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When Florida Gov. Ron DeSantis pushed the Florida legislature to join his crusade against “wokeness” in public schools, First Amendment experts warned that like many of the anti-“critical race theory” laws around the country, the bills were written so broadly that they could be reasonably interpreted as de facto prohibition on anything other than specifically state-sanctioned speech.
Even critics of “wokeness” have argued that prohibitions on “divisive concepts” and definitions of “truth” are subjective, vague, and destined to sweep up far more content than was originally intended.
And wouldn’t you know it, now that schools across Florida are removing innocuous books because they bump up against certain “divisive” interpretations of gender, sexuality, and racism that could conceivably run afoul of Florida law—DeSantis is crying, “Hoax!”
The governor and his gaggle of sycophantic right-wing media influencers insist the book bans were only meant to go after the “porn” in books like Gender Queer or the “racism” in books like How to Be an Antiracist—and that most of the hundreds of other books facing state censorship were mistakenly included in the purge, or deliberately removed by educators to make DeSantis look bad.
Team DeSantis wants to have it both ways. They deny book bans are even happening, but the erstwhile small government, free marketplace of ideas-supporting conservatives are also openly contemptuous of the free inquiry and open debate trappings of liberal democracy. Better to ban the “bad” ideas than debate them, defeat them, or teach them in a larger context. (But don’t call it a ban, which they contend in the face of all evidence is a “hoax.”)
(There's not enough space in this column to get into DeSantis’ illiberal War on Disney, which New York's Jonathan Chait summarized thusly: “First, DeSantis established the principle that he can and will use the power of the state to punish private firms that exercise their First Amendment right to criticize his positions. Now he is promising to continue exerting state power to pressure the firm to produce content that comports with his own ideological agenda.”)
And lest you think Florida Republicans are done trammeling on free speech, a new bill threatens to up the ante.
Here’s how Jeremy C. Young, senior manager of free expression and education at PEN America, describes a proposed law that would (among other things) prohibit all gender studies majors, DEI initiatives, and allow tenure to be revoked on a whim: “By handing politicians and political appointees the power to rewrite college mission statements, ban majors and programs, and hire and fire faculty according to political whims, HB 999 would silence those conversations and enact an unprecedented and unparalleled regime of government interference in public education.”
So, just as broadly written bans on nebulously defined ideas are leading to otherwise unobjectionable books being vacuumed up in the censorial process, Florida will now consider a new law that further narrows the guardrails of acceptable discourse in higher education. (Unintended consequences of overreaching government action…who knew?)
DeSantis’ other primary culture war battle—his crusade against the “corporate media”—also presents a potential outcome for which he likely hasn’t given much consideration. In the name of “truth,” the Florida governor wants to remove a major legal protection for journalists, even though his own right-wing media buddies would probably suffer the harshest consequences.
Ron DeSantis, Truth Cop
At times, the Florida governor seems like he’d rather be a Fox News host than president. He loves the trappings of cable TV news—the pontificating from the bully pulpit, the non-stop hammering of culture war rhetoric, and the warm, cozy feeling of being safely siloed in an ideological echo chamber, unchallenged and adored.
While cosplaying as a fearlessly pugnacious straight-shooter, he has avoided speaking with news outlets and reporters that aren’t openly supportive of him, and last week his press secretary tweeted to “all of the bookers and producers” with NBC-affiliated news outlets that “until your track record improves,” the governor’s office would not speak with them. (Essentially, DeSantis went from refusing to engage with non-chummy media to super-duper not engaging.)
DeSantis absolutely hates the “corporate media” (which, naturally, excludes Fox News, a news media outlet with a massive audience owned by a multinational corporate behemoth). He insists mainstream journalists lie with such impunity that the only solution is for government intervention, with laws that substantially lower the bar to prove defamation. This includes overturning the landmark 1964 Supreme Court case, New York Times v. Sullivan, in which the justices ruled unanimously that for a plaintiff to prove actual malice, the defendant must have defamed a person “with knowledge that it was false or with reckless disregard of whether it was false or not.”
