Florida Gov. Ron DeSantis, arguably the country’s top censorship proponent, is extending his reach and his fascist goals through the state’s Republican-controlled legislature, where a bill DeSantis has been pushing for was released this week in the state House. The legislation is his vehicle for challenging New York Times v. Sullivan, the landmark civil rights-era decision that raised the bar for public officials (and eventually extended to “public figures”) to bring libel or defamation claims against the press.
Under Sullivan, public figures have to meet the high bar of proving “actual malice” by a press outlet, that it knowingly published false information or had a reckless disregard for the truth in its reporting about the figure. DeSantis previewed the new legislation earlier this month in a panel discussion with other right-wing figures. “When you’re knowingly putting out false information and, indeed, I’d say these companies are probably the leading purveyors of disinformation in our entire society right now,” said DeSantis, “there needs to be an ability for people to defend themselves, not through government regulation or restriction but through being able to seek private right of action.”
The legislation, which does not yet have a counterpart in the state Senate, would limit the definition of a public figure, and of course make it easier for elected officials to win lawsuits against journalists and the companies they work for. That would make media companies either pay a lot more for liability insurance to cover these kinds of actions, driving many smaller outlets out of the business, or not provide hard-hitting, critical coverage of elected officials. That’s state censorship, by any definition—and fascism by plenty of others.
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The Foundation for Individual Rights in Education, FIRE, blasted the legislation, writing “HB 951 dangerously attacks the protections Sullivan recognized.”
If passed into law, it would narrow the list of people who may be deemed “public figures,” meaning a wider range of commentary on today’s public issues could result in a successful defamation lawsuit. The bill also declares that speech from anonymous sources will be presumed false, and that failure to “verify or corroborate an alleged defamatory statement” will constitute actual malice. What’s more, the bill proposes awarding costs and attorney’s fees to any plaintiff who wins a defamation suit—making it even riskier for both everyday citizens and the free press to engage with important issues.
Andre Pantazi, editor at the Tributary, a nonprofit, nonpartisan newsroom in Jacksonville, Florida, notes that it would also “allow for explicit venue shopping to any county in FL for defamation lawsuits.” It’s like how all the conservative extremists bring their federal challenges to two counties in Texas where they are 100% likely to get one of two extremist district judges, and can be assured that their case will advance. Because this is a key component for DeSantis: advancing a challenge to what will likely become state law all the way to the Supreme Court.
Justice Clarence Thomas has already invited challenges to Sullivan. That was in a lawsuit last year brought by Coral Ridge Ministries (CRM), an evangelical Christian organization and media company, against the the Southern Poverty Law Center, which had designated the organization as an anti-LGBTQ hate group. CRM claimed defamation and the courts disagreed—all the way up to the Supreme Court, which denied the organization’s request that it hear the case. Just one justice dissented: Thomas.
“I would grant certiorari in this case to revisit the ‘actual malice’ standard,” Thomas wrote. “This case is one of many showing how New York Times and its progeny have allowed media organizations and interest groups ‘to cast false aspersions on public figures with near impunity.’” He wrote that the Sullivan decision, and those by the court “expanding it,” were “policy-driven decisions masquerading as constitutional law.”
Whether the Supreme Court would take on a case this time around, coming as it were from a state law rather than private action, is uncertain. What is certain, though, is this is a move by DeSantis toward clamping down on critics by censoring the media.