The Florida state government is on the verge of passing a law that attempts to modify libel laws to the benefit of conservatives but risks a monumental and devastating backfire.

Former Trump speechwriter Stephen Miller has sounded the alarm most forcefully.

Miller:

Read below. Florida is on the verge of passing a new law to dramatically lower the legal standard for defamation. This, after leftist judges and juries have been imposing one insane vengeful verdict after another against innocent conservatives. At the moment, there is no parallel ecosystem on the right. There is no Florida equivalent on the right of a NYC jury on the left. A jury of conservatives will bend over backwards to reach a “fair” conclusion.

If Florida passes the proposed law to lower the standard for defamation expect leftist’ plaintiffs lawyers to spend the next generation bankrupting every prominent conservative based in Florida.

If you want to go after corporate media then pass a law narrowly tailored at them. This law will mean conservative influencers, podcasters and alternative media companies based in Florida are going to get WRECKED solely because they are conservative. And I mean WRECKED.

Reject this law before it’s too late.

 

So what is in this bill exactly? In a nutshell, this bill, pushed forward by conservative state senator Brodeur, would make it much easier for a plaintiff to sue a defendant for libel and defamation. Ordinarily, there is a higher standard of “malice” that must be proven for defamation cases involving public figures.

This bill would narrow the definition of public figure in such a way as to make it easier in most cases to win a defamation claim. Unelected public officials, those defending themselves against accusations, and a variety of other individuals would no longer have to prove “actual malice” in defamation claims. Actual malice is the standard set for defamation claims involving public figures in the landmark Supreme Court case New York Times v. Sullivan, which stipulates that such figures must prove the defendant not only said something false but acted with “knowing or reckless disregard” for the falsity of the claims.

Perhaps the most salient aspect of the bill is that it would classify allegations of discrimination against a person or group because of their “race, sex, sexual orientation, or gender identity” as defamatory per se. Defamatory per se is a special category of speech for which one doesn’t have to prove damages to win a defamation suit; the nature of the accusatory speech is so inherently bad that it is considered defamatory by default. In theory, then, this new bill would afford considerably more protection to conservatives who are smeared as “racists, sexists, homophobes,” etc.

Including accusations of racism, sexism, and so forth as defamatory per se does make sense. After all, it is currently considered defamatory per se to accuse a woman of having a venereal disease or having loose sexual morals. As the common law surrounding defamation law was developed far in the past, a woman’s sexual virtue was far more valuable to society—today women proudly march in “slut walks.” The point here is that being accused of racism in this day and age is far more damaging to one’s reputation than for a woman to be accused of having a venereal disease. It makes sense then that the kinds of accusations that generate the most severe sort of repetitional harm should be included in the special category of defamatory per se.

Imagine you’re the typical American mid-career professional, a doctor, lawyer, or college professor—if you already are one, no need to imagine. What do you fear more? Being falsely accused of having monkeypox or of being a “racist”? Would it be worse to appear on your local newspaper’s front page under a headline suggesting you embezzled money or one suggesting you are a white nationalist? The answer, we suspect, is obvious.

In fact, we at Revolver News suggested that this specific fix could help immeasurably in the fight against a hostile and vindictive mainstream press.

Revolver:

Want to strike a blow against cancel culture and the power of the media? Then don’t simply complain, do something: Make it legally risky to throw around the allegations that are a canceller’s bread and butter. Expand defamation law, and make clear that bogus accusations of being a “racist” or “white nationalist” are factual smears and defamatory per se.

American common law recognizes two different breeds of defamation: “Defamation per quod” and “defamation per se.” In “defamation per quod,” a false statement is not inherently damaging, and a person must demonstrate specific and concrete harms its publication caused. For instance, UVA dean Nicole Eramo’s lawsuit against Rolling Stone for portraying her as indifferent to a gang rape (which never actually happened) was a successful defamation per quod claim.

“Defamation per se” denotes statements so inherently damaging that their false utterance is presumed to hurt the target, no matter what – even if he cannot prove economic harm. The damages are simply assumed automatically. When a libel or defamation case involves statements that are defamation per se, it is substantially easier to win a case. But just as importantly, by reducing the pleading hurdles at the outset of a case, defamation per se makes it much easier to hold a defendant’s feet to the fire in discovery — for example, by demanding all Slack or Journolist logs pertaining to the smear.

Traditionally, four types of false allegations have been considered severe enough that they constitute defamation per se:

  • Claiming a person was involved in criminal activity
  • Claiming that a person was unethical or incompetent in their professional conduct
  • Claiming a person has some kind of contagious or loathsome disease.
  • Claiming a woman is unchaste or has otherwise engaged in sexual misconduct (Yes, in an age of slut pride parades, questioning woman’s chastity is defamatory per se. Historically, this tort was only available for women, though many jurisdictions now allow it for men also)

It’s time for this list to expand. Today, there is no false accusation thrown around more freely, and with greater harm, than the claim that a person is a “racist,” “white nationalist,” or “white supremacist.” It’s time that our courts adapted accordingly. America’s courts should adopt the standard that falsely accusing someone of being a racist, or of being a white nationalist, is per se defamation.

