DeSantis declares war on the free press
Also: Bizarre moments from Trump's CPAC speech.
By Lisa Needham
Remember when Donald Trump used to talk about his desire to “open up” libel laws so it’d be easier to sue journalists for coverage he didn’t like?
It was probably easier than it should’ve been to laugh at Trump when he said stuff like that. But it’s no joke in Gov. Ron DeSantis’s Florida, where Republicans are pushing legislation that simultaneously undermines press freedom and makes it harder for victims of discrimination to blow the whistle.
Working with DeSantis’s office, Florida Republican state House member Robert Andrade has authored a bill that would functionally eradicate the use of anonymous sources and make doing basic journalism much riskier by dramatically lowering the bar for defamation lawsuits. The legislation also gives religious conservatives what appears to be a total pass to discriminate.
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But before we get to specifics, a quick primer on American defamation law. Generally, if you, a random person reading this, say something you know is false about someone to a third party, that’s defamation, and you can be sued. However, things are a bit different for the press because of NYT v. Sullivan, a landmark 1964 Supreme Court case. That case heightened protections for news publishers if they were writing about a public official, and those protections were later extended to cover writing about all types of public figures. Since then, if a public figure sues a publication, they have to show that the publisher acted with “actual malice” — that the publisher recklessly published something they knew to be false.
The standards are different for publications, the Supreme Court held, because “debate on public issues should be uninhibited, robust, and wide-open.” If publications live in constant fear of litigation from deep-pocketed public figures, they could be too scared to ever publish anything remotely controversial.
While NYT v. Sullivan is a Supreme Court case and provides a nationwide framework to ensure journalists can help foster robust public debate, specific protections against criminal charges for journalists stem from state law. There is, for example, no federal shield law, which means journalists can be jailed for refusing a federal judge’s demand to reveal confidential sources. Every state except Wyoming has enacted some type of shield law, though what that looks like and how strong the law is varies widely. Florida’s current laws protect journalists from revealing sources or methods unless it can be shown that the information being sought in court can’t be obtained in any other way that wouldn’t implicate First Amendment rights. Generally, Florida defaults to granting the journalist's privilege. Andrade’s proposed legislation eliminates these protections.
Turning government into a black box
The Florida bill would make it much easier for public figures to sue by removing protections for the press if a piece was based “wholly on an unverified anonymous report.” Initially, that sounds like an issue would arise only if a journalist based an entire piece around an anonymous source. However, if you look elsewhere in the proposed law, it’s clear it is much worse than that: “A statement by an anonymous source is presumptively false for purposes of a defamation action.”
This stance is a willful rejection of the critical role that unnamed sources play in reporting, particularly about the workings of government. Government employees are often prohibited from talking on the record but can provide key information on background. This does not mean the source is anonymous to the reporter or that other sources haven’t verified the information. But this bill suggests that unless a publication can somehow provide public, on-the-record verification of an anonymous source, it is liable for defamation whenever it does basic journalism. Of course, if there were always public, on-record verification available, reporters would never need to cultivate sources to provide background. This basically eradicates the kind of reporting that broke the Watergate story or gave us the Pentagon Papers, because the paper would be almost certain to lose a lawsuit to government officials named in the story.
This bill would also eliminate Florida’s “journalist’s privilege.” That privilege means that a journalist can’t be compelled to testify or disclose information about sources. If journalists can’t promise sources protection, sources won’t talk. The bill would thus effectively shut down reporting about the government: journalists couldn’t use anonymous sources, and sources would receive no protection if they come forward.
This is precisely what conservatives want. In their minds, government should be a black box in which they do whatever they want. They don’t want to be accountable to their citizens or the press. The only types of media that can survive in such an environment are those willing to display absolute loyalty to the government, at least so long as it is run by Republicans — exactly the role of Fox News the Trump years. Imagine another Trump term — or the first DeSantis term — in which the press is forbidden from reporting anything except the public, official line from the government.
The bill also gives Christian conservatives and white supremacists (a group with considerable overlap, obviously) a huge gift. Under this proposed law, no matter what monstrously discriminatory behavior they engage in, if someone accuses them of discriminating based on sexual orientation, sex, gender identity, or race, the accuser is actually the one liable for defamation, simply for pointing out that behavior, be it in print, on the internet, or just saying it to a third party.
