Florida Man Wants To Bankrupt People Who Experience Discrimination Or Report On It
Jason Brodeur is a very big fan of the First Amendment!
There was a time when a lot of prejudice and discrimination was ignored, partly because those who practiced it had so much social power that outing it or even openly discussing it was a kind of a risk. There was an expectation that victims would just put up with it for the sake of social harmony, that those who did speak up were being annoying or pedantic or even “making trouble” or “making things worse” for others like them.
Those days are (at least a little bit) over. These things are discussed much more widely now, there is no social expectation that anyone is going to put up with it, and those who are guilty of them no longer possess the social power necessary to make things difficult for those who expose them. For most of us, this is great. For Florida Republicans … not so much.
In the last few years, Republicans in Florida have sought to claw some of that power back, legislatively. They’ve barred teachers from talking about racism or LGBTQ+ rights in hopes that if students never learn about our not-so-great history, if they never learn the language to discuss these matters, never learn to to recognize these things when they see it or to know when they have been insulted, never learned that these things are systemic rather than “just a few bad apples,” that things will go, at least a little bit, back to the way they used to be. But it’s not happening quickly enough for some of them.
That, we assume, is why state Senator Jason Brodeur is out here trying to pass legislation that will more or less make it illegal for journalists to report on accusations of discrimination in the state, or for anyone to publicly accuse anyone else of racism, sexism, transphobia, or homophobia. Well, that and his great love of free speech — the same love that last year inspired him to attempt to pass a bill requiring political bloggers criticizing Florida politicians to register with the state.
When that bill was introduced, a writer at the National Review bemoaned the fact that it was not simply seen as “one of those ‘crazy state legislator’ stories we read about up and down the country each year, rather than an actual threat to the First Amendment.” It would be lovely if that or this were such a story, but we have all learned a big lesson about underestimating the popularity of completely batshit-sounding laws proposed by Republican legislators, and those stories don’t exist anymore.
With SB 1780, which is as yet unnamed, Brodeur hopes to “loosen up” the libel laws by modifying a variety of existing statutes in order to make it largely impossible to publicly accuse anyone of racism, sexism, homophobia, or transphobia without going broke.
It’s pretty confusing, so let’s break it the hell down!
Providing that provisions concerning journalist's privilege do not apply to defamation claims when the defendant is a professional journalist or media entity
So, despite having a lot of terrible, terrible laws in general, Florida actually has some pretty great laws when it comes to journalism. The reason why we see so many wacky “Florida” stories coming out of the state is the result of their Sunshine Laws — public records laws that are some of the most expansive in the nation.
Florida’s Journalist Privilege statute holds that “[a] professional journalist has a qualified privilege not to be a witness concerning, and not to disclose the information, including the identity of any source, that the professional journalist has obtained while actively gathering news.” This exception would mean that a journalist could be forced to disclose the identity of an anonymous source claiming to have been discriminated against or witnessing discrimination — which would both discourage people from coming forward and discourage journalists from covering these subjects.
Defining the term "defamation or privacy tort"
This part of the bill would revise the definition of defamation in the state to include “utterance on the internet” — meaning that people could be sued for social media posts criticizing people for being racist, sexist, homophobic or transphobic.
Specifying that certain persons may not be considered public figures for purposes of certain actions
This part creates a whole new subsection of Florida’s journalism statutes declaring that people who make asses out of themselves in public and are caught on camera doing so are not public figures for the purposes of defamation.
It reads:
Limitations on judicial determination of a public figure.
A person may not be considered a public figure for purposes of establishing a defamation or privacy tort claim if his or her fame or notoriety arises solely from one or more of the following:
1. Defending him or herself publicly against accusations.
2. Granting an interview on a specific topic.
3. Public employment other than elected office or appointment by an elected official.
4. A video, image, or statement uploaded on the Internet that has reached a broad audience.
What this means is that someone can actually get on camera, talk about how much they like discriminating against people or literally be caught in the act doing so, and then sue anyone who accuses them of discrimination.
