'Censorship effort:' Could Florida defamation lawsuit bill erase LGBTQ community from public discourse?

Pensacola's state Rep. Alex Andrade's defamation bill could be weaponized to suppress political speech by opening up a torrent of lawsuits if it becomes law, raising red flags for advocates of LGBTQ and racial issues.

Florida Republicans have lined up behind a bill that would rewrite Florida's defamation law, making it easier to sue anyone who makes or publishes a defamatory, false statement against public figures.

Two versions of the bill are almost identical, a Senate version (SB 1220) and a House version (HB 991), and free speech advocates have roundly condemned both.

However, the House version, sponsored by Andrade, goes further than the Senate version with a provision that says plaintiffs in defamation lawsuits don't have to prove actual damages if their claim is based on someone making false allegations of discrimination based on race or sex, sexual orientation or gender identity.

That provision adds that anyone defending such a defamation lawsuit cannot use a person's religious or scientific beliefs to prove an allegation of discrimination concerning sexual orientation or gender identity.

'Disaster for free speech': Florida defamation, libel bill alarms advocates

Voting company defamation: Delaware trial in the Dominion lawsuit against Fox delayed

'Wheel of Fugitive' suit: Man wants to move case after judges with ties to sheriff recuse

When the bill was first proposed, it kicked off a firestorm of viral misinformation on social media that it would be illegal to call someone homophobic or transphobic in Florida. While those claims are false, advocates say the bill works to create the legal avenues for wealthy litigants to shut down public conversations on those topics.

"The bill discourages anyone from calling out racism, sexism, homophobia or transphobia by creating substantial new penalties and automatically presuming under law that those allegations are false," Jon Harris Maurer, public policy director at Equality Florida, told the News Journal.

Equality Florida is a civil rights organization that advocates for the equality of the LGBTQ community at the state level.

"We're in a period of very heated and politicized rhetoric around issues of sexual orientation, gender identity and race," Harris Maurer said. "This bill will discourage people from having critical conversations about the motives for these policies."

Death for rape: Though likely unconstitutional, Florida child rape death penalty bill makes headway

Leave signs and insults at home: Florida school board could clamp down on speakers

Andrade brushes off the criticism of the bill, saying that his bill won't change the definition of defamation.

"Name calling is not the same as defamation, and their ability to call people they don't like names is not being jeopardized by this bill," Andrade said.

Andrade said the claim would have to involve an actual discrimination allegation that would have other facts associated with it.

Other attorneys who have analyzed the bill disagree.

Lili Levi, a law professor at the University of Miami who specializes in media law, said the bill fails to define discrimination leaving it open to a broad interpretation that could be used by a court to uphold defamation claims that under current standards would be considered political speech.

"Suppose that I say that the chairman of the board of trustees of a public university pushes racist policies and discriminates against African Americans, or I say that the pastor of a sort of worldwide evangelical church based in the United States is homophobic, discriminates against gay people or say a legislator that sponsors a bill that makes gender reassignment surgery illegal or something like that (is transphobic)," Levi said. "Each of those statements could invite immediately a lawsuit for defamation, for lots of money, and if they win they get at least $35,000 from me as well as their attorneys fees."

Harris Maurer said the bill is the latest attempt to erase the LGBTQ community from public discourse.

"We see this as part of a broader censorship effort from the DeSantis administration," Harris Maurer said. "Having public discourse is critical to a free democracy."

The fact that the bill treats racial or gender discrimination differently from all other types of defamation for public officials is evidence that the bill appears to be aimed at suppressing that type of political speech.

"We have to be able to acknowledge where racism, sexism, homophobia or transphobia occurs to be able to address them," Harris Maurer said. "We know that these issues do occur, and we shouldn't be using law to discourage the public from being able to address and remedy those issues."

Levi pointed out that the bill elevates claims about racism and sexual orientation above all other potential defamation claims, such as being called a criminal, a rapist or a terrorist.

"You have an easier time as a plaintiff under this bill in saying than somebody accused you of being a racist, then if they accused you of being a war criminal," Levi said.

