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Will Florida Become a ‘Libel Tourism Destination’ — and Bury Conservative Media? – HotAir

Florida Republicans want to change defamation laws in the state to hold mainstream-media outlets more accountable for fake news. They might instead write a death warrant for smaller alternative media platforms, especially conservative media, while turning Florida into a “libel tourism destination,” one radio host warns.

The axiom Be careful what you wish for applies here, it seems:

Republican state Rep. Alex Andrade of Pensacola has sponsored a bill that will make it easier for Floridians to sue journalists and news organizations for defamation, something that is historically difficult to prove in court. 

Trey Radel, political consultant and host at a Fox News Radio affiliate in Florida, has been an outspoken critic of the legislation (HB 757), insisting that since the premise of the bill is to “make it easier to sue the media,” it will cut both ways. 

“While certain Republicans may think that they’re going to be suing and taking on The New York Times and The Washington Post, here’s the breaking news: liberal trial lawyers are going to have a field day with center-right media in the state of Florida,” Radel told Fox News Digital in an interview. 

“Signing this into law will destroy conservative media in this state.”

This bill has percolated in the legislature for at least a year or more in various forms. An earlier effort failed in a previous session, but HB 757 now appears headed for a vote. The Tallahassee Democrat (the state capital’s main newspaper) reported on its progress a month ago, along with its critics’ complaints. Andrade defended it at that time by arguing that the media has failed to ‘regulate’ itself and has become nearly unaccountable for the spread of false claims and defamation:

“Media is not engaging in sufficient self-regulation,” he told the committee Thursday. “By expecting people to act in good faith, they’re allowed to get it wrong, but what they’re not allowed to do is act so recklessly that they publish something that could harm someone’s reputation without doing bare-minimum due diligence.”

Well … no argument there. We write constantly on how badly the media bungles its job, and how their use of “anonymice” to further their preferred narratives is not just irresponsible but deliberately manipulative. They do their damage and then use the Sullivan standard to dodge accountability later. (As an aside: one of the best films to criticize that is 1981’s Absence of Malice — a must watch.) To the extent that gets curtailed effectively, so much the better. Right?

Er … maybe not. Critics of the bill make some good points as well. First off, Andrade tries to dismantle Sullivan by proclaiming the use of anonymous sources for erroneous reporting to be a prima facie demonstration of “actual malice.” As one attorney told Fox News, the bill would stand “actual malice” on its head by making it a base presumption and forcing respondents (defendants) to prove against it, and it’s highly unlikely that the Supreme Court would agree to that. Clarence Thomas has written on multiple occasions about the need to eliminate the Sullivan standard, not to shift its evidentiary burden to the media outlets being sued.  

Redefining Sullivan in state law won’t fly in federal court, where the Supreme Court precedent isn’t subordinate to state statutes. And if Florida becomes a “libel tourism destination,” federal courts will almost certainly take jurisdiction when involving out-of-state media orgs like the NYT and Washington Post, which makes this law mostly a tool to go after Florida media outlets only. In the meantime, though, it would create a massive headache for anyone in online reporting and commentary, possibly down to the local Facebook mom:

Block said he thinks Florida would become the country’s “libel tourism destination.” And not just against journalists, as the bill applies to anyone accused of publishing defamatory statements.

“(The bill would open) up a floodgate of frivolous lawsuits against writers, broadcasters, comedians, mom-and-pop Facebookers who may or may not have erred in reporting or criticizing the actions of elected officials and wealthy public figures,” he said.

The tourism criticism also applies in-state, too. The bill would allow plaintiffs to forum-shop in any county where the material was published. For online media, that means every county, and that could be a real problem for conservative media in places like Miami-Dade, Broward, and so on.  

The process envisioned by Andrade has more issues:

Florida-based media attorney James Lake similarly had several objections to the legislation in addition to the ones Radel listed. Lake pointed to a clause that would require a “veracity hearing” where a lawsuit would be rushed within 60 days when a judge, not a jury, makes a ruling, telling Fox News Digital, “This would violate the right to a jury and deny sufficient time to investigate a complex case.” 

Section 2 of the bill, Lake says, would “help criminal defendants go after truthful speech.”

Another provision would force media outlets to delete all of its reporting on criminal defendants who later get acquitted by a jury. Imagine having to delete — not update, not correct, but delete — all of the reporting and commentary on, say, OJ Simpson. Or how about Donald Trump if/when he gets acquitted by juries? 

Speaking of which, Radel warns Republicans that they may think they’re going after the media, but all they’re doing is building new methods of lawfare against themselves. Radel points to Trump’s legal fights and wonders why Republicans want to make it easier to sue:

“I believe that Republicans are acting like liberals in the way that they are legislating out of emotion. They’re not thinking. They’re reacting,” Radel told Fox News Digital. “And I get it. I sympathize with it. They’re angry with the media. But this will open the door for liberals and liberal trial lawyers to engage in lawfare just like they are with Donald Trump. They don’t even care about winning. They care about burying the voices. They care about censoring conservative voices. They care and want to shut down conservative media. And the Republicans are creating a law that would make it easier for them to do so.”

That’s a very good point, but it’s not the last word. Andrade may have a good rebuttal to make in support of his bill, and if so, I’d love to hear it. Right now, though, the mainstream media is already paying the price for its false reporting and “narrative journalism.” There’s no need to make alternative media pay the price for it as an act of self-immolation. 

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