Bill to tighten defamation laws moves
A measure that would make it easier to sue for defamation is advancing in the Florida Legislature, despite opposition from both ends of the political spectrum.
The House Regulatory Reform & Economic Development Subcommittee voted 8-5 on Tuesday to approve HB 757 by Republican Rep. Alex Andrade, a Pensacola lawyer.
Citing current U.S. Supreme Court justices who have criticized broad protections for journalists under Times v. Sullivan, Andrade suggested that the pendulum has swung too far in favor of the press.
“You’re entitled to your own opinion,” Andrade said. “But you should be entitled to redress in the courts because you suffered actual damage.”
Among other things, the bill would create a rebuttable presumption that a defendant acted with “actual malice” if a public figure proves that a statement attributed to an anonymous source was false. Another provision would create a “false light” cause of action for plaintiffs targeted by AI-generated deepfakes.
Rep. Angie Nixon, D-Jacksonville, suggested the bill runs counter to sweeping “tort reforms” the Legislature approved last year in the name of cracking down on “frivolous lawsuits.”
“How do you anticipate this would affect the volume of suits in Florida’s courts?” she said. “Wouldn’t this turn Florida into a litigation factory?”
Nixon pointed to a provision that would make defendants liable for punitive damages if they fail to “timely” or “permanently” remove an article or broadcast from the internet.
Nixon asked how the provision would apply to a defendant who agreed to correct or retract a portion of an article.
Andrade acknowledged the provision might require some reworking.
“I think you bring up a good point with respect to vagueness in that area,” he said.
Bobby Block, executive director of the First Amendment Foundation, called the bill “overly broad, ill advised, and unconstitutional.”
“Section two presumes actual malice in any case involving an anonymous source,” he said. “This anonymous source presumption is a solution in search of a problem.”
Liberal leaning and environmental groups, including the ACLU, Common Cause, Florida Rising, and the Florida Sierra Club, oppose the bill.
The conservative Americans for Prosperity is also opposed, with advocates warning that the measure would adversely impact Florida’s anti-SLAPP (strategic lawsuits against public participation) laws that protect unpopular speech.
Chris Stanburg, the group’s state legislative affairs director, said a provision in the bill that would permit an action to be filed in any county in Florida would invite “forum shopping.”
The bill would not survive a legal challenge, Stanburg warned.
“This goes against about 35 years of Supreme Court precedent,” he said. “You are risking having this law being struck down as unconstitutional.”
Democratic Rep. Ashley Gantt, a Miami attorney, focused on a provision that would require a court to conduct a “veracity hearing.”
The bill states, in part, that “the court’s review of the motion shall be limited solely to determine whether a statement is a statement of fact or an opinion and the veracity of the statement of fact at issue in the underlying cause of action.”
The provision would violate a defendant’s Seventh Amendment rights to a civil jury, Gantt said.
“Isn’t that the role of a jury to be a finder of fact in a trial? How is that not a violation of your right to a trial by jury?”
Andrade insisted that judges are called upon to make similar determinations in anti-SLAPP proceedings.
Rep. Anna Eskamani, D-Orlando, said that as a public official, she sympathizes with anyone who wants to fight back against false accusations.
But she said she was worried the bill goes too far.
“It can create an environment where people are just not going to engage in journalism anymore,” she said.
The House Civil Justice Subcommittee voted 12-4 to approve HB 757 last month. It faces a hearing in Judiciary before reaching the House floor.
A companion, SB 1780 by Sen. Jason Brodeur, R-Lake Mary, cleared Senate Judiciary 7-2 earlier this week. It faces two more committee hearings.
Originally published at https://www.floridabar.org/the-florida-bar-news/bill-to-tighten-defamation-laws-moves/