In a throwback to the Alien and Sedition Acts of 1798 — one of the sorriest chapters in our history — Florida governor Ron DeSantis is pushing Florida House Bill 991 to punish, fine, and discredit those who criticize him unfairly (in his opinion).
The bill rewrites defamation law in Florida to remove the protection the U.S. Supreme Court has bestowed on journalists who criticize public figures like him!
Under the landmark 1964 case New York Times v. Sullivan, the Court held that a reporter could not be sued for defaming or libeling a public figure merely because the statement was false.
Rather the plaintiff accusing the journalist of libel must show the reporter knew the statement was false and published it nevertheless with a “reckless” disregard for the truth or with actual “malice.”
DeSantis’ bill would remove this threshold and the protection it gives public figures.
In the United Kingdom, there is no special protection of public figures, and you may sue a journalist if his charges are not true. You don’t have to prove malice or that the writer knew it was false.
This looser standard for suing for libel against public officials has dramatically restrained free speech in Britain and DeSantis would carry this unfortunate law to our shores.
Under this new proposal — virtually guaranteed of passage in Florida’s rubber stamp legislature — a reporter or even a political opponent can be sued for libel simply for saying something that is not true in the opinion of the court.
In our current politicized and polarized environment, we can anticipate dozens of lawsuits under DeSantis’ proposal.
But what if the attacks on DeSantis and other public officials are untrue?
Do you trust the judicial system to ferret out the truth when political charges are made? Is it “true” that President Biden is demented? Is it “true” that Trump did not foment the January 6th protests? Is it “true” that Biden has caused inflation or opened our borders? Is it “true” Democrats are soft on crime?
Who can trust partisan courts — or even journalistic “fact checkers” — to get it right?
And, even if they do, what about the chilling effect on free speech of holding the threat of massive damages and court costs over the heads of any government critic?
President John Adams ruined his chances for re-election and irrevocably damaged his historical reputation for passing a similar law, called the Sedition Act, in 1798. Under its nefarious provisions, several of his critics — including Congressman Matthew Lyons — went to jail for criticizing the president. (Lyons was the only man ever re-elected to Congress while in jail).
Thomas Jefferson ran for president pledging to repeal the odious law which he let expire in 1803.
Does DeSantis want to follow in the footsteps of the Alien and Sedition Acts?
And what about political opponents of Gov DeSantis? Can he sue President Trump for libel when he accuses the governor of having voted to cut Social Security and Medicare? Would the threat of libel action hang over Trump’s every charge?
And the protection accorded public officials in DeSantis’ proposal only extends to enumerated state officials like the governor, the attorney general, and so forth. There is no protection for ordinary citizens who seek to sue their elected officials for libeling them. They will still have to prove recklessness or malice.
How could DeSantis be so insensitive to protecting free speech? Remember that laws cut both ways and what a Republican proposes today could be used ruthlessly by a Democrat in the future.
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