A bill proposed in the Florida Republican-controlled state legislature that aims to make it easier for public figures, including lawmakers, to sue news media for coverage they dislike would also have severe repercussions for anyone (not just those in the news industry) who use social media to point out someone else’s bigoted behavior.
In addition to granting greater leeways for defamation lawsuits for public figures against the press, House Bill 991 would also give Florida residents the right to sue others (both in the state or elsewhere in the U.S.) who describe their actions online as transphobic or homophobic, for sums as high as $35,000, and would not allow the truth to be used in defenses against such lawsuits.
Rather, a person suing another over being called out for their bigoted words online would only have to suggest that their commentary was reflective of their personal religious or (purportedly) scientific beliefs in order to be successful in their suit, even if their words truly were transphobic or homophobic, according to the text of the bill.
The bill, which came about at the behest of Republican Florida Gov. Ron DeSantis, classifies “accusations that someone engaged in discrimination as defamation per se with $35k minimum in damages,” Harvard Law School Cyberlaw Clinic Instructor Alejandra Caraballo, who is transgender, said in a series of posts on Twitter explaining the scope of the bill. “If it involves LGBTQ people and someone’s beliefs, truth is no defense” in the lawsuit, Caraballo added.
In a hypothetical situation, a person using an anti-gay slur online and being called homophobic for it could sue the user who described them in such a way. Even if that user’s description of their behavior is accurate (that the person’s words they were commenting on were unambiguously bigoted), if the plaintiff claims they have a religious belief that aligns with their bigotry, they can still sue, with the validity of the bigotry of their statements being dismissed in the lawsuit.
The bill would allow Florida residents to sue anyone, not just other Floridians, who speak out against their bigotry — an online user in Kansas City, Missouri, for instance, could be sued for defamation if they described a user from Orlando, Florida, as homophobic.
“This could chill speech nationally,” legislative researcher and LGBTQ activist Erin Reed said in a blog post, noting that, if passed, the bill could result in “venue shopping” — the practice of seeking out specific courts that are friendly to a litigant’s causes.
The goal of the legislation overall, including but also beyond these provisions, appears to be to loosen or drastically alter defamation standards overall to impact speech and press rights, making it difficult for citizens and media alike to criticize government leaders. Ultimately, the bill will likely be challenged in the courts for being unconstitutional — but that may be Republican lawmakers’ goal, too.
The bill, if passed into law, could find its way up to the federal Supreme Court, where the conservative majority may side with Governor DeSantis and Florida Republicans on the matter, drastically altering precedents that have been in place since the landmark 1964 ruling New York Times v. Sullivan, which limited how public figures (including in government) could sue others making comments against them.
Indeed, the bill’s author Republican Rep. Alex Andrade has commented directly about that ruling in defending it, stating that the standard in that case was an overreach. “This is not the government shutting down free speech. This is a private cause of action,” Andrade has also said.
Free speech and press rights advocates disagree.
“I can’t say I have seen every bill ever introduced, but I’d be quite surprised if any state Legislature had seriously considered such a brazen and blatantly unconstitutional attack on speech and press freedoms,” said Seth Stern, director of advocacy for the Freedom of the Press Foundation, speaking to Politico on the matter.
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