So what’s not to like about this bill? Would not the bill be a step in the right direction in being able to combat cancellation attempts by the mainstream press against conservatives? Perhaps so, but this would have to be weighed against the degree to which the vindictive and hostile left would exploit the expanded libel laws to destroy conservative media with their vastly more sophisticated lawfare machinery. Indeed, it is not just the law that matters but the machinery that exists to take advantage of the law, and one of the many power asymmetries between the left and right exists in the form of lawfare capability and infrastructure.

In the past year alone, there have been several major cases of the left using its lawfare machinery to great effect to punish prominent conservatives and chill conservative speech.

Take the Alex Jones defamation case in Sandy Hook. As we pointed out in another major piece, the nearly billion-dollar defamation verdict against Alex Jones had very little to do with Sandy Hook and everything to do with punishing a prominent Trump supporter and silencing speech on more recent and salient issues like election fraud.

Revolver:

Why does the Sandy Hook case matter, according to the Times? Because it could “take the bullhorn” away from those who dispute election results or question the official narrative of January 6, while plundering them for millions in the process.

…

To the Times, this is clearly not a straightforward application of existing defamation law, but a bold attack seeking to vastly expand its scope. The headline is revealing as well: “Lies for Profit: Can Sandy Hook Parents Shut Alex Jones Down?” The goal is not to hold Alex Jones liable for specific harms, but to stop him from speaking at all, permanently. Then, when that is accomplished, they will move on to silencing other dissenting voices, permanently.

The Sandy Hook lawsuit was never about protecting Sandy Hook parents. It was about protecting America’s corrupt ruling class from an alternative media that refuses to mindlessly repeat their lies.

It is not simply that the Sandy Hook lawsuit isn’t ultimately about protecting the grieving parents—it isn’t even about attacking and silencing conspiracy theories per se. It is worth remembering that Alex Jones was not a real target for deplatforming and immiseration prior to the Trump phenomenon, of which Alex Jones was one of the most prominent supporters.

Prior to Jones’ entanglement with Trump and the broader Trump phenomenon, the establishment largely viewed the radio host as an entertaining curiosity—if not entirely harmless than certainly not the enemy of the state that must be destroyed at all costs that the establishment now views him as.

In light of the present escalation of hostilities, it is remarkable to revisit the once-viral CNN interview between Piers Morgan and Alex Jones. For context, the interview took place only weeks after Sandy Hook tragedy and the subject was gun control

[…]

To be sure, the interview was histrionic and by no means “friendly.” What is remarkable, however, besides the fact that CNN gave Jones a platform at all, which they certainly wouldn’t now, is what Jones’ interviewer/antagonist Piers Morgan neglects to say: nowhere does Morgan attack Jones for being a “conspiracy theorist” about Sandy Hook or call for his deplatforming (which would be odd given that CNN gave him a platform). Furthermore, in CNN’s write-up of the viral exchange, it does not attack Jones for Sandy Hook conspiracies or demand his de-platforming. Amazingly, the write up refers to Jones simply as a “radio host”; not “right wing extremist”, not “white supremacist”, and not not radical conspiracy theorist.”

Then, of course, there was Fox’s near-billion-dollar settlement in the Dominion voting machine case. And, most relevant to us, there is Ray Epps, who has retained a prominent Democrat lawyer to intimidate Tucker Carlson, Fox News, and Revolver News, especially with the prospect of defamation suits (so far, he has only sued Fox). While we are not worried in the least and have written a definitive case as to why Ray Epps has no defamation claim, the well-intentioned Florida law could serve as a substantial force amplifier for efforts such as Epps’ to silence and intimidate those challenging sacred regime narratives.

In a nutshell, the inclusion of leftist smears such as “racism” as defamatory per se is enterprising and commendable, but considered in its totality, the net effect of the Florida libel bill is likely to be more harm than good. Stephen Miller is probably right when he points out that there’s no right-wing equivalent in Florida to what New York juries are for the left. The left is more vindictive and has more developed legal infrastructure, and for the time being, at least, is likely to be in a better position to capitalize politically on any expansion in libel laws. We should, of course, not take this sad state of affairs for granted, but allow it to serve as additional motivation to beef up right-wing legal infrastructure with teeth so that one day patriots will be able to fight the left on its own turf on equal footing. Until that day, it is probably better to let this well-intentioned bill rest rather than shoot ourselves in the foot.