Fort Myers Florida Weekly

Legislative MUZZLE

House bill would have a chilling effect on free speech, constitutional experts warn.



“There will be no protection for people like that, no protection for anybody who wants to get involved in their community or voice their opinion.” — Barbara Petersen, First Amendment lawyer

“There will be no protection for people like that, no protection for anybody who wants to get involved in their community or voice their opinion.” — Barbara Petersen, First Amendment lawyer

Florida Republican legislators now less than three weeks into the rule-making eight-week 2023 legislative session in Tallahassee are preparing to break faith with almost 60 years of American jurisprudence established by the Supreme Court in 1964 to protect free speech. Following a public discussion criticizing media and a call to legislators to rein in its excesses by Gov. Ron DeSantis last month, the legislators took steps to do that, introducing a bill that would allow politicians and other government officials or public figures to sue any critics they claim defamed them — without having to prove actual malice if the critics point to behaviors or events arguably unrelated to the job: extra marital affairs, for example, or possible business deals.

In another striking break with precedence, the bill says anybody who accuses an official of discrimination “against another person or group because of their race, sex, sexual orientation, or gender identity” has automatically defamed them, whether or not the allegation is true.

COURTESY PHOTO

COURTESY PHOTO

Not only that, but the bill would allow elected leaders and officials to claim “religious expression or belief,” or “scientific beliefs” — the phrase itself may be an oxymoron — and thus sue anyone who challenges publically their comments or actions aimed at lesbians, gays, bisexuals, transgender or queer people, or religious groups such as Jews or Muslims, for example. Such actions described as part of a leader’s religious expression or belief, or scientific belief, “cannot be considered evidence of discrimination” in the proposed bill.

In addition, anonymous sources including background sources speaking off the record for news reports — of the kind that exposed the Nixon Watergate scandal in 1973 or first exposed former President Clinton’s affair with a White House intern in 1998 or played a role in reporting former President Trump’s extra marital liaisons in more recent years, for example — would be presumed false in any lawsuit.

BERGERSON

BERGERSON

The losing side, defendants who criticized officials and got the thumbs down from the courts, would have to pay attorney fees and costs. That’s an English court-system tradition, not an American tradition. Here, each side pays its own costs, a condition much less likely to inhibit those without deep pockets from speaking their minds in public.

Florida would be the first state in the nation to take such an action if legislators pass House Bill 991.

Sponsored by Rep. Alex Andrade, R-2, and co-sponsored by Rep. Mike Beltran, R-70, the bill advanced through a civil justice subcommittee into the justice committee of the House last week. That’s part of the process that brings a bill forward to a vote, if committee members approve, in the full House of 120 legislators before the session wraps up on May 5. Bills passed in a full vote by the Legislature must then either be signed into law or vetoed by the governor. The new law would take effect July 1.

“Gov. DeSantis likes the quote: ‘Freedoms are worth fighting for.’ Well, that’s right, they are. And this bill takes away freedoms I fought for — and a lot of other people around Florida did, too. To me 991 has more than a chilling effect on people’s right to say things — to be quoted or to blog or whatever.” — Dick Batchelor, former state legislator and now president of Dick Batchelor Management Group Inc.

“Gov. DeSantis likes the quote: ‘Freedoms are worth fighting for.’ Well, that’s right, they are. And this bill takes away freedoms I fought for — and a lot of other people around Florida did, too. To me 991 has more than a chilling effect on people’s right to say things — to be quoted or to blog or whatever.” — Dick Batchelor, former state legislator and now president of Dick Batchelor Management Group Inc.

A similar bill, SB 1220, had not been heard as of last week by any committee in the 40-member Senate.

Neither Representatives Andrade, a graduate of the University of Florida School of Law, or Beltran, a Harvard Law School graduate like the governor, returned Florida Weekly requests for comment by press time.

Gov. DeSantis, speaking last month, called for legislators to “protect” citizens from so-called false narratives created by media outlets.

“When the media attacks me, I have a platform to fight back,” he said. “When they attack everyday citizens, these individuals don’t have the adequate recourses to fight back. It would contribute to an increase in ethics in the media and everything if they knew that if you smeared somebody — (if) it’s false and you didn’t do your homework — then you have to be held accountable for that.”

