Mark Lane: Radical rewrite of libel law signals open season on free speech

With Gov. Ron DeSantis getting ready to run for president and Republicans holding supermajorities in the Legislature, your elected representatives are faced with deciding who to crack down on first. Public school teachers? College professors and students? School librarians? The LGBT community? Immigrants? The media? Local governments? Labor unions?

Oh, how about everybody all at once?

As the Florida Legislature starts its session, DeSantis has pledged a war on CRT, ESG, DEI and more initialisms certain to be named later. In the Free State of Florida, some groups are apparently acting a little too free and your Legislature is at one with the governor’s get-tough message. “You ain’t seen nothing yet,” was the money quote in the governor’s State of the State Address, and both his supporters and opponents believe him.

Given what I do, it’s natural that the get-tough-on-the-media bills grabbed by attention.

A bill to allow ― no, make that encourage ―public officials to sue the media has been filed with loud support from the governor. And a howlingly unconstitutional bill to force internet political bloggers to register with the state and file regular financial disclosure statements has been filed by Sen. Jason Brodeur, R-Lake Mary.

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

Brodeur’s feelings toward the press may have been shaped by coverage his narrow electoral victory in 2020 that had been aided by a fake candidate operating with dark money.

Brodeur said the bill (SB 1316)  is aimed at pay-to-play sites, and to be sure, it excludes legacy newspaper sites. Still, a plain-English reading of the bill suggests a far broader blogger registry could be authorized.

More:Here's what's in Sen. Jason Brodeur's bill

Fortunately, the plan for a Florida Registry of Bloggers and Internet Wise Guys looks like a step too far. Both the governor and the House speaker have disassociated themselves from the idea. But like so many bad ideas, look for its return in future sessions.

Still, the governor is full-on in support of another anti-press bill filed by Brodeur in the Senate (SB 1220) and a similar bill (HB 991) filed in the House by Rep. Alex Andrade, R-Pensacola. Those bills would upend almost 60 years of media law.

Under current law, it’s hard for public officials to sue media outlets for libel. Since 1964, public figures need to show the information they object to is false and was put out with “actual malice.” That is, as the U.S. Supreme Court defined it, “knowledge that it was false or with reckless disregard of whether it was false or not.” A high bar.

Why such a high bar? Because otherwise public officials could use private libel actions to silence critics. And they have.

This ruling grew out of the civil rights struggles of the 1960s and an attempt by segregationists to use libel laws to silence the national press, harass Martin Luther King, and crush a growing and assertive civil rights movement. The kind of history Florida teachers are being warned about teaching.

In 1960, a group called the Committee to Defend Martin Luther King and the Struggle for Freedom in the South took out a fund-raising ad in The New York Times criticizing actions of the Montgomery, Alabama, police. It had some minor inaccuracies (King had been arrested four times at that point not seven, for example) but was generally on target.

Lester Sullivan, Montgomery’s police commissioner, took umbrage and sued for libel. No, his name never appeared in the paid ad. But criticize the police and you are, by implication, criticizing him, or so he successfully argued in court.

After a trial in which parties were seated by race, the plaintiff’s attorney referred to the defendants with the N-word and the judge talked about “white man’s justice,” an all-White jury awarded Sullivan $500,000 for the hurt he experienced ($5 million in today’s money). This was hardly the only case of its kind in Alabama at that time.

The U.S. Supreme Court overturned that verdict in a decision that has stood the test of time.

DeSantis and legislators, however, want to return to pre-Sullivan days and again allow politicians to use the courts to bankrupt and silence critics, activists and the independent media.

Aimed squarely at overturning New York Times Co. v. Sullivan, both bills dramatically restrict who can be considered a public figure for lawsuit purposes and define all kinds of speech as automatically malicious and defamatory.

The House version even creates a kind special bigots’ protection since “an allegation that the plaintiff has discriminated against another person or group because of their race, sex, sexual orientation, or gender identity constitutes defamation per se.” (Wouldn’t Sullivan have loved that!) It also awards attorneys’ fees to people who successfully sue but not to parties who successfully defend against baseless lawsuits.

It’s easy to dismiss this as an attack on Big Media. It’s not. Any blogger, political commentator, keyboard soapboxer, political or environmental activist could be sued into silence by deep-pocket interests under this radical rewrite of defamation law.

I’m old enough to remember when Republicans opposed frivolous lawsuits. But times have changed, and as the governor reminded us, you ain’t seen nothing yet.

Mark Lane is a News-Journal columnist. His email is mlanewrites@gmail.com.

This article originally appeared on The Daytona Beach News-Journal: Mark Lane: Will rewrite of libel law doom free speech in Florida?