Specifying that a fact finder may infer actual malice in certain circumstances
In addition to more obvious reasons a fact finder may “infer actual malice,” this part of the bill states that “an allegation that the plaintiff has discriminated against another person or group because of their race, sex, sexual orientation, or gender identity constitutes defamation per se,” meaning that it is automatically considered to be defamatory.
Topping it off, the bill then states that a person’s religious or “scientific” beliefs (ie: being factually incorrect about science) cannot be used as proof of discrimination. This means that if someone’s boss tells them that they hate LGBTQ+ people because God told them to or discriminates against trans workers because they learned all the science they needed to ever learn in Kindergarten Cop, or posts excessively about this online, then that cannot be used as evidence of discriminatory behavior. Given the rest of this, one imagines that it would especially apply if the discriminatory behavior were caught on video.
Providing statutory damages to prevailing plaintiffs who are the subject of such allegations
Plaintiffs who win their defamation cases are to receive statutory damages of at least $35,000, in addition to all other damages. So this will be quite the cash cow for Florida’s bigots.
Creating a presumption that a statement by an anonymous source is presumptively false for purposes of a defamation action
This is relatively self-explanatory — if a source doesn’t go on the record, any evidence they give is presumed false. This has been a particular bugaboo for the MAGA crowd for years now, as their lack of understanding of “how journalism works” has led them to believe that journalists regularly invent anonymous sources out of whole cloth and that anything an anonymous source says that they don’t like is automatically false.
The section also states that if a defendant refuses to give up their source, all the plaintiff has to do is “prove that the defendant acted negligently in making the defamatory statement.”
This is all especially disturbing given the fact that sources in these cases very often need to stay anonymous to protect their jobs and future career prospects and will be less likely to come forward if required to provide their actual identity. It’s also, given the current political environment, the kind of thing that could put them in actual, physical danger.
Providing that a public figure does not need to show actual malice to prevail in a defamation action in certain circumstances
What circumstances, you ask?
A public figure does not need to show actual malice to prevail in a defamation cause of action when the allegation does not relate to the reason for his or her public status.
This part is beyond dangerous, particularly considering the fact that this would also apply to social media users. The “actual malice” standard exists for a reason — it protects criticism, it protects journalists from having their lives ruined over truly innocent mistakes and is necessary for free speech to exist.
Providing that a person who gives publicity to a matter concerning a natural person that places that person before the public in a false light may be liable for damages in certain circumstances
This, one would imagine, would apply to those sharing articles on social media.
One thing Jason Brodeur may want to consider is that much of his bill does not specifically deal with discrimination and, when taken with consideration for other parts of his bill, could result in right-wing conspiracy theorists getting burned pretty badly. It could mean that Tom Hanks could, hypothetically, sue a bunch of random QAnon people in Florida for accusing him of being a child molester.
In fact, rather ironically, much of his nonsense bill could acually be used by teachers and drag queens looking to sue random bigot Floridians for calling them groomers or child molesters. Those who share content from Libs of TikTok could also be at risk. The Right makes up a hell of a lot more shit than we do.
As funny as that would be, at least for a moment, it’s certainly not worth the obvious risk to the First Amendment as well as the rights of those who have suffered discrimination (or those who report on it).
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Man, these cats are getting uglier and uglier.
Just to be clear, this is entirely because Republicans are convinced that "racist", "homophobe", "bigot", "fascist" etc are just insults without any actual meaning besides being used to hurt their feelings.
They do not and never will believe that these words can be value-neutral descriptors of actual beliefs and phenomena. Yes, all these things are morally bad, but "morally bad" isn't what the words themselves mean. They are words that tell you why a thing is bad. It is bad BECAUSE it is prejudiced based on race, sexuality, nationality, ethnicity etc. They can't accept that, because that centres the injured party instead of making the bigot the victim.