In late February 2023, claims about a bill in the Florida state Legislature that would impact defamation law began to spread on platforms like Reddit and Twitter.
For instance, a viral TikTok claimed the proposal would make it "illegal to call someone racist, transphobic or homophobic" whether you're online or face-to-face with someone.
Florida is making it illegal to call someone racist, transphobic or homophobic. Because, Florida.
Let's just say that somebody does something inherently racist or homophobic towards you, and you have the actual video evidence of it occurring. Even if you have evidence and it is a fact that they are homophobic or are racist, it does not matter. This person can then countersue you for a minimum of $35,000 in damages.
[...] This bill also applies to the Internet, so if somebody is a resident of Florida and somebody online calls them transphobic, they can then sue you because they live in Florida.
This bill is also going to limit the ability of journalists to use anonymous sources. [...]
While it is true that the bill would change legal standards for anonymous sources in news stories, it would not make it illegal to call someone racist, homophobic, or transphobic.
Instead, it could increase the risk of liability for defendants in defamation cases that involve race, sex, sexual orientation, or gender identity. Under the bill, the amount of damages awarded to plaintiffs would increase.
The language in the bill was broad. Legal experts anticipate it facing court challenges if, or when, it becomes law.
On Feb. 28, the bill, which was introduced by Republican Rep. Alex Andrade, was referred to the House Civil Justice Subcommittee. The previous day, a Senate version was introduced by Republican Sen. Jason Brodeur. Bryan Griffin, a spokesperson for Florida Gov. Ron DeSantis, told the Tallahassee Democrat the governor would make a decision on the bill "if and when it passes and is delivered to the governor's office."
When we reached out to the person who made the TikTok video about our findings, he wrote in a direct message that he's not a journalist and is "glad that there are people with the time and resources to set the record straight," apparently referencing Snopes. He wrote he is Canadian and primarily researches things
What Would the Bill Actually Do?
In court, statements found to be purely opinion are not considered statement of fact. "Defamation" is when you make a false statement of fact about another person that is capable of hurting the person's reputation, Aaron Caplan, a professor of law at Loyola Law School, explained.
In general, there are two ways to prove a statement can harm someone's reputation: "defamation per quod" and "defamation per se." The "defamation per quod" method requires proof that the specific statement actually harmed them.
The other method, "defamation per se,'' does not require individualized proof of reputational injury. The plaintiff just has to prove the statement was made and that it was false. That's the type of defamation central to the viral TikTok claim.
This is the part of the bill that the video highlights:
(2) An allegation that the plaintiff has discriminated against another person or group because of their race, sex, sexual orientation, or gender identity constitutes defamation per se.
(a) A defendant cannot prove the truth of an allegation of discrimination with respect to sexual orientation or gender identity by citing a plaintiff's constitutionally protected religious expression or beliefs.
(b) A defendant cannot prove the truth of an allegation of discrimination with respect to sexual orientation or gender identity by citing a plaintiff's scientific beliefs.
(c) A prevailing plaintiff for allegations under this subsection is, in addition to all other damages, entitled to statutory damages of at least $35,000
Under the bill, a new "defamation per se" category would rest on the defendant falsely stating someone had supposedly discriminated against them because of their race, sex, sexual orientation, or gender identity. There would need to be proof of discriminatory actions, like someone losing their job, for example, rather than proof of discriminatory beliefs — especially based on religion or science.
Andrade, who has been a member of the state House since 2018, said the bill aims to get rid of vagueness and provide "clarity to a privately held cause of action in Florida" regarding defamation law.
Responding to the video's claim that the bill would outlaw calling someone racist, homophobic, or transphobic, he said, "If all you're doing is calling someone a name, you're not defaming them. You're just acting like a child."
Andarde said the bill would change legal standards for defamation cases across the board, regardless of profession or what method the allegedly defamatory claim is published.
The bill would also change who is considered a public figure in defamation cases, making it easier, in general, to sue for defamation. Exceptions to who is considered a public figure would apply if a person is "defending him or herself publicly against accusations," for example.
Even with proof, it can be difficult for a jury to decide how much money should be attached to defamation suits.
Caplan said the bill would seemingly allow a person falsely accused of discrimination to recover damages they would get under existing law, plus a new statutory penalty of "at least $35,000." The bill does not specify the maximum amount of damages they can recover. The bill also states any plaintiff who wins must be awarded attorney fees.
The last part of the TikTok video mentions a part of the proposed bill that would change existing law so that, in defamation cases, statements from anonymous sources would be considered false —a change that could impact journalists, in particular.
However, Andrade said if journalists can prove such statements are true, they wouldn't be affected by the change. He described that part of the bill as "Journalism 101," saying journalists wouldn't be at risk so as long as they could verify the claims of anonymous sources in question.
He is also sponsoring a higher education bill that would impact tenure and diversity, equity and inclusion funding at Florida universities — a proposal that has been condemned by national organizations, such as the American Association of University Presidents.
What Do Legal Scholars Think About the Bill?
We spoke to several legal experts who said the language in the bill is broad and would be challenged in court should the Legislature and DeSantis approve it.
Lyrissa Lidsky, a constitutional law professor at the University of Florida, said the legislation makes assumptions about who, or what, is typically at the center of defamation cases. "It envisions that people are routinely being accused of discrimination based on their religious beliefs," Lidsky said, "[or] what it calls their scientific beliefs."
She said the bill may be portrayed as "anti-mainstream media," or a proposal to namely affect journalists. But "ordinary citizens might be suing for defamation, and ordinary citizens might be sued for defamation," and they would be affected by the proposed change. "We all have an interest in finding the proper balance between reputation and free expression."
Lidsky said the bill seemed to go below the minimum level of protection of speech set by the Supreme Court.
"There's inevitably going to be slippage with people who, in the rough and tumble of public debate, are called a name they don't like," she said. "And, then, if they have enough wealth to weaponize defamation, [the proposed law changes] can be used as a potent tool to silence their critics, regardless of whether they could ever win that defamation claim or not."