FIRE statement: Florida bill attacking NYT v. Sullivan would ‘spell disaster’ for free speech

UPDATE: Shortly after the publication of this statement, Rep. Andrade withdrew HB 951 and introduced an even worse bill, HB 991, in its place. 

HB 991 exacerbates the threats to freedom of expression presented by HB 951. For example, with regard to anonymous sources, HB 991 does not simply presume that statements from anonymous sources are false, as in HB 951. Instead, HB 991 retains that presumption, but also goes further: When the journalist or media outlet refuses to identify an anonymous source, plaintiffs bringing a defamation claim need to prove only that statements from anonymous sources were published negligently, not with actual malice.

FIRE will oppose HB 991 every step of the way.

Statement from FIRE Legislative and Policy Director Joe Cohn

Yesterday, Florida state legislator Rep. Alex Andrade introduced HB 951, a bill that seeks to roll back the protections for free speech secured by one of the most important Supreme Court decisions of the last six decades: New York Times Company v. Sullivan. 

Sullivan has prevented the powerful from using defamation lawsuits to intimidate and silence their critics for more than a half-century. In Sullivan, a decision issued at the height of the Civil Rights Movement, the Supreme Court held that when suing for defamation, public officials must prove the defendant spoke with “actual malice” — that is, the defendant knew his or her words were false, or spoke with reckless disregard for the truth.

Sullivan doesn’t protect deliberate falsehoods. But it does protect our right to speak out about our government and the issues of the day. By ensuring that simple mistakes made in criticizing powerful people and public figures don’t result in a costly, chilling lawsuit, the Sullivan threshold secures vitally important breathing room for public debate.  

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. 

If HB 951 becomes law, the result will be far less discussion and debate on matters of public concern, as powerful public figures will be able to bully citizens and critics into silence via costly lawsuits. By presuming anonymous sources are lying, the law would kneecap investigative journalism. And by awarding costs and attorney’s fees to successful plaintiffs, the law would effectively dismantle Florida’s anti-SLAPP law, incentivizing meritless defamation claims and dissuading lawyers from representing defendants who can’t afford counsel.    

Passage of this dangerous bill would spell disaster for free speech by constricting the open debate that is critical for a democracy to function.

FIRE will oppose HB 951 every step of the way.