Second House panel approves changes to defamation lawsuits against journalists despite pushback

A second House panel has approved legislation that would make it easier to successfully sue news outlets for defamation, as Republican lawmakers have expressed concern that current law provides protections for journalists that are nearly impossible to overcome.

Pensacola Republican Rep. Alex Andrade is sponsoring the legislation (HB 757). The measure would provide that, in a defamation suit, “there is a rebuttable presumption that the publisher acted with actual malice in publishing the statement” if it relied on an anonymous source.

Currently, under New York Times v. Sullivan, the plaintiff is required to prove a defendant acted with actual malice, meaning the defendant knowingly published something false or acted with reckless disregard to the truth.

The House Regulatory Reform & Economic Development Subcommittee advanced the bill Tuesday with a handful of Democrats dissenting.

Andrade was peppered with some definitional and procedural questions from Democratic Reps. Anna Eskamani, Ashley Gantt and Angie Nixon during Tuesday’s hearing. Some of those questions centered on the bill’s potential impacts. 

“Considering the vital role of anonymous sources in uncovering issues of significant public interest, how might this provision affect the willingness of journalists to pursue stories involving public figures?” Nixon asked. “Are there concerns about potential negative impacts on investigative reporting that uncovers wrongdoing or matters of public concern?”

Andrade responded to Nixon by stating that ethical journalists shouldn’t be affected by the potential change in law.

“If you ask any reporter that you know personally whether or not they’ve ever published a statement of fact that might harm someone’s reputation based on a single source, let alone a single anonymous source, they would, without a doubt, tell you they’ve never done that. It’s considered journalistic malpractice,” Andrade said.

“So if this bill, that only addresses an act of what every journalist believes is journalistic malpractice, would somehow harm how they operate, I’d have serious questions about how that reporter operates currently.”

Nixon then followed up by asking whether the bill could lead to an onslaught of lawsuits, setting Florida up to be a “litigation factory.”

But Andrade countered those concerns by citing the state’s anti-SLAPP (strategic lawsuits against public participation) law, arguing it was sufficiently strong enough to deter any unsubstantiated lawsuits.

The issue, however, came up again during the public comment period. Several representatives from more liberal interests groups waived in opposition to the bill. But two conservative-leaning speakers also spoke against the bill, raising multiple concerns.

Christopher Stranburg, Legislative Affairs Director of Americans for Prosperity, echoed Nixon’s concerns with the law attracting additional lawsuits.

“We think that this opens up the state to forum shopping in defamation causes of action. We think that it’s going to increase a lot of litigation and we would strongly oppose that.”

Republican lawmakers in years past have been concerned with cutting down frivolous lawsuits in Florida’s court system. But Andrade’s bill would allow defamation lawsuits regarding statements made on radio or TV to be brought in any county where the show or program is accessible. That would appear to attract out-of-state litigants selecting Florida as a forum more frequently.

Stranburg also spoke to a section of the legislation making it easier to sue over depictions using artificial intelligence that publicly portrays someone in an “offensive” manner that a “reasonable viewer” would believe is real.

“We believe that the defamation causes of action within the state already cover this cause of action sufficiently and we don’t think that creating a new cause of action is wise at this point in time,” Stranburg said.

“Additionally, we think that a lot of the terms in here are vaguely defined, which could cause issues and lead to increased litigation.”

He also said the law could be struck down as unconstitutional.

James Lake of Thomas & LoCicero said he was a conservative and praised Republicans’ previous efforts to cut down on lawsuits. But he said this bill may backfire.

“I’m also concerned it would be used to punish conservative speakers and would drive up insurance costs,” Lake said.

“The takedown requirement in Section 1 is overly broad. If one word in an article or broadcast is incorrect, this bill demands the entire article or broadcast be taken down. That’s overly broad and unconstitutional.”

Nixon also referenced that provision earlier in the hearing, specifically asking what would happen if a story is corrected.

“How does this interact with situations where a story is corrected rather than being entirely false? And is there any mechanism within your bill that allows for the corrected story to remain online?”

Andrade said Nixon brought up a “good point” regarding the “potential vagueness in that section.”

“No retraction by a newspaper prevents someone from pursuing a defamation lawsuit right now. Defamation lawsuits are brought all the time right now. The only circumstance where the retraction statute that this bill would amend would apply is in the limitation of the types of damages a plaintiff could potentially collect even if a retraction has been made. So making that clear would probably be a good point and something I could absolutely look at.”

The legislation would also establish a so-called “veracity hearing” in these types of suits, a first in the nation. That hearing would allow a Judge to issue a finding as to whether “a statement is a statement of fact or an opinion.”

In debate, Gantt raised concerns that the veracity hearing would violate the Seventh Amendment’s guarantee to a jury trial. But Andrade rejected that analysis in his close.

“If you think that’s unconstitutional then you better be screaming and shouting to do away with the SLAPP Act, because it is a definitive motion that requires the dismissal of the case and takes it completely out of the scope of the jury.”

“The veracity hearing still leaves, as the purview of the jury, the question of whether or not the statement of fact constitutes defamation per se or per quod, or is a privacy tort; whether or not the plaintiff in the cause of action qualifies as a public figure; or whether or not the defendant in the cause of action acted negligently, recklessly, intentionally or with actual malice.”

The legislation has one more stop ahead, in the House Judiciary Committee. A companion bill by Republican Sen. Jason Brodeur (SB 1780) has advanced through one of its three assigned committees.