S.C. media and First Amendment advocates must remain vigilant as new 'hurricane' brews in Florida
Published March 2023
In 2022, Hurricane Ian barreled across Florida, causing widespread damage and becoming the deadliest hurricane to strike Florida since 1935. Ian then traveled into the Atlantic Ocean before making a second landfall near Georgetown, South Carolina, then dissipated upon moving inland.
Now, there’s a new hurricane brewing in Florida, but instead of threatening buildings, infrastructure and lives it is taking aim at well-established and cherished principles of First Amendment law. And, like Ian, this storm may have effects outside of Florida, including in South Carolina.
The primary backer of this storm is Florida Governor Ron DeSantis, who has pressed most of these changes in his crusades against “woke-ism” and “the corporate media.”
The First Amendment limitations that DeSantis and his allies in the Florida Legislature have implemented or proposed include the following:
- DeSantis has signed three laws, including the “Anti-WOKE Act,” which seek to limit public schools in Florida at all levels—including both K-12 and colleges and universities—as well as private and public employers from teaching or training about race and diversity in certain ways. The laws specifically target lessons and training that discusses privilege or oppression based on race, or whether someone “bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress” due to U.S. racial history. In schools, the new laws initially led to removal of some books from school library and classroom shelves while they were reviewed, although DeSantis denied that the laws were leading to widespread “book bans.” In November 2022, a federal judge enjoined the provisions applicable to colleges and universities, saying the law was “positively dystopian.” On March 16th the 11th Circuit Court of Appeals rejected the state of Florida’s emergency appeal of this ruling.
- DeSantis also signed a new law changing the composition of the 50-year-old authority that governs and provides municipal services for Walt Disney World, in retaliation for the Walt Disney Company’s public statements opposing a new Florida statute limiting teaching and discussion of sex and sexuality in schools. Opponents of the statute have labeled it as the “don’t say gay” law. But regardless of the subject and appropriateness of the statute, the changes to the authority were clearly in retaliation of the company exercising its First Amendment right to oppose the statute. This itself is a violation of the First Amendment, with the U.S. Supreme Court holding that “(o)fficial reprisal for protected speech ‘offends the Constitution (because) it threatens to inhibit exercise of the protected right.’”
- In early February, DeSantis hosted a “roundtable to discuss the damaging impacts of defamation from the legacy media …” which featured plaintiffs and plaintiffs’ lawyers in some high-profile defamation cases. One of the targets of the roundtable was the “actual malice” standard applicable to defamation cases brought by public officials and public figures, which emerged from the Supreme Court’s landmark 1964 New York Times v. Sullivan decision and the cases that followed it. “The actual malice standard is an invention of the Supreme Court,” one of the roundtable participants said. “inconsistent with the way the Founders thought about libel and freedom of speech.”
- A Florida state representative described as a “legislative ally” of DeSantis has introduced a bill which would enact the sentiments expressed at the roundtable by eviscerating the “actual malice” rule and many other protections for speech by the public and the press. The bill would limit who can be classified as a “public figure” in a libel case, exempting unelected and appointed government officials and also individuals who find themselves in the midst of public controversies. For plaintiffs still subject to the “actual malice” standard, the bill would change the law to presume that statements that are “inherently implausible” or based on unverified statements by anonymous sources are made with “actual malice.” Also, an allegation that someone “discriminated against another person or group because of their race, sex, sexual orientation or gender identity,” would be defamation per se, meaning the only issue would be whether the defendant actually made the statement. If that is proven, the court would have to award statutory damages of $35,000. This bill would severely cut back the application of New York Times v. Sullivan and imperil the journalism about matters of public interest that Sullivan has protected. As I have written previously, reversing or curtailing the Sullivan rule has gained some support in recent years. The bill passed a committee of the Florida House on March 14.
- Another bill—which DeSantis said he opposes—would require paid bloggers who write about certain elected officials–the governor, the lieutenant governor, a cabinet officer or a state lawmaker—to register with the state and file monthly reports of the sources and amounts of payments for such blog posts. The bill would also impose a daily $25 fee for filing late, up to $2,500. Websites of newspapers “or any similar publication” would be exempt. Besides the unconstitutional vagueness of the terms of this provision—who’s a paid blogger?— this would amount to an unconstitutional licensing requirement for speech. It is also reminiscent of the British licensing of the press in the colonial era, and of the short-lived 1798 Sedition Act, which criminalized disparagement of Federalist Party U.S. government officials. In Sullivan, the U.S. Supreme Court stated that “(a)lthough the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.”
Will any of these First Amendment storms travel to South Carolina? So far, there has been little impact here. One bill that was pre-filed in the Legislature this session would bar public school districts, public schools and public institutions of higher learning from “direct(ing) or otherwise compel(ing) students to personally affirm, adopt, or adhere to the tenets of critical race theory” or “introduce(ing) a course of instruction or unit of study directing or otherwise compelling students to personally affirm, adopt, or adhere to any of the tenets of critical race (theory).” Last year, I wrote about a South Carolina bill that would have criminalized providing information about the legal availability of abortion in other states, arguably including news coverage of the issue.
But it’s important to recognize the larger agenda here. DeSantis is a Harvard-educated lawyer. He and his allies are likely pushing these statutes with the expectation and hope that they will be challenged in the courts. There they hope that conservative judges, including the emerging majority on the U.S. Supreme Court will perhaps upload these statutes. Doing so would likely involve overturning, or at least severely limiting, Sullivan and several other cases, as well as the precedents that have been built on these cases over the past 49 years. In its ruling overruling Roe v. Wade, a majority of this Supreme Court has shown that even long-standing precedent is not sacrosanct.
Here in South Carolina, the media and First Amendment advocates must remain vigilant and be on the lookout for bills introduced in the legislature that could threaten our valuable and hard-won freedoms of speech and the press. The winds against freedom of speech are certainly blowing in Florida, and we have to make sure that the gales do not travel north into our state.
Eric P. Robinson focuses on media and internet law as associate professor at the USC School of Journalism and Mass Communication and in an “of counsel” position at Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 25 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.