TALLAHASSEE – As the Florida legislative session opens this week, lawmakers have two companion bills to consider that critics say would remove longstanding constitutional and judicial protections of freedom of speech and of the press.
If passed, Senate Bill 1220, “Defamation and Related Actions,” filed by Jason Brodeur (R-Lake Mary), and House Bill 991, “Defamation, False Light, and Unauthorized Publication of Name or Likenesses,” filed by Alex Andrade (R-Pensacola), will not only have a chilling effect on free speech in traditional news media outlets but on people who publish their views in social media, according to Bobby Block, executive director of the Tallahassee-based First Amendment Foundation.
“HB 991 is officially called the Defamation, False Light, and Unauthorized Publication of Name or Likenesses Bill. But First Amendment activists like me who have read it call it the “Death to Public Discourse Bill,” Block wrote on the foundation’s website news alerts page.
“This legislation would also subject bloggers, community groups, average users of social media – in short everybody who wants their voices heard – to the untold financial and emotional burdens of lawsuits,” according to Block, who suggests that Floridians “protect your freedom of speech by using yours to tell your representatives to throw out HB 991.”
The Freedom of the Press Foundation, a New York-based 501(c) (3) nonprofit organization whose mission statement asserts that it “protects, defends, and empowers public-interest journalism in the 21st century,” views the bills as a threat to a landmark court case protecting a free press.
The 1964 U.S. Supreme Court defamation case, New York Times Co. v. Sullivan, “ruled that when suing for defamation, plaintiffs who are public officials have to prove actual malice – that their critics knew their statements were false or recklessly disregarded the truth. Later decisions extended the requirement to other public figures at the center of newsworthy debates,” wrote Seth Stern, director of advocacy for the foundation, in a guest column for the Tampa Bay Times.
The difficult-to-prove standard is necessary, in the court’s opinion, written by Justice William J. Brennan Jr., because “debate on public issues should be uninhibited, robust and wide open,” including “vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.”
In addition to judicial protection, “The freedom of speech and of the press is enshrined in the First Amendment to the Constitution and is necessary to promote the vigorous dialogue necessary to shape public policy in a representative democracy,” according to a recent article in the Federal Communications Law Journal advocating state legislation to protect those freedoms.
The proposed Florida bills would have the opposite effect.
Bills would undermine defamation law
If the House bill passes, a statement by an anonymous source – such as the FBI’s Mark Felt (“Deep Throat”), who helped Washington Post reporters uncover the Watergate scandal during the Nixon ad- ministration – would be presumed false in a defamation action. HB 991 also provides that a public figure does not necessarily need to prove actual malice to win a defamation lawsuit, which has long been the standard under Times v. Sullivan. It also removes non-elected public employees from the definition of “public figure,” enabling them to more easily win defamation lawsuits.
The bill also extends the definition of “defamation” from traditional media to include any “utterance on the Internet.”
Of particular concern to Florida news organizations is how the bill, and its companion in the Senate, would change how reporters work with anonymous sources.
According to Florida law (Flori- da Statute 90.5015), a professional journalist is “a person regularly engaged in collecting, photographing, recording, writing, editing, reporting or publishing news, for gain or livelihood, who obtained the information sought while working as a salaried employee of, or independent contractor for, a newspaper, news journal, news agency, press association, wire service, radio or television station, network, or news magazine.
In Florida, professional journalists have “a qualified privilege not to be a witness concerning, and not to disclose the information, including the identity of any source, that the professional journalist has obtained while actively gathering news. This privilege applies only to information or eyewitness observations obtained within the normal scope of employment and does not apply to physical evidence, eyewitness observations, or visual or audio recording of crimes. A party seeking to overcome this privilege must make a clear and specific showing that:
• The information is relevant and material to unresolved issues that have been raised in the proceeding for which the information is sought;
• The information cannot be obtained from alternative sources; and
• A compelling interest exists for requiring disclosure of the information.”
Both the House and Senate bills remove the professional journalist’s privilege regarding anonymous sources in defamation lawsuits.
If passed, the bills would take effect on July 1.
