Warning: Proposed anti-libel legislation would open Florida to ‘libel tourism’

Florida is famous for its tourism industry, hosting visitors from abroad and within the United States. Even state residents travel to view the states’s many attractions.

If the Legislature imposes a new standard for defamation claims upon the state, we could soon greet another type of tourist: libel tourists.

That warning came this week from Rachel Fugate, a First Amendment lawyer from Ocala, during a Senate committee hearing on a bill that would make it easier to sue news organizations, bloggers, social media commenters, and anyone else who ventures a public opinion against someone or some organization that later claims defamation.

“Libel tourism and forum-shopping will definitely increase in the state of Florida. It will become the preferred destination for any libel plaintiff in America, but it also will hurt every citizen of this state,” Fugate said.

Notwithstanding that and other warnings, including that the bill would stifle public debate, harming both the “liberal media” and conservative talk radio, the Judiciary Committee voted on Tuesday to approve the measure during its only substantive committee test.

The party-line 8-3 vote by the Judiciary Committee followed expressions of doubt about the wisdom of the bill (SB 1120) by at least one Republican. Still, the sponsor insisted that everyday people, even officeholders, deserve protection from publication of scurrilous material about them.

“This is not going to stifle anyone’s opinion. This is about somebody printing an untrue statement fact that causes harm,” Jason Brodeur, representing Seminole and part of Orange County, said.

He cited a Justice Abe Fortas dissent in a 1968 case before the Supreme Court:

“The First Amendment is not a shelter for the character assassinator, whether his action is heedless and reckless or deliberate. The First Amendment does not require that we license shotgun attacks on public officials in virtually unlimited open season. The occupation of public officeholder does not forfeit one’s membership in the human race.”

Democrats objected that the bill is unconstitutional under standing precedents.

“I get good and bad reviews all the time in the press, and it’s hard to sometimes take, but whenever it’s bad I try to straighten them out. It doesn’t always work,” said Linda Stewart of Orange County. “But I do think that we need to look at this from a constitutional perspective.”

Precedents targeted

However, the legislation seems designed to present the Florida Supreme Court and U.S. Supreme Courts with a vehicle to overturn those constitutional protections for publishers, most notably the 1964 U.S. Supreme Court ruling in New York Times v. Sullivan.

That case established that for public figures to recover for defamation, they have to demonstrate that published material not only was false and harmful, but that it was published out of “actual malice.” That means “with knowledge that it was false or with reckless disregard of whether it was false or not.”

At least, Republican Alex Andrade of Pensacola, sponsor of similar legislation in the House, wrote that he was targeting these precedents in an earlier, now withdrawn, version of his own bill. (He quickly filed an updated version.) He later denied that was his intention.

Sullivan’s “actual malice” standard rendered it virtually “impossible to bring a defamation claim” if you’re a public figure, Brodeur said.

Both the House and Senate version of this legislation lowers that burden.

First, they tighten the definition of “public figure” to exclude people defending themselves publicly against accusations or granting an interview on a specific topic; public employees except for elected officials or people appointed by elected officials; and people posting internet material that goes viral.

The language is designed to protect people who become “internet famous” and whom the courts have ruled must meet the actual-malice standard required of political leaders and officeholders, Brodeur said.

This means they could win their case by establishing straight negligence, even if the material is of public importance.

But it undermines Supreme Court precedent establishing that people can make themselves public figures by injecting themselves into a public controversy, according to an analysis by the Reporters Committee for Freedom of The Press. Additionally, the court has rejected the idea of states redefining “public figures,” ruling that “the constitutional limits of free expression in the Nation [cannot] vary with state lines.”

Define ‘malice’

To qualify as evidence of actual malice and therefore defamation, the material can be fabricated by the defendant; based on an “unverified anonymous report;” be “so inherently implausible that only a reckless person would have put it into circulation;” or raise “obvious reasons to doubt” its veracity.

Publication of an altered or unaltered photograph, video, or audio recording could prompt a defamation action.

Both bills attack journalists’ use of anonymous sources, such as “Deep Throat,” the FBI official who leaked information to the Washington Post during the Watergate story, even though state law protects their right to keep sources’ identies confidential.

Under the Senate language, for example, if the publication does not identify the source for a defamatory statement, the plaintiff need only prove that the defendant acted negligently in publishing it.

The Senate version lacks House language establishing a presumption that statements by anonymous sources are false.

Both bills would make it harder for a journalist to recover attorney fees in so-called SLAPP actions aimed at early dismissals of frivolous lawsuits designed to constrain exercise of constitutional rights.

Asked whether the language would impede investigative reporting into government wrongdoing, Brodeur thought not, as long as the reporting is fastidious. “This is the just tell the truth and everybody’d fine bill,” he said.

Brodeur compared liability here to that in, say, a traffic accident in which a driver failed to exercise his duty of care.

Libel tourism

Both the House and Senate versions would subject reporters to lawsuits filed in Florida counties where someone accessed the material complained of rather than in the publication’s home jurisdiction; the Senate bill specifies “any county where the defamatory material is accessed by a third party.”

Critics, including Fugate, observed that this language could drag national or other out-of-state publications into Florida’s courts, particularly if they employ reporters within the state.

Fugate, of Ocala, a partner in the Shullman Fugate media law boutique firm, noted that many homeowner insurance policies protect against defamation claims.

“Their prices will skyrocket. Individual bloggers and hyperlocal media will no longer be able to afford insurance to stay in business; and it could even be used against politicians in their social media posts, advertisements, and speeches and debates,” Fugate said.

She complained the bill would badly impede the defense, removing juries’ power to weigh evidence of malice, and that sections of the measure “mandate a finding of actual malice in certain situations or circumstances regardless of the presence of other factors that could mitigate or actually negate a finding of actual malice.”

Additionally, “reasonableness plays no part in the actual-malice standard” under high court precedent, Fugate said. And “police officers would no longer be public figures, hampering citizens’ abilities to comment on law enforcement conduct and activity.” Finally, in limiting fair reporting only to a public figure’s official conduct, the would limit reporting on sexual misconduct that the public is entitled to know about, she said.

Representatives of an array of organizations  also appeared to oppose the bill, including the Florida First Amendment Foundation, the ACLU of Florida, the Foundation for Individual Rights and Expression, the Florida Press Association, Florida NOW, Equality Florida, and Common Cause of Florida.

Boomerang

Members of those organizations warned that, if lawmakers are targeting liberal publishers — the frequent subject of Gov. Ron DeSantis’ ire — they would hit members of their own political faction as well, including bloggers, social media commenters, and conservative and Christian talk radio.

Bobby Block of the First Amendment Foundation quoted from a letter that he said James Schwartzel, owner of a conservative radio station in Southwest Florida, sent to the House warning that the bill would harbinge the “death of conservative talk” in Florida.

A copy of the letter provided to the online publication Florida’s Voice argues the legislation would create “too much liability” for conservative talk radio.

“We will change our conservative programming, and announcers will quit,” Schwartzel wrote. “The devastation will be severe and swift. Republicans will lose one of their most prominent platforms to reach their base forever.”

Republican Colleen Burton, of Polk County, said she was voting for the bill despite qualms. “I just want to make sure we’re not going too far.” She added, “Sometimes, we overprotect.”

“If you’re going to defame people, you certainly have a responsibility to make sure it’s true,” insisted Republican Dennis Baxley, representing Lake and part of Orange County.