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Florida Gov. Ron DeSantis' office considered a bill to target libel laws, records show

Skyler Swisher, Orlando Sentinel on

Published in News & Features

Trump blasted the country’s libel laws when he was president, calling them a “sham and a disgrace” and vowing to take a “strong look” at them. DeSantis hasn’t been vocal in calling for changes, but he routinely criticizes the “corporate media” during news conferences, vowing in one briefing to punch back against what he called “smear merchants.”

That New York Times v. Sullivan case created what is known as the “actual malice” standard. To win a defamation lawsuit, a public official must prove a false statement was published “with knowledge that it was false or with reckless disregard of whether it was false or not.”

That’s a higher standard than an ordinary person who isn’t in the public spotlight must prove when suing for libel.

The high court later extended that standard to public figures, which include celebrities and others who have achieved “pervasive fame or notoriety.”

Kopelousos exchanged emails with a legislative assistant for state Sen. Jennifer Bradley, a Fleming Island Republican, about a proposal challenging those standards.

“Can you replace with this version of the bill with the attached language ... our attorneys worked on additional language ... thank you,” Kopelousos wrote in one email sent Jan. 2.

The draft bill proposes considering “a failure to validate or corroborate the alleged defamatory statement” as evidence of actual malice in defamation cases, a lower standard than “reckless disregard” for the truth.

It revises the definition of a “public figure” to exclude people whose notoriety arises solely from defending themselves publicly against accusations; granting an interview on a specific topic; public employment other than elected or appointment by an elected official; or a video, image or statement uploaded on the internet that has reached a broad audience.

The briefing document calls the Times ruling “a dramatic departure from the original understanding of the Free Speech Clause of the First Amendment to the U.S. Constitution.”

 

“These changes to defamation law have resulted in a no-holds-barred media environment where defamatory statements are ubiquitous but accountability for those statements is not,” reads the summary, which does not list an author.

Pamela Marsh, executive director of Florida’s First Amendment Foundation, said she only recently became aware of the proposal.

“In my opinion, this proposal would have established a standard of ‘negligence’ in libel cases that would be in stark contrast with the U.S. Supreme Court’s 1964 ruling in New York Times v. Sullivan,” she wrote in an email. “That case has been the ‘law of the land’ for decades.”

Legislating that new standard would set up a constitutional challenge to the Times decision, Marsh wrote. Two U.S. Supreme Court justices — Clarence Thomas and Neil M. Gorsuch ― have called for reconsidering it.

The case arose from an advertisement raising funds for the civil rights movement that appeared in The New York Times. The ad included some factual errors, and an Alabama city commissioner sued under the state’s libel law.

In an unanimous decision, justices reasoned that “debate on public issues should be uninhibited, robust, and wide-open,” even if it includes occasional mistakes and erroneous statements.

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©2022 Orlando Sentinel. Visit at orlandosentinel.com. Distributed by Tribune Content Agency, LLC.

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