Federal law, based on the 1964 case Sullivan vs. The New York Times, already provides recourse for public figures defamed by media who can demonstrate the presence of malice — an intentional lie. But it protects mistakes by media, made without malice. That’s what happened in the famous Supreme Court case, based not on a news story but an advertisement.

A group of civil rights leaders criticizing the treatment of protestors by police in Montgomery, Alabama, in 1960 took out a full-page advertisement in The New York Times. The ad appeared in print with some minor errors. The Public Safety Commissioner in Montgomery, L.B. Sullivan, felt he’d been defamed and sued the paper, even though he wasn’t named in the ad. The case went to the Supreme Court, which decided by a vote of 9 to 0 that such errors, absent of malice, were protected speech.

In other words, Americans criticizing public figures or agencies have a right to be wrong if their mistakes are not malicious, a view that free-speech apologists and critics of HB991 say protects Americans from all walks of life and political viewpoints — not just professional journalists on the left or right. It encourages citizens to speak freely and to express opinions in good faith, whether or not unpopular, without fear of reprisals that could break them personally or financially.

Current situation

Currently, for example, Fox News is relying on Sullivan vs. The New York Times to defend itself in a $1.6 billion defamation lawsuit filed by Dominion Voting Systems, Inc. Fox continued to broadcast claims the 2020 presidential election was stolen after broadcasters and managers knew those claims to be false, Dominion alleges, pointing to emails or texts from host Tucker Carlson and other Fox employees.

Knowingly and therefore maliciously, Fox broadcast false claims that the company’s voting machines contributed to Trump’s 2020 loss, according to Dominion.

Whether that is the case remains to be decided. But under traditional American law, if the Fox broadcasts were not malicious, even if they were wrong, the company cannot be punished for defamation.

“Dominion and its private equity owners join a long line of public figures and corporations across the country that have long tried to silence the press and this lawsuit from Staple Street Capital-owned Dominion is nothing more than another flagrant attack on the First Amendment. FOX News will continue to fiercely protect the free press as a ruling in favor of Dominion would have grave consequences for journalism across this country,” a spokesperson for FOX News told Florida Weekly.

A multitude of observers, meanwhile, have expressed both incredulity and alarm at HB991.

“Anybody who comes within arm’s length of this bill can recognize that it’s an assault on democracy and free speech,” said Linda Penniman, a former Naples city councilwoman and now president of the board of trustees at the Florida Center for Government Accountability.

“Because Florida has such a broad open records law this is particularly villainous for Floridians — to have our freedoms infringed upon this way. Of all the states, the Sunshine State should not be infringing on free speech,” she added.

“The sponsors of this bill (Andrade and Beltran) must have missed the lecture in their law schools on constitutional law and the First Amendment,” said Peter Bergerson, a professor of public affairs at Florida Gulf Coast University. Early in his teaching career, Professor Bergerson had the late radio talk-show host Rush Limbaugh, then a young college student, in a government class he taught. Mr. Limbaugh made a highly successful career as a rightist political pundit, Professor Bergerson suggested, in part because of protections afforded to Americans by Sullivan vs. The New York Times.

In Article 1, Section 4 of the Florida Constitution, “Freedom of Speech and Press,” these orders appear: “No law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for defamation the truth may be given in evidence.”

The Florida Constitution reflects and echoes the U.S. Constitution.

“I’m not an attorney, but I subscribe to opinions widely held by constitutional scholars and lawyers that this bill would violate the U.S. Constitution,” Professor Bergerson added.

One of those lawyers, Carol LoCicero, a principal of the Tampa-based First Amendment law firm Thomas & LoCicero, traveled to Tallahassee to attend the meeting of the subcommittee on civil justice in the capitol last week, and offer some guidance.

“What I said at the hearing was this: Most of 991 is unconstitutional. It violates our Florida Constitution as well. There are many aspects of this bill that are plain rotten public policy.

“No state legislature can enact laws that violate the First Amendment. Here, we’re not just speculating about issues under the Bill of Rights. Here we have multiple bodies of case law well-tested out over decades, and this violates a lot of those cases.”