Florida travel advisory: LGBTQ, immigrant advocacy groups issue Florida travel advisory over DeSantis policies

Andrade's bill applies to media organizations and statements published by individuals on social media or other websites.

"I think that this is a very dangerous bill because it's going to likely really to create a very major chilling effect on political speech," Levi said.

New York Times v. Sullivan

The bill appears to be written to allow a judge to create a carve-out under the existing U.S. Supreme Court case New York Times. V. Sullivan that has set the standards for defamation law and the First Amendment since it was decided in 1964.

That case was a landmark case because the Supreme Court recognized that lawsuits could be used to suppress free speech and it put barriers in place to ensure freedom of the press was protected while creating an avenue for egregious defamation cases involving public figures.

"The roadblocks that were put in front of people to prevent these kinds of lawsuits are now in one fell swoop being all taken away," said Bobby Block, executive director of the First Amendment Foundation, a non-profit, non-partisan group that is dedicated to advocating for free speech rights and defending Florida's Sunshine Law.

Under that case, public figures, such as politicians or celebrities, must meet a higher burden to prove a false statement was defamatory to them in that whoever made or wrote the statement was acting with "actual malice" that they knew the statement was false and published it anyway to harm the subject of the statement.

Andrade's bill lists situations in which a judge should presume actual malice if the story is based on an unverified anonymous report. Another section of the bill declares that a judge should presume any statement from an anonymous source is false, creating a Catch-22 for stories that rely on multiple independent, anonymous sources for verification, which isn't uncommon about national-level political or national security stories.

"I understand that the governor and a lot of people are upset with the media," Block said. "We've always been pissed off at the media since the country was founded. The country was founded on anonymous sources. Think about the tracts of the Federalist Papers that were being argued and were handed out on street corners, most of them were written anonymously."

Andrade has said he filed the bill to reform defamation law in the state, arguing the current standards make it almost impossible to bring a successful defamation claim when someone has been lied about in the media.

"Courts in Florida have stated that an extreme departure from professional journalistic standards is not sufficient evidence to prove actual malice," Andrade said, speaking to the House Civil Justice Subcommittee in March. "So a journalist right now can say, 'Your honor, I didn't defame them with actual malice. I'm just incompetent.' And they would win the lawsuit. I would lose my defamation claim even though at the outset, I can prove that the statement was false, and I suffered harm from it."

Block said changing the standard set by the New York Times v. Sullivan case would undermine freedom of speech at a time when society cannot agree on what "truth" is.

"We believe in what the Supreme Court said in the 1964 landmark case, that the First Amendment demands robust national debate and dialogue," Block said. "And we know that that dialogue is sometimes not pretty, and it's sometimes ugly, and sometimes it's offensive. But that's what makes us as Americans stand out from the other nations of the world. This ability to be able to have all these opinions out there. So, we believe that this bill is going to undermine all of that."

Status of the bills

After making quick progress through the first committees, the progress of the bills has slowed.

Andrade's bill has been pending before the House Judiciary Committee since March 14, and the Senate version of the bill, which lacks the discrimination language, was set to go before the Senate Rules Committee on Wednesday but was marked as "temporarily postponed" and not heard during the meeting.

Most of the recent opposition has come from Andrade's party, who have said the bill will backfire on conservative media outlets.

Former Florida Congressman Trey Radel wrote an opinion piece for the conservative news network Newsmax saying Andrade's bill threatens free speech in general and makes conservative commentators easy targets for people willing to go to court.

Block said he was also worried the bill would put many conservative radio stations in Florida out of business as the cost of defending lawsuits rises.

"We're concerned about all free speech, but we're really worried that conservative outlets are going to end up taking the heat the worst, precisely because of the format of the show," Block said. "They're riffing, it's opinion, they're talking about the news. And remember, we now live in a society where no one agrees on what truth is anymore."

This article originally appeared on Pensacola News Journal: Florida defamation bill: Advocates worry it could suppress speech