If passed, the bills would significantly harm journalism in Florida.
I. Introduction and Executive Summary
The Florida House and Senate both recently introduced bills that would, if passed and upheld by the courts, collide with the U.S. Supreme Court’s long-established precedent recognizing First Amendment limits on defamation law. Efforts to reform defamation law are not new, but the Florida proposals radically differ from previous proposals in their breadth and, as a result, their potential impact on journalism in the state. If passed, these proposals would make reporting news and publishing commentary in Florida much less protected from meritless defamation suits. Because they depart significantly from established Supreme Court precedent and the defamation laws of other states, these proposals might also make Florida a destination for defamation plaintiffs looking for a friendly forum. If litigation tourism were to develop, it could burden Florida state courts and harm the news media, though due process protections for out-of-state defendants may continue to provide shelter from suit.
For instance, both versions would abrogate Florida’s reporter’s privilege for defamation claims. (The Senate version does so for “related” claims, too.) They would also make it easier to sue for defamation when challenging statements by confidential or unknown sources. The Senate bill lowers the threshold of proof that a public figure plaintiff must show when challenging statements by anonymous sources, from knowledge that something was false or reckless disregard of that possibility — the Supreme Court’s “actual malice” test established in New York Times v. Sullivan — to negligence, which only requires a plaintiff to show that the defendant acted unreasonably. (The House bill does this for any plaintiff.) The bills also designate certain categories of people who cannot be considered public figures and contexts where actual malice can be inferred. Both bills would neuter Florida’s anti-SLAPP law.