Normally in a defamation lawsuit, the plaintiff has to prove they suffered some sort of harm to get monetary damages. But under a certain type of defamation, known as “defamation per se,” which means “defamatory on its face,” the plaintiff doesn’t have to prove any damages. That’s because the false statement is presumed to be so damaging that a plaintiff is automatically awarded $35,000 even if they suffered nothing (and they still get additional money if they prove additional damages). This type of defamation is generally reserved for things like lying about someone being a criminal or that they have a sexually transmitted disease. But under this proposed law, saying someone discriminated against a trans person is as defamatory as outright lying about them being a serial burglar.
So let’s say you’re the person who gets sued by someone who says you defamed them by saying they fired you because you’re Black, or that they wouldn’t rent to you because you’re trans. What kind of defense could you bring? Well, thanks to this bill, not much.
The bill would also bar defendants from making any reference to the religious or scientific beliefs of the plaintiff as a way to show discrimination. Someone could never back up an assertion of discrimination by saying, "they fired me from my job as a teacher because their Christian beliefs teach that lesbians shouldn’t work with children.” This bill dovetails nicely with Florida’s current anti-CRT panic as well, since anti-Black behavior also can’t be called out without running afoul of the proposed defamation law. Discrimination basically gets to run amok because when someone calls out that discrimination, they’re staring down a costly lawsuit that likely cannot be won.
Make Florida like China or Russia
Another bill making its way through the Florida legislature would require bloggers who write about elected officials or an office of the executive branch to register with the state if they receive any compensation for the blog. They must then file monthly reports with the state any time they add a post to the blog that is also about elected officials. Further, they must disclose the amount of compensation and, if and when they receive additional compensation for a post, inform the government yet again. There’s also a fine of $25/day, up to $2,500, for late reports. It’s a ham-handed way to crack down on coverage, a cynical attempt to make it too onerous for bloggers to conform to these rules. Worse, many bloggers may be concerned about having their posts scrutinized on a monthly basis if they are generally critical of the Florida government.
Were these bills to pass — and given the Florida legislative term thus far, there’s no reason to think they won’t — they will rob vulnerable populations of the ability to call out those who oppress them, and it would rob everyone of the right to know what is happening in their government. With that, it will genuinely enshrine “free speech for me but not for thee” into Florida law.
It’s unclear what would happen if the Florida law passes but is challenged in court. Trump put 12 judges on the Florida federal district courts and six on the 11th Circuit Court of Appeals, which covers Florida. The chance of getting a conservative judge favorable to the notion that the real problem is meddling journalists, not creeping fascism, is high.
And if it goes all the way up to the Supreme Court?
A particular stripe of conservative has long hated NYT v. Sullivan, and two of the most prominent happen to sit on the highest court. Justices Neil Gorsuch and Clarence Thomas both want NYT v. Sullivan gone partly because they feel there are too many media outlets now. Gorsuch wrote that protections for the press have “evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.” In a separate opinion in the same matter, Justice Thomas complained of the “lack of historical support” for the higher standard for public figures and said it was time for “a second look” at the public figure doctrine. Donald Trump wants it gone too, because he believes that stories about him in places like the New York Times and the Washington Post are “hit pieces.” DeSantis, busy positioning himself for a 2024 run, recently complained at length about this, whining that “right of center” people are “targeted” by the media and they “don’t have adequate recourse” if they can’t sue.
Conservatives don’t seem to have thought through the fact that right-wing media like Fox News, particularly Tucker Carlson, presents a near-constant stream of easily-checkable lies, and any loosening of libel laws would likely hit them far harder than WaPo, for example. (See also Newsmax and OAN.) But DeSantis has a presidential primary to win, and attacking the press is a way to prove his owning-the-libs bona fides.
Trump’s CPAC speech got really weird when he went off script
By Aaron Rupar
Donald Trump’s scripted material has barely changed in years, except for crude transphobia being an increasingly central part of it. As is often the case, though, a few off-prompter moments from his CPAC speech warrant attention.