Ron DeSantis is targeting the free speech protections that might save Fox News

By Steve Contorno, CNN

As Fox News faces legal peril over its coverage of Donald Trump‘s 2020 election lies, one of its most featured Republicans, Florida Gov. Ron DeSantis, is trying to gut the free speech protections that may ultimately save the network from financial ruin.

DeSantis and his GOP allies in the state legislature have proposed a sweeping overhaul to defamation laws here that would make it far easier to sue news organizations in Florida. The legislation, fashioned to punish media outlets over their coverage of conservatives, would turn the state into a battleground over the future of the First Amendment.

But in doing so, DeSantis has sparked warnings from the right that his attempts to target the mainstream media will result in headaches for conservative outlets as well. Among the most vulnerable, opponents have said, could be the media organizations that have done the most to promote DeSantis amid his ascent in the GOP.

“I understand the emotion behind this bill, but you cannot legislate on emotion and this bill is a sword that will cut both ways,” said Trey Radel, a former Republican colleague of DeSantis in the US House who hosts a weeknight radio show on a Florida Fox News affiliate. “This bill has the potential to stifle, if not shut down, center right media and conservative talk radio.”

The legislation as introduced takes direct aim at the landmark US Supreme Court ruling in New York Times v. Sullivan, which created a higher barrier for public figures to sue for defamation. The decision has been a bedrock of US media law since the case was decided in 1964, protecting news outlets from expensive lawsuits for mistakes made during the course of reporting by requiring plaintiffs to prove the reporter or outlet demonstrated “actual malice” when publishing erroneous information about a public figure.

Fox News has leaned heavily on the ruling in defending itself from Dominion Voting Systems’ $1.6 billion defamation lawsuit. Dominion in its lawsuit has alleged Fox “recklessly disregarded the truth” during its 2020 presidential election coverage by pushing various pro-Trump conspiracies about the company’s voting technology.

Fox attorneys cited New York Times v. Sullivan five times in its March 7 court filing asking for a summary judgment. In public statements, the network has repeatedly insisted it is protected by the precedent set in that case.

“Despite the noise and confusion generated by Dominion and their opportunistic private equity owners, the core of this case remains about freedom of the press and freedom of speech, which are fundamental rights afforded by the Constitution and protected by New York Times v. Sullivan,” Fox News Media said in one such recent statement.

But if Florida Republicans get their way, those protections would be eroded. House Speaker Paul Renner acknowledged last week that the bill his chamber is considering “is designed to challenge current constitutional law” and “tee up a court case.” The push comes as two of the Supreme Court’s more conservative justices, Clarence Thomas and Neil Gorsuch, have openly expressed a willingness to revisit the high court’s ruling in Sullivan, with Thomas calling the court’s libel precedent “policy-driven decisions masquerading as constitutional law.”

DeSantis has for years quietly eyed going after the media’s First Amendment protections, first floating legislation targeting libel laws in December 2021, according to emails obtained by CNN. Stephanie Kopelousos, the governor’s director of legislative affairs, sent draft bill language to the office of the state Senate president, though it was not filed for the 2022 legislative session.

His intentions became public last month at an unusually staged event during which DeSantis, seated behind a studio desk like a news anchor with “TRUTH” emblazoned on a screen behind him, signaled his willingness to turn Florida into a test case to challenge Sullivan.

“It’s our view in Florida that we want to be standing up for the little guy against some of these massive media conglomerates,” DeSantis said.

But that was several weeks before Dominion unleashed a trove of embarrassing text messages and testimony from Fox executives and personalities that suggested they knowingly aired Trump’s false claims about the 2020 election.

Adding to the intrigue is the lengths to which the conservative network and others owned by Rupert Murdoch, have gone to promote DeSantis ahead of his likely bid for president. In between regular appearances on Fox programming, DeSantis in recent weeks has played catch with “Fox & Friends'” Brian Kilmeade, sat down with TalkTV’s Piers Morgan in the governor’s mansion, toured his hometown with the New York Post’s Salena Zito and granted a rare newspaper interview to David Charter of the Times of London — all reporters who work in Murdoch’s media empire. The New York Post declared the Republican governor “DeFUTURE” after his resounding reelection victory in November.

