the vague language of the bill would allow its impact to expand beyond news media and journalists if enacted. 

“Private citizens who speak out on social media could also be caught up in these defamation lawsuits,” she said. 

News organizations and journalists shouldn’t be allowed to publish blatantly false statements, said Ayisha Beauge, an 18-year-old UF statistics freshman. However, she said matters of opinion shouldn’t warrant a lawsuit. 

“If you want to give everyone free speech, you’re going to have people say stuff that you don’t necessarily support or agree with,” she said. 

She said maintaining the credibility of anonymous sources and protecting their identities is critical to ensuring they don’t encounter threats to their employment or personal safety for coming forward with sensitive information. 

HB 757 didn’t have her support. 

“I feel like politicians don’t really get a say in how people view them or what people think about them,” Beauge said. “It’s restricting our free speech.” 

Contact Rylan DiGiacomo-Rapp at rdigiacomo-rapp@alligator.org. Follow her on X @rylan_digirapp.

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Rylan DiGiacomo-Rapp

Rylan DiGiacomo-Rapp is a second-year journalism and environmental science major covering enterprise politics. She previously worked as a metro news assistant. Outside of the newsroom, you can usually find her haunting local music venues.


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