Florida lawmakers are advancing twin bills through the Florida House and Senate that would make it easier to file defamation lawsuits against the media and creators of “deepfake” impersonations using artificial intelligence (AI).
Actual malice refers to knowingly making a false statement or doing so with a reckless disregard for the truth.
In federal defamation law, actual malice must be proven for a public official or public figure to successfully sue for libel.
Less well-known individuals—those who haven’t thrust themselves into the public sphere—traditionally have had an easier time proving in a U.S. court that they’ve been defamed.
Private citizens typically haven’t had to prove that a journalist acted with actual malice to prove defamation.
The new law could have a chilling effect on journalists who rely on anonymous sources to report on subjects of public concern such as corruption and crime. If journalists or their sources are fearful that their identity would be revealed in legal action, then the information may not get reported, diminishing a news outlet’s ability to serve as a watchdog.
Similar legislation was introduced last year and failed to pass.
When it comes to taking on deepfakes, the new legislation also would establish that those harmed by AI creations that cast them in a false light considered “highly offensive” could sue for defamation. An example of a recent deepfake involved AI-generated sexualized images of Taylor Swift on X, formerly known as Twitter.
What Is Defamation?
The proposed bills define defamation as “libel, slander, invasion of privacy, or any other tort founded upon any single publication, exhibition, or utterance.”Libel is a published false statement that can be proven to damage a person’s reputation. Slander is a false spoken statement that can damage a person’s reputation.
Under the proposed legislation, opinions couldn’t be considered defamatory. But false statements presented as fact would be.
To limit damages, a publisher would need to “permanently” remove in a “timely way” from the internet an article or broadcast deemed defamatory during a trial.
The bills appear to offer a quick way to determine the fundamental merits of a defamation lawsuit by allowing “veracity” hearings before a judge, who could rule out cases that involve opinion.
The bills appear to be a reaction to irresponsible reporting from some media outlets on public figures, especially about conservative newsmakers who have loudly complained about what they’ve called “fake news.”
Former President Donald Trump has been a fierce critic of mainstream media for reporting unsubstantiated allegations against him and others.
After coverage about him by The New York Times and The Washington Post was proven false, President Trump asked the Pulitzer Prize board to rescind prizes awarded to them.
Both had carried erroneous reports about “Russian interference” in the 2016 election and the then-candidate’s involvement with “Russiagate.”
The newspapers had based some reports on a salacious dossier funded by the 2016 presidential campaign of Hillary Clinton, his Democrat opponent.
Christopher Steele, a former British intelligence officer, compiled the information, some of which falsely claimed that candidate Trump was colluding with the Kremlin.
The Pulitzer board refused to take back the prizes.
Why Malice Matters
In the landmark 1964 case New York Times v. Sullivan, the U.S. Supreme Court ruled that to prove libel, a public figure must establish that a false statement was published with actual malice.Critics say the proposed Florida legislation would improperly put the burden of proof on defendant publishers instead of forcing the plaintiff to prove that a statement was false.
HB 757, titled the Defamation, False Light, and Unauthorized Publication of Name or Likeness bill, is sponsored by Republican state Rep. Alex Andrade, who sponsored a similar bill last year. The sister bill, SB 1780, is sponsored by Republican state Sen. Jason Brodeur.
In explaining why the legislation is necessary, Mr. Andrade said during a Jan. 18 Florida House Civil Justice Subcommittee meeting, “Trust in the media is at an all-time low.”
And, he said, “Media is not engaging in self-regulation.”
But not everyone agrees that more legislation is what’s best.
Bobby Block, executive director of the Florida First Amendment Foundation, came out against the bill during the meeting.
The proposed law would go beyond punishing sloppy journalism and could be weaponized against liberal and conservative media alike, he said.
Even plaintiffs with little evidence to support claims that published information was false could harm news organizations by dragging them into court.
“The lawsuit itself would punish those sued because of the exorbitant costs,” Mr. Block said. “It would have a chilling effect on reporting and free speech.”
The politically left-leaning ACLU of Florida also has spoken out against the bills. The group released a statement saying the legislation would undermine Supreme Court precedence and infringe upon the free speech rights of those who criticize public officials.
“Freedom of speech and a free press are the hallmarks of a healthy democracy,” said Kara Gross, the group’s legislative director and senior policy counsel.
However, Florida attorney Jeff Childers called some of the responses to the bills “overheated” and “hysterical.”
Florida lawmakers appear to be at the forefront of an issue that has been debated since 1964—which is how public figures should be treated when it comes to libel.
Politicians are almost uniformly considered fair targets for criticism and news coverage because they’re considered public figures. Whether to consider others—such as bloggers or even actors—as public figures has been part of an ongoing debate in legal circles, Mr. Childers said.
It’s an important distinction. Historically, it has been difficult for public figures to sue media outlets successfully for defamation. The Florida law would make it easier for public figures to sue journalists.
“We do have a general constitutional right to free speech in this country, but one of the limitations is defamation,” Mr. Childers said.
Defamatory speech that can harm a person’s reputation isn’t protected as free speech under the First Amendment of the U.S. Constitution.
Still, journalists owe it to the public to verify information given by anonymous sources before they publish a report, Mr. Childers said. So, in the event of a lawsuit, proving the information is true shouldn’t be burdensome.
“That just gives you a little more work to refute it,” he said. “You should have done that work anyways as a journalist.”
