stLouISTFlorida lawmakers want online news outlets to self-censor
Journalists and press freedom advocates were rightly appalled last month when a single judge in small-town Mississippi ordered one newspaper to remove one allegedly defamatory editorial from its website. But now, Florida’s legislature is pushing countless news outlets across the Sunshine State to do the same thing.
Florida’s Senate Bill 752 would amend the state’s retraction statute, which limits defamation damages if a news outlet publishes a correction or retraction, to also require outlets to permanently remove entire articles containing even a single alleged fallacy from websites they control. Outlets that fail to do so would also lose the right to assert crucial legal defenses.
It’s the latest in a series of plaintiff-friendly libel bills in Florida. But while the prior bills failed to gain traction after pushback from across the political spectrum, SB 572 was voted favorably out of Florida’s Senate Judiciary Committee on Wednesday morning.
The news isn’t all bad. Just before the vote, the bill was amended to scrap previous language requiring outlets wanting to qualify for the retraction statute’s benefits to delete articles not only from their websites but the entire internet — a technical impossibility.
That “simply cannot be done,” Bobby Block, executive director of Florida’s First Amendment Foundation, explained in written testimony opposing the prior version of the bill, which he submitted in advance of Wednesday’s hearing. “Even China with its massive state-run censorship efforts cannot fully scrub content from the internet.”
While the amendment made the bill somewhat less awful, lawmakers should’ve done away with the legislation altogether. Elected officials should not be incentivizing the press to self-censor online.
And if the Florida bill passes, expect copycat bills elsewhere. Even if that doesn’t happen, Florida law can be applied against any news outlet that is subject to the jurisdiction of Florida courts, whenever it’s based. All a plaintiff needs to do is claim they were harmed because someone in Florida read the article online.
Increased damages and loss of legal defenses
Under the bill, when news outlets comply with the removal provision, plaintiffs suing them are limited to “actual damages” – money they can prove they lost because of the defamation. When outlets don’t comply, everything is on the table, including awards of punitive damages that are often exponentially higher than actual damages.
Failure to remove online articles would also cost outlets their “fair reporting privilege,” which protects them from liability when they publish fair and accurate reports from official sources. That privilege recognizes that journalists must be free to report false statements by public officials or at official proceedings because the public needs an accurate account of what government officials are doing and saying, even when they lie.
Lowering the bar for defamation claims serves only to empower trial lawyers at the expense of press freedom.
Bobby Block, Florida First Amendment FoundationOutlets would lose the privilege not only when they fail to remove articles adjudicated to be false but when they don’t act after receiving “notice of facts that would cause a reasonable person to conclude that such statement was false.” Plus, leaving the article online would extend the statute of limitations for plaintiffs looking to sue the outlet over the article.
It’s a safe bet cash-strapped news publishers aren’t going to bet their company that a judge or jury will agree that their decisions to keep articles online are “reasonable,” and will err on the side of removing even defensible content.
First Amendment problems
There are significant First Amendment problems with SB 752. As we saw in Mississippi, the government can’t require news outlets to remove articles. That’s called a “prior restraint,” which the Supreme Court considers the “most serious” of First Amendment violations.
SB 752 doesn’t require news outlets to take down articles, but conditioning benefits (such as the availability of legal defenses and limitations on damages) on doing so violates the spirit, and arguably the letter, of the prohibition on prior restraints.
Constitutionality aside, there is no need for entire articles to be removed from the internet because of one allegedly false statement when there are tried and true non-censorial fixes, like corrections and retractions, that preserve the public benefit of the article’s accurate content.
Let’s say a news report exposed a fraudster who swindled Floridians out of $50 million — except it turned out the number was closer to $35 million. Or a report said a suspected serial killer was investigated for twelve murders when he was actually connected to “only” eight. Do Floridians want the whole of that reporting to disappear from the internet?
The problem extends beyond high-profile crimes. Private citizens frequently demand that newspapers remove a police blotter entry about, say, their DUI or domestic violence arrest. When those demands are reasonable, newspapers can (and regularly do) voluntarily comply. That’s up to them and their constitutionally protected editorial discretion.
But the demands often are not reasonable. With SB 752, newspapers are more likely to heed a baseless takedown demand rather than risk a legal battle over something of relatively low interest to readers. But what happens five years later when the subject of the disappeared blotter entry runs for city council?
An ineffective remedy
The bill manages to be both overbroad and ineffective. Once news is reported, the bell can’t be unrung. Articles are archived, cached, screenshotted, reposted, and republished by everyone from legitimate wire services to bots. From the Internet Archive’s collection of television news to TikTok influencers reading the newspaper, there are innumerable ways news spreads online.
While the internet makes erasure of news impossible, it also makes corrections far more effective than they used to be. Whereas in the old days, corrections buried in subsequent newspaper editions were easily overlooked, news outlets can now prominently display them as part of the original erroneous article. But that assumes the original article still exists.
By pushing publishers to permanently delete entire articles, the bill leaves no place for news outlets to append a correction or retraction to the original piece. People who read an article and don’t know it was later deleted will not be able to find the correction and will have no reason to doubt the accuracy of what they read.
And let’s not forget the “Streisand Effect,” the phenomenon once experienced by the famous singer where legal actions to suppress news end up amplifying it instead. The first time a news outlet censors itself to comply with the law, journalists and press freedom organizations are going to write about it. We sure will.
We saw that dynamic play out in the aforementioned Mississippi case. The judge’s unconstitutional order created a media firestorm, calling far more attention to the editorial than it otherwise would have received, and other newspapers stepped up to republish the original editorial as a show of solidarity. Eventually, the judge and city were forced to back down, and the newspaper put the editorial back on its website.
What happened to tort reform?
As Block of the First Amendment Foundation wrote in his testimony for Wednesday’s hearing, SB 752 “would embolden unscrupulous lawyers and flood the courts with frivolous lawsuits. … Lowering the bar for defamation claims serves only to empower trial lawyers at the expense of press freedom.”
Florida, like many other states, has laws on the books to combat strategic lawsuits against public participation, or SLAPPs — abusive lawsuits filed by the wealthy and powerful to harass their critics with the threat of legal fees. So why pass legislation that would have the opposite effect? SB 752 would incentivize baseless accusations of defamation in hopes of getting articles taken down, by plaintiffs who know they won’t ultimately prevail in court.
James Lake, a partner at the Tampa law firm Thomas and LoCicero who focuses on media law, stated in his testimony to Florida’s conservative legislature that, as a registered Republican, he is proud of Florida’s progress on reducing frivolous litigation in state courts. But SB 752 would “undermine the benefit tort reform has done,” he told the committee.
It’s almost as if the Floridians who want to weaken defamation defenses and encourage censorship only like tort reform when it stops people from suing them — not so much when it stands in the way of their suing their critics into silence.
