Florida Bill Would Make Allegations of Race Discrimination 'Defamation Per Se'

A recently introduced bill in the Florida Senate seeks to remake defamation law, scraping major constitutional protections for disparaging speech. It's extremely similar to another proposed law introduced in the state House in 2023. Both bills seek to widen the legal definition of defamation in Florida in order to punish constitutionally protected speech. 

Introduced last week, Senate Bill 1780 proposes several major changes to Florida defamation law. Like its House counterpart, the bill would significantly narrow the definition of a public figure in defamation suits, excluding non-elected or appointed public employees and individuals who gained notoriety by publicly defending themselves against an accusation, giving an interview, or being the subject of a viral "video, image, or statement uploaded on the Internet." 

Under S.B. 1780, individuals in these circumstances wouldn't have to prove "actual malice," a standard set in the 1964 Supreme Court case New York Times v. Sullivan, when launching defamation suits.

In addition, the bill seeks to widen the circumstances in which fact-finders must infer actual malice in a defamation case, including when the alleged defamatory statement is "based wholly on an unverified anonymous report." It also mandates that any claim made by an anonymous source be assumed false during defamation suit proceedings.

By far the most controversial proposal in the bill is the provision that states allegations of discrimination "against another person or group because of their race, sex, sexual orientation, or gender identity [constitute] defamation per se"—essentially meaning that when these allegations are false, they are automatically defamatory.

But the bill also makes it harder for defendants to prove the truth of their allegations of discrimination on the basis of gender identity or sexual orientation. The bill specifically states that appeals to the allegedly defamed person's religious or scientific beliefs don't count.

In all, this latest bill is merely the latest entry in a long slate of Florida legislation aimed at eroding well-established First Amendment protections. However, Florida Republicans' efforts to change defamation law—just like their attacks on other First Amendment-protected speech—are unlikely to survive a legal challenge if these bills pass. Both this latest Senate bill and its counterpart in the state House blatantly and repeatedly violate constitutional precedent.

If there's any danger in these laws, it's that they may be used as a test case to challenge existing defamation protections.

"There have been some in conservative circles, including Justice Thomas, who have wanted there to be a test case to revisit Times v. Sullivan," Joe Cohn, the legislative and policy director at the Foundation for Individual Rights and Expression, told Reason last February. "And I think there are lawmakers out there that want to provide legislation that contradicts the existing case law as an invitation for courts to send that up the chain. And it's tremendously chilling of speech."