Additionally, she pointed out, malice is not the only constitutional problem with the bill.

“There’s a presumption in the bill that says, if you used an anonymous source that’s presumptively false.

“Frist of all, anonymous sources often provide incredible critical information that prompts societal change, and gets at abuses of power — in all kinds of things. To say that’s presumptively false is just not good for society.”

And not just in politics, she insisted.

“There are all levels of anonymous sourcing, such as people who are regular sources who give reporters information on background, information that’s important just to understanding how agencies work.

“And think of all the ‘Me Too’ cases and people who kept their mouths shut publically because they were afraid of powerful men like Harvey Weinstein and Matt Lauer and Charlie Rose. Anonymous sourcing is important.”

First Amendment implications

Barbara Petersen, a longtime First Amendment lawyer in Florida and now executive director of The Florida Center for Government Accountability, warned that “this bill will have a huge impact on everyday people who are just posting to their Facebook page or Twitter feed. It will have a huge impact on organizations and Fox news kind of people who make assertions and add opinions to their reporting quite regularly. It will get everybody. It’s not about big media.”

One of the most troubling aspects of HB991 in her mind is the prescription to force a defendant who gets sued by a public figure under a new law, and loses, to pay potentially huge and prohibitive attorney fees and court costs.

“They’re flipping things, it’s like who pays in a SLAPP lawsuit,” she said. SLAPP is an acronym for strategic lawsuit against public participation, an effort to intimidate or silence critics who can’t shoulder the costs of their own legal defense and have to drop their criticisms or censor themselves into silence.

“One of the first articles we ever published was about a woman in the Florida Panhandle being sued for defamation by a developer because of a Facebook post,” Ms. Petersen said.

“Rather than becoming a rarity, that will become common with this law. The developer had been known for building in flood zones, and somebody posted they’d bought a house from this developer. The woman’s Facebook reply was as innocuous as, ‘Oh, hope you have good flood insurance.’

“There will be no protection for people like that, no protection for anybody who wants to get involved in their community or voice their opinion.”

Passage of the proposed HB991, she predicted, would result in Florida becoming a destination state not just for the tourists but for the litigious.

At the Florida First Amendment Foundation, executive director Bobby Block, himself a Republican, he noted, worried that some people likely to be lit up by the high beams of this legislation haven’t gotten the message.

“Conservatives in the media sector are very worried by this bill — they see it as a blunt instrument that will impact them as much as anybody else, or more,” he said.

“But, they’re between a rock and hard place.

On the one hand, they’re afraid of this bill if it becomes law. But on the other hand, don’t want to get crosswise with Gov. DeSantis. So they’re gently trying to send signals that they’re concerned, but trying to do it in a soft way.”

That gives rise to his biggest concern.

“Most worrying to me: All the news coverage isn’t really reaching conservative audiences. And so, in many ways, if this does force changes in programming and other things by media outlets, there will be a lot of very upset voters amongst the base in Florida because of how this could impact their viewing and listening habits.”

On his report card, therefore, the bill fails.

“The full bill is horrendous, a blunt instrument, largely unconstitutional. It would have a terrible impact on every media sector: traditional media, liberal media, mainstream and conservative media and social media.

“Anybody who picks up a pen or a microphone or sits at a keyboard, would have to be extraordinarily careful with what they write, print or post.”

Dick Batchelor, a former state legislator and now president of Dick Batchelor Management Group Inc. based in Orlando, consultants in business development, government affairs and public policy, also is a Marine Corps veteran of Vietnam and the bloody Tet offensive of 1968. He traveled to Tallahassee to deliver his opinion about the bill to legislators, in part because he takes it personally, he said.

“Gov. DeSantis likes the quote: ‘Freedoms are worth fighting for.’ Well, that’s right, they are. And this bill takes away freedoms I fought for — and a lot of other people around Florida did, too.

“To me 991 has more than a chilling effect on people’s right to say things — to be quoted or to blog or whatever.

“One thing I learned in the Legislature: The Legislature does not have the power to pass legislation in direct conflict with federal law, I don’t care what it says. That’s No. 1. No. 2, the bill stymies the public’s right to speak out against officials.”