In a recent livestream designed to look like a cable news segment, the Harvard Law grad DeSantis sat before a TV screen reading the word, “TRUTH,” at a semi-circle table between guest panelists helping the governor make his case that the government needs to make it easier to sue media outlets for libel.
Though DeSantis was, once again, infuriatingly vague about what exactly he thinks the government should do to fight back against “media lies,” a state legislator last week introduced yet another bill that would essentially criminalize the use of anonymous sources, and make the “failure to validate or corroborate the alleged defamatory statement” meet the standard for actual malice.
This means mistakes could no longer be made, for any reason. It would mean news outlets would be legally liable to prove (beyond a shadow of a doubt) any fact they disseminated.
This would be, of course, impossible, and it would mean that the most powerful people in our society would be all but exempt from public criticism. It would mean the death of journalism. Joe Cohn of the non-partisan Foundation for Individual Rights and Expression (FIRE) wrote, “Passage of this dangerous bill would spell disaster for free speech by constricting the open debate that is critical for a democracy to function.”
But even if DeSantis and other Republicans’ super-charged pro-censorship initiatives never came to be, even lowering the bar to prove actual malice just a tiny bit could very well put Fox News out of business.
Fox News Pundits Knew the “Big Lie” Was a Lie, and Lied About It Anyway
A trove of emails and other communications from Fox News executives and on air talent—released as part of discovery in Dominion Voting Systems’ $1.6 billion lawsuit against the network for defaming the company after the 2020 presidential election—showed everyone from Rupert Murdoch to Tucker Carlson to loyal Trump toady Sean Hannity knew that Trump’s Big Lie about massive voter fraud was total bullshit the whole time.
Fox News often hides behind the fact that its most popular programming consists of “opinion” shows (as opposed to its ever-shrinking “straight news” operation), a distinction the network has used to defend itself in other defamation cases.
But the Dominion lawsuit has revealed that even the most opinionated of Fox News hosts see themselves as “news sources.”
More material in which Fox News people affirm they're in the news biz: pic.twitter.com/m5e80a1oTE
— ErikWemple (@ErikWemple) February 17, 2023
Let’s put aside for a moment how disgusting it is that these popular media personalities—out of fear of alienating Trump and losing audience to tiny Fox News knockoffs, like Newsmax—absolutely poisoned the body politic, cementing in millions of people’s brains that Joe Biden is an illegitimate president, sitting in the White House as the result of the most convoluted and yet flawlessly executed conspiracy in the history of mankind.
Actual human beings were directly hurt as a result of these lies.
Elected officials and election workers were harassed and threatened at their homes. Over a dozen states passed restrictive voter laws to combat the supposed massive fraud that Fox News personalities knew fully well didn’t exist. And then there was that whole assault on the U.S. Capitol thing.
That’s ballgame, right? They knew these were lies, and yet they propagated those lies. Under the standard of actual malice right now, it sure seems like there’s more than enough evidence to clear the bar.
But get this, Fox News lawyers have cited as a defense…New York Times v. Sullivan.
“There will be a lot of noise and confusion generated by Dominion and their opportunistic private equity owners, but the core of this case remains about freedom of the press and freedom of speech, which are fundamental rights afforded by the Constitution and protected by New York Times v. Sullivan,” the network said in a statement.
Some legal experts have argued that this case (if decided against Fox News), could actually end up proving that the bar to prove defamation that was set by Sullivan isn’t an impossible one to meet. But surely, without Sullivan, Fox News would already be toast.
If this were a rational political moment, it’d be the time for the governor to choose sides.
Does he really want to remove the robust protections for media freedom that were set by Sullivan? Like his anti-woke education crusade, he might not always be happy with the unintended consequences of his culture war broadsides—which, in this case, could include the death of Fox News.