Florida redefines defamation law

Continuing my discussion of horrible new Florida laws. Rocky and I discussed DeSantis' 2022 never-reduced defamation-reform plan. It has been introduced in the current session. I describe some of the provisions after the jump.

Two things remain from the original proposal (and why we discussed it in our SB8 articles): The bill has serious and obvious First Amendment defects (many First Amendment people would call it "blatantly unconstitutional"). And those constitutional defects cannot be raised or adjudicated in offensive pre-enforcement litigation, because they define the elements of a private right of action for damages; speakers must sue and raise the First Amendment as a defense. Some defamation defendants might have the option of removing the private action to federal court on diversity grounds, an option unavailable to SB8 defendants.

Here are the bill's lowlights, all of which should raise serious First Amendment problems.

• Statewide (or near-statewide) venue for defamation actions. One of the key ways SB8 supposedly stacked the deck.

• Fee-shifting for prevailing defamation plaintiffs, plus removing defamation action from offer-of-judgment fee-shifting. This runs against the trend of granting fees to prevailing defendants to deter performative defamation actions (even absent full application of a state SLAPP in federal court).

• Limits on when someone can become an accidental, involuntary, or limited-purpose public figure. In particular, non-elected public officials (read: cops)  do not become public officials solely by virtue of employment and no one becomes a public figure by denying accusations of wrongdoing. This is enables police officers involved in excessive-force incidents to use defamation suits to silence critics--they can go on a media tour to deny the allegations and neither their government job nor media access renders them public figures.

• Identifies situations in which actual malice is presumed. These include relying on "unverified anonymous reports," repeating something that is "inherently implausible," and failing to validate. The irony, of course, is DeSantis seeks to target the people who picked on Nick Sandmann, Kyle Rittenhouse, etc. But this language is more likely to enable claims by Dominion against election deniers and other conspiracy theorists who repeat nonsense that only a crazy person or reckless person could believe.

• An allegation that someone discriminated on all sorts of bases constitutes defamation per se, with statutory damages of $ 35k. This should not fly because such an allegation or report of an allegation may be opinion or hyperbole, either of which is protected.

• Where that allegation of discrimination is because of sexual orientation or gender identity, a plaintiff cannot prove truth if the defendant relied on religious or scientific beliefs. This exacerbates the viewpoint-discriminatory nature of most defamation. But it shows how the accusation of discrimination is non-provable opinion--both involve competing, non-falsifiable "beliefs" rather than facts. Nevertheless, it may have a chilling effect in reporting and reporting on widespread discrimination--especially around LGBTQ+ status--in the state.

• A statement by an anonymous source is presumptively false. And where the defendant refuses to disclose the identity of the anonymous source, the plaintiff (including a public figure or official, it appears) need only prove negligence.

As I said, each bullet point will draw serious First Amendment scrutiny and many should be declared invalid. Much depends on how much of the First Amendment defamation edifice is constitutionally compelled. That is, how much leeway does a state have to define the scope and application of actual malice in its defamation law and what limits does the First Amendment impose from above. For example, can a state shift the burden to prove truth in anonymous-source cases or does the First Amendment place the burden on the plaintiff? Can a state define who qualifies as a public official/public figure required to prove actual malice or does the First Amendment control?

Regardless, it again demonstrates that what Texas did with SB8 was not new; it reflected a specific application of a state's longstanding ability to define torts and private rights of action. Again, decry Florida's blatant disregard for free speech. Do not treat the process as unprecedented or problematic.