HB991, together with what Mr. Batchelor and others call “the blogger bill” — that’s SB 1316 sponsored by Sen. Jason Brodeur, R-10, requiring bloggers who write about the governor, lieutenant governor, attorney general and some other officials to register with the state — would create a tyranny he calls Orwellian, a reference to George Orwell’s iconic look at tyranny in the novel, “1984.”

“It’s Orwellian to have a package of legislation that in total basically disarms the public of their constitutional rights of free speech,” he said.

“They already passed this in 2014 — Putin passed it, in Russia. Anybody blogging about Putin or the government has to register.” Gov. DeSantis has said he doesn’t support SB 1316.

But in America, and in the Sunshine State, Mr. Batchelor asks, “Why not give as much respect and deference to the First Amendment as you do to the Second Amendment?”

That’s not happening, though. Instead of insisting the government get its hands off American rights as it is doing in newly proposed legislation now before the legislature to take away the current requirement for gun permits, and to reduce the minimum age of gun purchases from 21 to 18, the government is putting its hands all over the First Amendment, seeking to control not guns but speech, he suggested.

As Mr. Block at the Florida First Amendment Foundation concludes, “This is not a Democratic issue, a conservative issue, a liberal issue or a Republican issue. It’s a First Amendment American issue touching everybody.

“Supporters of the Second Amendment are always careful to precisely parse the words in the Second Amendment. Let’s do that with the First Amendment.”

One more thing, he noted:

“The Founding Fathers did not write, ‘we want an accurate press, a trustworthy and hardworking press, a kind and compassionate press.’ Instead, they talked about a FREE press. The right to be sometimes idiotic, but free. An open marketplace of ideas that everyone could be part of. A mix of the sublime and the ridiculous.

“We’ve been doing this for almost 250 years.” ¦

In the KNOW

HB 991: Defamation, False Light, and Unauthorized Publication of Name or Likenesses

GENERAL BILL by (Alex) Andrade ; (CO-INTRODUCERS) (Mike) Beltran

Defamation, False Light, and Unauthorized

Publication of Name or Likenesses; Provides that journalist’s privilege does not apply to defamation claims when defendant is professional journalist or media entity; revises provisions concerning venue for certain actions; provides for attorney fees & costs to prevailing plaintiffs in certain actions; specifies certain persons may not be considered public figures; provides certain allegations are defamatory per se; provides statutory damages to prevailing plaintiffs who are subject of such allegations; creates presumption that statement by anonymous source is presumptively false; provides public figure does not need to show actual malice to prevail in defamation action.

Effective Date: 7/1/2023

What the state’s constitution says

The Florida Constitution exists, according to the preamble, “to secure its benefits, perfect our government, insure domestic tranquility, maintain public order, and guarantee equal civil and political rights to all…” There are 12 articles. In Article I, “Declaration of Rights,” there are 27 sections that include definitions of “basic rights,” “religious freedom,” “the right to assemble,” and others.

This is Section 4, Freedom of Speech and Press:

“Every person may speak, write and publish sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for defamation the truth may be given in evidence. If the matter charged as defamatory is true and was published with good motives, the party shall be acquitted or exonerated.”

Lee County Legislative Delegation:

Rep. Jenna Persons-Mulicka, R-78, chair. Tel: 850-717-5078 (Tallahassee); 239-338-2328 (Fort Myers).

Sen. Kathleen Passidomo, R-28, senate president. Tel: 239-417-6205 (Naples), or 850-717-5082 (Tallahassee). Email: Passidomo. Kathleen@flsenate.gov.

Sen. Ben Albritton: R-26. Tel: 850-487-5027 (Tallahassee); 941-575-5717 (Punta Gorda); 863-534-0073.

Sen. Jonathan Martin, R-33. Tel: 850-487-5033 (Tallahassee); 239-338-2570 (Fort Myers).

Rep. Mike Giallombardo, R-79. Tel: 850-717- 5079 (Tallahassee); 239-772-1291 (Cape Coral).

Rep. Spencer Roach, R-76. Tel: 850-717-5076 (Tallahassee); 239-656-7790 (North Fort Myers).

