Amid his culture war campaign against “woke” liberals, critical race theory and other bugaboos of the political right, Florida Gov. Ron DeSantis has taken his ongoing culture war to an old, reliable political enemy: the media.
With a defamation bill working its way through the state’s legislature, DeSantis is trying to put some legal teeth in his pitch.
As he is expected to challenge Donald Trump and others for the 2024 Republican presidential nomination, the governor is backing a bill in his state’s Republican-dominated legislature to make it much easier for public figures to sue news outlets for defamation – and win.
He gave the world a preview last month with a contrived “roundtable discussion” in a mock television studio livestreamed on social media under the topic “Legacy media defamation practices.” His guests were plaintiffs and lawyers who had sued major media companies, including Fox News and The Washington Post.
DeSantis called major media companies “probably the leading purveyors of disinformation in our entire society,” adding, “There needs to be an ability for people to defend themselves.”
Of course, that ability already exists. But that’s not good enough for DeSantis.
The governor has taken on New York Times v. Sullivan, a landmark 1964 Supreme Court case that said public officials could not successfully sue for libel or defamation without proving that the false statements made against them were made with “actual malice,” meaning with knowledge that the statements were false or made with reckless disregard for whether or not they were false.
Florida state Rep. Alex Andrade, the bill’s author, argues that the Supreme Court’s “actual malice” standard is too high, claiming it is not a case of government shutting down free speech, which would be unconstitutional, but a “private cause of action.”
Unfortunately, two justices on the Supreme Court, Clarence Thomas and Neil Gorsuch, have already expressed a willingness to “revisit” or overturn Sullivan if the opportunity comes up. It could, if the Florida bill is enacted, although the court has bypassed such opportunities in the past.
After the court overruled Roe v. Wade, following a half-century of seemingly settled law, anything can happen.
DeSantis’ mission echoes Trump’s early days in his 2016 campaign when he vowed to fight news outlets that dared to publish harmful coverage about him. “We’re going to open up those libel laws,” he told supporters. “So when The New York Times writes a hit piece, which is a total disgrace, or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”
You’ll have to catch us first, I said to myself. If the media content in question is wrong, the media deserve to be called out on it.
But DeSantis and Trump are both wrong to imply that “disinformation” applies only to ideas they don’t like and that it comes only from the left.
For example, the hottest newsmaking defamation lawsuit these days doesn’t center on The New York Times, CNN or other perennial targets of the right. Rather, it involves Fox News and the disclosures pouring out of lawsuits by voting machine companies for its misleading coverage of the 2020 election, including claims that the vote counting might have been rigged.
Worse, evidence shows that some of the channel’s key figures apparently sought to prevent Fox reporters from fact-checking those assertions.
And Fox is not alone among conservative outlets already under a spotlight for truthfulness. Lowering the threshold for defamation lawsuits could be more dangerous for the conservative media ecosystem, with its many social media and websites, than it would be for anyone else.
“Disciplined conservatives thinking about 2024 should understand that expanding defamation liability would silence voices across the political spectrum,” Seth Stern, advocacy director for the Freedom of the Press Foundation, recently posted on the group’s website. “It would cause most harm not to mainstream media outlets that can afford lawyers but to independent news outlets and opinionated individuals, including conservatives, who cannot.”
He’s right. This country’s constitutional speech and press freedoms are a model for the rest of the world. That model can be tarnished by government overreach that actually silences the free exchange of ideas, even as it claims to protect them.
Clarence Page is a columnist for the Chicago Tribune. He may be contacted at:
cpage@chicagotribune.com
Twitter: @cptime
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