DeSantis wanted to rewrite press laws. Conservative media helped kill the effort.
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Florida Gov. Ron DeSantis got most of what he encouraged the state legislature to pass as he gears up for a likely presidential run. Lawmakers swiftly approved a six-week abortion ban, expanded restrictions on discussing sexual orientation and gender identity in school and more money to transport migrants to other states.
But there was one notable exception. His push to rewrite defamation law and challenge press rights failed to advance beyond a committee vote.
Opposition came from an unexpected sector: conservative media and lawmakers.
When it came to backing what First Amendment experts and journalists called a radical rewriting of press freedom laws, DeSantis-friendly outlets responded with a rare show of resistance from media companies that by and large support the governor's agenda.
"He pushed his luck and he was doing so well, pushing everything and getting it," said Javier Manjarres, publisher of the conservative news site the Floridian. "He got stung and a slap on the wrist from his supporters."
The rare defeat for DeSantis (R) comes as donors, activists and supporters have voiced concern in recent weeks that he has embraced extreme positions that could hurt him in a general election. They point to a recently passed abortion ban and his war against Disney. The defamation bill's defeat appears to offer yet more evidence there are limits on how far supporters will go in backing some of the more controversial culture wars-driven targets.
"Once conservative media made their points, there was a quick rethink. I think that tipped the scale," said Susan MacManus, a political analyst and retired University of South Florida professor. "Also, when people started probing the bill, they discovered it wasn't particularly well done."
DeSantis has long had a combative relationship with much of the press. He shuns mainstream news outlets while routinely offering interviews to conservative platforms. His press team is known for launching blistering attacks against reporters on Twitter. At a roundtable earlier this year, DeSantis accused major news companies of "legacy media defamation practices."
"These companies are probably the leading purveyors of disinformation in our entire society," DeSantis said.
He then issued a call to lawmakers to rewrite defamation law. Republicans who hold a supermajority in Florida's legislature complied, drafting bills in both chambers that met the governor's demands. The House bill would have lowered the threshold for defamation and made it easier to sue - and prevail - in libel lawsuits brought against media companies.
In one provision, reporting cited to anonymous sources would have been presumed to be false. Opponents warned the bill would have opened the door to more lawsuits, create a chilling effect for reporting on corruption and also lead to higher libel insurance premiums.
The legislation appeared to go after protections afforded under a landmark 1964 Supreme Court case, New York Times v. Sullivan. For years, conservatives in political and legal circles have called for scaling back the defamation protections - former president Donald Trump famously pledged to "open up" libel law on the campaign trail - and in recent years, Justices Clarence Thomas and Neil M. Gorsuch have signaled a desire to reconsider the standard.
But the effort to codify DeSantis's antagonistic relationship with the press ran into fierce opposition from publishers across the media and political spectrum, who argued it would could put media outlets - particularly smaller ones - out of business with staggering costs.
"They were kind of down to try and 'own the libs,' and didn't realize the boomerang effect it would have on conservative media," said Brendon Leslie, editor in chief of DeSantis-friendly outlet Florida's Voice. "It was a lose-lose situation."
Leslie found himself on the same side of the debate as liberal bloggers, who criticized the bill as unconstitutional. Some in the conservative media opposition feared that as smaller operations, an uptick in lawsuits would put them out of business.
"They don't have the budget or the lawyers to constantly fight frivolous lawsuits," Leslie said.
James Schwartzel, the owner of 92.5 Fox News, a talk-radio station that carries Sean Hannity and other conservative personalities, said the bill would be "the death of conservative talk throughout the state of Florida." First Amendment scholars noted conservative programming often featured commentary and opinion, which could have made them especially vulnerable to legal challenged under the proposed law.
"Talk radio is often the most contentious of all news programs, as the personalities at the center of these shows tackle issues in purposefully provocative and colorful ways," Bobby Block of the Florida First Amendment Foundation said earlier this year.
Behind the scenes, conservative media publishers quietly lobbied lawmakers to warn them about the bill's provisions. Leslie said more conservative media figures planned to go public with criticism if the bill progressed.
"It was kind of like, if we get to this date, this person will speak," said Leslie, who said he had about a half-dozen "big conservative pundits" in the wings.
The proposal also found resistance from some Republican lawmakers, who contended it was unconstitutional, restricts speech and opens the door to frivolous lawsuits.
"This bill is encouraging the state to violate its citizens' fundamental rights as Americans and is not only unpatriotic, but it is not representative of the free state of Florida," U.S. Rep. Cory Mills (R) wrote in a letter to Florida lawmakers. He added it would "create a bonanza for plaintiffs lawyers."
State Rep. Alex Andrade, a Republican who introduced the bill in the Florida House, said critics mischaracterized the legislation by saying it was designed to stifle the press; he said it was meant to help people "clear their names" if they felt they were defamed. He argued the bill failed because legislators were overwhelmed with a busy session and did not have time to thoroughly address it.
"We're a part time legislature. We have 60 days to get everything we want done," Andrade said. "We made the call to kind of sideline it for the rest of the session once it got a little bit too late to commit the resources needed to pass it."
Andrade said there was "no heavy participation" from DeSantis when he crafted the bill, but he did work with the governor's office to make sure it wouldn't be vetoed had it passed. He plans to reintroduce a similar bill next year.
"As a final product I think most people would've liked it," he said.
The state House bill passed its only committee hearing in March, over the objections of numerous free speech and civil rights advocates. At a news conference the last day of the session, DeSantis acknowledged that the proposal "needs a little more work."
"Defamation, it's a thorny issue," he said. "So I think people just started debating, and there were legitimate issues to do."
Under current law, public figures who sue for defamation must prove those publishing false statements either knew they weren't true or recklessly disregarded whether they could be false. The bill would have narrowed who qualifies as a public figure, in effect, lowering the bar to meet the defamation threshold for more people.
The limits of defamation law in the United States were expected to be tested by a blockbuster trial last month against Fox News, which was defending itself against a $1.6 billion libel lawsuit bought by Dominion Voting Systems.
Legal experts said Dominion had an unusually strong case - it is notoriously difficult for public figures and companies to prevail in defamation claims. Fox settled just as the trial began for $787.5 million, but in the lead up to the trial, the network vigorously defended itself by citing the legal protections afforded by Sullivan. Fox faces a similar defamation lawsuit by another voting technology company, which has sued for $2.7 billion.
Lisa Zycherman, deputy legal director and policy counsel for Reporters Committee for Freedom of the Press, said the Florida bill was designed to challenge those long-standing protections.
"It is unmatched in recent memory in terms of its overall scope," she said.
But despite the bill's failure, efforts to curtail defamation protections aren't likely to end. DeSantis "has put certain First Amendment challenges within his sights," Zycherman said. "And I wouldn't expect him to give up on that effort."
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