HUMAN EVENTS: Florida’s libel bill paves the road to free speech Hell

At Human Events, we have blown the whistle on many threats to America and our freedoms as American citizens. Those threats have, so far, come almost exclusively from the Left, who are obviously disinclined to heed our counsel, though there are those who are inclined to heed it who can still use our arguments to defeat these threats. We did not anticipate that we might have to editorialize against similar threats from our own side, because why would they?

Regrettably, this week, we were given an answer: because the Left has so abused some of those freedoms that some on the Right are prepared to overreach in order to defeat them, without pausing to think how their cure may be worse than the disease; that it may, in fact, hit us harder than it does the Left.

Such is the case with Florida House Bill 757, a bill which is supposedly designed to defeat the Left’s attempt to weaponize journalism by, as President Trump might say, “tightening up libel laws.” In theory, these goals are noble, but unfortunately, House Bill 757 tightens up those laws so much that conservatives themselves may find it difficult to breathe. This is why you see everyone from our own Jack Posobiec, to “Libs of TikTok” creator Chaya Raichik, to former Trump speechwriter Stephen Miller, to even the New York Post sounding the alarm.

Allow us to explain: Libel laws in the United States have been extremely loose ever since the Supreme Court issued its landmark decision in New York Times Co. v. Sullivan in 1964. The case was 9-0, and concerned an advertisement which ran in the New York Times on behalf of the Committee to Defend Martin Luther King and the Struggle for Freedom in the South. The advertisement misstated the facts of King’s treatment by authorities in Montgomery, Alabama, leading to a lawsuit for libel by Montgomery Public Safety Commissioner L.B. Sullivan. The court held that when it comes to public officials or candidates for public office, libel lawsuits can only succeed in cases of “actual malice,” IE when the publisher knows the claim they are publishing is not true and chooses to run it anyway, rather than merely in cases where facts are misstated. In short, public officials and candidates for public office can only sue journalists for libel when they can prove that the journalist intended to smear them.

In 1964, this was not an unreasonable ruling. While most of the press did skew Left at the time, the commitment to objectivity and to getting stories right on the facts still existed, and moreover, to sue a newspaper for what an advertiser said would’ve placed an unreasonable burden on the paper rather than on the advertiser. Finally, the number of people who could claim this privilege to report on public figures was small, seeing as the only journalists were those employed by one of a small number of official publications.

However, in the time since then, the nature of the journalism profession has radically changed, in some ways for the better and in other ways decidedly for the worse. The good change is that thanks to the advent of the internet, citizen journalism is now a fact of life in a way that it was not and could not be in 1964 because concerned citizens did not possess the means to distribute their reporting in the same way that newspapers did. Now, of course, thanks to X (formerly Twitter), YouTube, and any number of other platforms, they can. Which means that any law surrounding libel necessarily applies to any citizen who decides to try their hand at reporting on public affairs. In this context, New York Times Co v. Sullivan is a benefit, because it prevents lawsuits against groups like Project Veritas or other guerrilla citizen journalist outlets over the kind of minor hair-splitting “mistakes” that might delight the Pinocchio counters in the mainstream media, but which are nonetheless made in good faith and usually do not compromise the underlying reporting.

Unfortunately, journalism has also changed for the worse since then, again, thanks to the internet. Now that advertising dollars are spent much more on social media than on papers themselves, for the mainstream publications of the past, getting eyeballs and clicks has taken a backseat to accuracy. And sadly, when it comes to maintaining a readership, reinforcing partisan narratives matters far more than good or even accurate reporting. If you want to see proof of that, look at the downfall of Gawker, which made huge amounts of money and yet still ended up being brought down by (what else) a libel suit. Yet, what the fall of Gawker taught large media companies was not to cool down on the overheated and accuracy-averse narrative creation, but instead to shore up their legal defenses and only to smear people without the resources to strike back. Moreover, also thanks to the internet, anyone who becomes famous on social media automatically becomes a “public figure” who has to prove actual malice in order to sue for libel: a very difficult task, considering that the resources required to even get a libel suit to the discovery phase, where actual malice could be exposed, costs huge amounts of money. In this context, New York Times Co. v. Sullivan is a terrible obstacle to justice, because it permits newspapers to smear anyone who goes viral on Twitter and not worry about any legal consequence so long as they can afford lawyers and their targets can’t.

It is in this context that Florida House Bill 757 was written, and written, moreover, pretty clearly as a challenge to New York Times Co. v. Sullivan. Florida House Bill 757 provides, among other things, that whenever a journalist publishes a false claim about a politician that relies on anonymous sourcing, the court must assume that it was done with “actual malice,” thus effectively destroying Sullivan’s most daunting test. This may sound like good news, but what it actually does is turn Sullivan on its head and make it a vehicle for shutting down conservative journalists altogether.

Why? Well, remember what we said about citizen journalists? Well, who do you think stands a better chance in a libel suit: a professional politician with a political machine behind them or a random citizen with a camera? The question answers itself. To their credit, the authors of House Bill 757 tried to get around this by making the bill only apply to journalists with at least 1,000,000 subscribers, but that does not help the situation. Firstly, because it’s hard to see how any court would uphold it, and secondly, because even if they did, it would simply ensure that as soon as a conservative influencer gets real visibility, they can immediately be bankrupted by their enemies. Media outlets like…well, the New York Times can absorb a lot of costs and muddy the waters on libel lawsuits with their crack team of lawyers no matter what. But what about a YouTuber who gets 1,000,000 views on a YouTube video? Or 1,000,000 impressions on an X post? Do we really want to create a disincentive for citizens of Florida to become national figures, on the off-chance that someone decides to sue them in their home county? We think not, and moreover, other conservatives agree.

Again, remember, the bill requires you to assume actual malice when a journalist makes a mistake. Any mistake. In other words, if, say, an anonymous mom sends a video exposing a teacher in a public school for teaching kids queer theory to a conservative influencer, but misspells the teacher’s name, and the video gets 1,000,000 views, boom, libel suit. If Chaya Raichik shares an insane TikTok post and misgenders the poster (whose pronouns are something insane like dragon/dragonself), libel suit. If our own Jack Posobiec were to receive a report from an anonymous whistleblower in the Deep State, and were to report on it, libel suit. Could some of these people win those suits? Sure, but that assumes they’d have the money to take the case to trial, rather than being forced to settle out of court by the bullying of superior legal forces.

Look. We appreciate the intentions behind Florida House Bill 757. We all want to stop the news media from deliberately smearing conservatives and their chosen politicians with the help of anonymous sources who may not even exist. We understand the necessity of challenging New York Times Co. v. Sullivan, which even Justices Clarence Thomas and Neil Gorsuch want to revise. But a sloppy, overbroad bill like this, which could and would be weaponized by well-heeled Leftists both in government and out to shut down less well-heeled citizen journalists whose financial resources may not necessarily match their reach, is not the answer. As the old saying goes, the road to Hell is paved with good intentions. As Florida House Bill 757 shows, the same can also be true of the road to the Gulag.
 

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