Fox News declined to comment. But the Wall Street Journal, another Murdoch-owned outlet, recently published an op-ed by Trump’s former Attorney General Bill Barr criticizing other media outlets for their “gleeful” coverage of Fox’s “setback” instead of standing up for the protections created by Sullivan. In a plea that seemed aimed at DeSantis’ efforts, Barr urged conservatives with power not to attempt to weaken libel laws.

“For the foreseeable future, we will likely be on the wrong side of the culture-setting consensus,” he wrote. “There are precious few conservative news outlets as it is. Why make them more vulnerable to the multitude of left-wing plaintiffs’ lawyers?”

Republican state Rep. Alex Andrade, the sponsor of the Florida House bill, said he would “take Justice Thomas and Justice Gorsuch over Bill Barr every day of the week.” Andrade contended that libel laws have become so one-sided, “If you’ve been egregiously defamed by a media outlet, in 2023 you have almost no opportunity for actual recourse.”

Andrade said he planned to tweak the bill to address some of the blowback before its next committee stop, but otherwise intended to charge ahead. The bill’s next vote is not yet scheduled.

“The majority of the concerns are not based in reality,” Andrade said.

Under the Florida bill, the definition of a public figure is narrowed significantly and it puts more onus on an individual to verify a defamatory allegation before publishing. Editing video in a misleading way could be considered defamation in this bill. It also allows someone to sue wherever the material is accessed — in today’s digital world, that could be anywhere in the state — which opponents say will lead to “venue shopping” for favorable judges. Courts must assume any statement made by an anonymous source is false, the bill says, which free speech advocates say would have a chilling effect on whistleblowers.

The bill, which was also introduced in the state Senate with some modifications, has attracted an astounding array of opponents that cross the political spectrum. At a House committee hearing last week, the conservative Americans for Prosperity and the more progressive American Civil Liberties Union both testified against it. Brendon Leslie, the founder of the Florida Voice, a DeSantis-friendly conservative media outlet, warned on Twitter that progressive donors would flood conservative media with lawsuits if the bill became law. Bobby Block, executive director of the Florida First Amendment Foundation, called the bill a “blunt instrument” that has made commentary-heavy evangelical and conservative broadcast stations “incredibly nervous.” US Rep. Cory Mills, a Republican from Central Florida, wrote in a letter to state GOP legislative leaders that he was “gravely concerned that (the bills) violate free speech rights.”

Though Sullivan is primarily known for protecting news organizations, the bill could make it easier to sue local bloggers, people who post web comments and other online speakers, opponents have warned.

“It doesn’t just hurt … what’s been referred to as the legacy media,” said Carol LoCicero, a lawyer who has represented The Villages Daily Sun, a newspaper published by the conservative owners of The Villages retirement community. “It hurts people from all points of view. It hurts individuals. Frankly, it will hurt politicians as they’re campaigning for office and making statements about their opponents.”

DeSantis, though, is so far undeterred. He told reporters last week that he didn’t think the bill would “cause much of a difference in terms of free speech.”

“I do think it may cause some people to not want to put out things that are false, that are that are smearing somebody’s reputation,” he said.

Legal experts are skeptical that the bill will be upheld even if it passes. Other Supreme Court justices have so far not shown the same enthusiasm as Thomas and Gorsuch for reviewing its precedent in Sullivan. Dave Heller, deputy director of the Media Law Resource Center, said the proposed legislation is “breathtaking in its hostility toward a free press” and Mark Lerner, an attorney who represented Newsmax in a libel dispute, called the measure “unconstitutional” and said its proponents “who think they’re championing conservative voices may be surprised that it chills them.”

Radel, the former congressman and radio host, said conservative outlets might not survive the legal costs they could face while legal challenges move through the court system.

“That type of scorched earth policy is going to destroy conservative talk in Florida in the meantime,” he said. “I work for a privately owned broadcasting group that will not be able to afford a barrage of lawsuits before we wait for it to go before the Supreme Court.”

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