DeSantis’ Office Pushed for a Bill to Weaken Media’s Protections Against Defamation Suits by Public Figures

Photo by Joe Raedle/Getty Images.

A top staffer for Gov. Ron DeSantis (R-FL) pushed for a bill that would have weakened a key legal argument media outlets have used to defend themselves against defamation lawsuits by public figures, according to a report by The Orlando Sentinel.

A public records request revealed DeSantis’ legislative affairs director, Stephanie Kopelousos, emailed staffers for several legislators, including State Sen. President Wilton Simpson (R) and State Sen. Jennifer Bradley (R), to promote a draft bill that would “challenge decades-old First Amendment protections for the news media and make it easier for high-profile people to win defamation lawsuits,” wrote the Sentinel’s Skyler Swisher.

No bill was ever actually filed, but the correspondence does shed light into both the mindset of the governor’s office and what agenda items he may support if he is elected to a second term in November.

The issue centers around a legal standard established in the 1964 U.S. Supreme Court case of New York Times Co. v. Sullivan, in which the court ruled that a plaintiff who is a public figure must prove not only the standard elements of a defamation case (publication of a false defamatory statement to a third party) but also prove “that the statement was made with ‘actual malice’ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

The Sullivan “actual malice” standard was a key factor in a judge’s dismissal of former Gov. Sarah Palin’s (R-AK) lawsuit against the New York Times in February, with the judge noting “the law sets a very high standard” and Palin had failed to meet it in her complaint. (The jury was allowed to finish their deliberations and reached the same conclusion as the judge the very next day: the Times had not defamed Palin and was not liable.)

Kopelousos’ emails, which were sent just before the 2022 general session kicked off Jan. 11, included both a draft of proposed legislation and a briefing document that “declared that the goal was to end federal standards established in the Times ruling and make defamation purely a matter of state law.”

The draft bill would have attempted to make several notable changes to First Amendment law practice in Florida, mainly by changing how “actual malice” was determined, to instead view “a failure to validate or corroborate the alleged defamatory statement” as evidence of actual malice, a lower standard than the Supreme Court’s “reckless disregard” for the truth.

The bill also redefined “public figure” to more limited categories, and presumed any statements at issue in defamation cases that were made by anonymous sources to be false.

DeSantis’ office did not respond to the Sentinel’s request for comment.

Former President Donald Trump frequently railed against libel laws when he was in office, calling them a “sham and disgrace” and vowing to “take a strong look at that” and pass new laws that better represented “fairness.” DeSantis’ rhetoric hasn’t gone quite that far, but he has often slammed the media for criticizing him and his spokesperson Christina Pushaw has gone to even further extremes.

This bill was never submitted, but if it had been, it would have almost certainly set up a clash with existing Supreme Court precedent from Sullivan, but that isn’t the type of obstacle that would seem likely to slow down DeSantis or his GOP allies in the legislature.

Republican state lawmakers have repeatedly shown their enthusiasm for carrying the governor’s water during this past year. For example, Bradley sponsored the DeSantis-backed bill to repeal Disney’s Reedy Creek special taxing district and the GOP-controlled House and Senate passed a constitutionally-dubious congressional district map handed to them by the governor’s office with nary a peep of objection from Republicans after DeSantis vetoed the one the legislature had created. Both those bills passed in a less-than-a-week special session with no Republican dissent.

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