Rep. Adam Botana, R-80. Tel: 239-949-6279 (Bonita Springs), or 850-717-5080 (Tallahassee). Email: Adam.botana@myfloridahouse.gov

Rep. Tiffany Esposito, R-77. Tel: 850-717-5077 (Tallahassee). No district contact is listed at the state website, www.myfloridahouse.gov.

General contact form for the Lee delegation: www.leedelegation.com/contact.html

Collier County Legislative Delegation:

Rep. Bob Rommel, R-81, chair. Tel: 239-417- 6200 (Naples) or 850-717-5081. Email: Bob. Rommel@myfloridahouse.gov

Sen. Ana Maria Rodriguez, R-39. Tel: 305- 470-2552 (Doral); 850-487-5040 (Tallahassee). Email: rodriguez.anamaria.web@ flsenate.gov.

Rep. Adam Botana, R-House District 80. Tel: 239-949-6279, or 850-717-5080. Email: Adam.botana@myfloridahouse.gov.

Rep. Lauren Melo, R-82. Tel: 239-417-6270 (Naples); or 850-717-5082. Email: Lauren. Melo@myfloridagov.org.

Sen. Kathleen Passidomo, R-28, senate president. Tel: 239-417-6205 (Naples), or 850-717-5082 (Tallahassee). Email: Passidomo. Kathleen@flsenate.gov.

Charlotte County Legislative Delegation:

Sen. Ben Albritton, R-26. Tel: 850-487-5027 (Tallahassee); 941-575-5717 (Punta Gorda); 863-534-0073.

Rep. Michael Grant, R-75: Tel: 850-717-5075 (Tallahassee); 941-613-0914 (Port Charlotte).

Rep. Spencer Roach, R-76: Tel: 850-717-5076 (Tallahassee); 239-656-7790 (North Fort Myers).

Palm Beach County Legislative Delegation:

Sen. Tina Polsky, D-30. Tel: 850-487-5030 (Tallahassee); 561-443-8170 (Boca Raton). Email: Polsky.Tina.web@flsenate.gov.

Sen. Gayle Harrell, R-31. Tel: 850-487-5031 (Tallahassee); 772-221-4019 (Stuart). Email: Harrell.Gayle.web@flsenate.gov.

Sen. Bobby Powell, D-24. Tel: 850-487-5024 (Tallahassee); 561-650-6880 (West Palm Beach). Email: Powell.Bobby.web@flsenate. gov.

Sen. Lori Berman, D-26. Tel: 850-487-5026 (Tallahassee); 561-292-6014 (Boynton Beach). Email: Berman.Lori.web@flsenate.gov.

Rep. John Snyder, R-86. Tel: 850-717-5086 (Tallahassee); 772-210-5626. Email: John. Snyder@myfloridahouse.gov.

Rep. Mike Caruso, R-87. Tel: 850-717-5081 (Tallahassee); 561-650-1066 (West Palm Beach). Email: Mike.Caruso@myfloridahouse. gov.

Rep. David Silvers, D-89. Tel: 850-717-5089 (Tallahassee); 561-357-4824 (Lake Clarke Shores). Email: Silvers.David@myfloridahouse. gov.

Rep. Joseph Casello, D-90. Tel: 850-717- 5090 (Tallahassee); 561-292-6015 (Boynton Beach). Email: Joseph.Casells@myfloridahouse. gov.

Rep. Kelly Skidmore, D-92, Tel: 850-717-5092 (Tallahassee); 561-470-2086 (Boca Raton). Email: Kelly.Skidmore@myfloridahouse.gov.

Rep. Katherine Waldron, D-93. Tel: 850-717- 5093 (Tallahassee); no district phone listed. Email: Katherine.Waldron@myfloridahouse. gov.

3 responses to “Legislative MUZZLE”

  1. Jerry smith says:

    Is florida weekly becoming another liberal mouthpiece? It’s a shame. Florida of all places allows free speech. This bill says be sure you’re right, or you can be sued. It holds everyone accountable for spreading lies and gossip, as it should be. It was nice to have a paper that stayed out of politics.

  2. Linda Lee Sechrist says:

    OMG!

  3. Janet nelson says:

    This HB991 bill is contrary to US Constitution and should not be voted. It will crowd the penal system..

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