How DeSantis declared war on the last century’s 'most important 1st Amendment decision': legal analyst

08 March 2023

Gov. Ron DeSantis and his MAGA Republican allies in the Florida State Legislature have made no secret of their disdain for the mainstream media. During a roundtable discussion that he hosted in February, DeSantis argued that it should be easier to sue journalists for defamation. And a Republican ally, Florida State Rep. Alex Andrade, later proposed a bill that would do exactly that: Florida House Bill 951.

Andrade's bill would be a blatant violation of New York Times v. Sullivan, the landmark 1964 U.S. Supreme Court decision that set a tough standard for proving defamation. Under Sullivan, defamation must involve "actual malice," which is very difficult to prove. Dominion Voting Systems is trying to show "actual malice" in its $1.6 billion defamation lawsuit against right-wing Fox News, and ironically, the voting technology company would have an easier time proving its case if the High Court overturned Sullivan and agreed with Andrade's bill. Andrade and DeSantis believe that Sullivan was wrongly decided.

Meanwhile, Florida State Sen. Jason Brodeur (another Republican DeSantis ally) has proposed a bill that would require bloggers who write about state officials to register with the state government and file regular reports on their activities. Even former House Speaker Newt Gingrich (R-Georgia) has slammed the Brodeur-sponsored Florida Senate Bill 1316 as unconstitutional, tweeting, "The idea that bloggers criticizing a politician should register with the government is insane. It is an embarrassment that it is a Republican state legislator in Florida who introduced a bill to that effect. He should withdraw it immediately."

In a scathing op-ed published by The Guardian on March 7, journalist Trevor Timm — executive director and co-founder of the Freedom of the Press Foundation — warns that DeSantis and his allies have declared an all-out war on the U.S. Constitution's 1st Amendment. And Timm is as critical of Andrade's bill as he is of Brodeur's.

"Ron DeSantis, the Florida governor, and his cronies, not content with destroying free speech in public schools, have set for themselves a new target: destroying press freedom and every Floridian's right to criticize public officials," Timm argues. "Along the way, they aim to overturn the most important 1st Amendment U.S. Supreme Court decision of the 20th Century."

The decision that Timm is referring to is, of course, New York Times v. Sullivan. Timm notes that DeSantis and his allies are hoping to "weaken the 'actual malice' standard from Sullivan, to make it easier for public officials to sue newspapers or critics."

"Now, can states just pass laws that blatantly ignore Supreme Court precedent? Of course not," Timm explains. "Any responsible judge would strike this down as unconstitutional right away. But DeSantis may be hoping for a friendly appeals court ruling from a Trump-appointed judge or Supreme Court showdown to revisit the Sullivan ruling — following the same decades-long Republican strategy that finally overturned Roe v. Wade. And in the meantime, DeSantis can burnish his anti-media bona fides for his presidential run, and Republican legislatures around the country can use the opportunity to copy the bill or one-up him."

Timm points out that "many legal scholars consider" Sullivan the greatest 1st Amendment victory of "the last century" — a victory that DeSantis and his allies would like to roll back.

"It is one of the primary reasons newspapers in the U.S. can aggressively report on public officials and powerful wealthy individuals without the constant fear that they are going to be sued out of existence," Timm observes. "And up until a few years ago, when Justices Clarence Thomas and Neil Gorsuch started criticizing it, everyone assumed it was settled law."

Timm compares Brodeur's blogger bill to a draconian law that was passed under President Vladimir Putin in Russia in 2014.

"The proposed law, authored by state legislator Jason Brodeur, would — I kid you not — compel 'bloggers' who criticize the governor, other officers of the executive branch, or members of the legislature to register with the State of Florida," Timm observes. "Under the bill, anyone paid to write on the internet would have to file monthly reports every time they utter a government official's name in a critical manner. If not, they'd face potentially thousands of dollars in fines. It's a policy so chilling that it would make Vladimir Putin proud, and I wish that was hyperbole."

Timm continues, "In 2014, Russia's autocratic leader signed a very similar provision, then known as the 'blogger’s law.' As The Verge explained at the time, 'under it, any blogger with more than 3000 readers is required to register with the Roskomnadzor, Russia’s media oversight agency."

The agency that Brodeur has proposed would be similar to the pro-Putin Roskomnadzor, Timm argues.

"DeSantis has turned Florida into a national laboratory for speech suppression," the journalist warns. "And every American, Republican or Democrat, should be horrified."

Read Trevor Timm’s full op-ed for The Guardian at this link.

From Your Site Articles