Right-Wing Media Splits From DeSantis on Press Protections

Gov. Ron DeSantis has long courted right-wing news outlets, while dismissing mainstream reporters as biased and untrustworthy. But legislation that would sharply curb press freedom in Florida is creating a rare rift between the governor and the media that have helped propel his rise.

The legislation, drafted at Mr. DeSantis’s urging as he inches toward a presidential bid, takes aim at several protections in state and federal law, including the decades-old Supreme Court precedent that makes it difficult for public figures to win libel lawsuits. The proposals are packaged in two bills moving through the Republican-controlled Legislature.

While public opposition has largely come from left-leaning and nonpartisan free-speech groups, forces traditionally aligned with Mr. DeSantis have in recent weeks begun raising alarm. They are warning that the governor and his G.O.P. allies did not take into account how the bills would affect right-wing reporters and commentators, not just the mainstream outlets that have become punching bags for Republican politicians.

“The sword cuts both ways,” Trey Radel, a radio talk show host and former Republican congressman, said late last month as he railed against the legislation on his evening drive-time show.

Mr. Radel argued that the two proposed bills could prompt a torrent of costly libel suits against conservative websites and talk and news stations such as the one that broadcasts his program, a Fox News affiliate in Fort Myers. Such litigation could put stations like his out of business, he added, “and here is who’s going to pay the biggest price politically: Ron DeSantis.”

The legislation being considered in Tallahassee seeks to challenge the longstanding Supreme Court precedent known as New York Times v. Sullivan — which protects publishers of all sorts from defamation suits unless an error is found to be willful or the result of negligence. The legislation would also eliminate several protections for journalists in Florida, narrow the definition of a public figure, and establish the presumption that any statement from an anonymous source, including whistle-blowers, is automatically deemed false.

Throughout his political career, Mr. DeSantis has relied heavily on conservative media, slipping well-timed scoops to outlets such as Breitbart News and The Epoch Times and frequently appearing on prime-time shows on Fox News. He has cast mainstream reporters as hostile and suggested the news media has abused its protection afforded in the First Amendment.

“At the end of the day it’s our view in Florida that we want to be standing up for the little guy against some of these massive media conglomerates.” Mr. DeSantis said during a round-table event on defamation he hosted in February.

Marc Randazza, a First Amendment lawyer who has represented numerous right-wing outlets in libel suits, notes that the legislation would most likely have a chilling effect on the press. News outlets may think twice before covering difficult topics or criticizing public figures if an unintentional error could end in a costly judgment; it could also drive up insurance rates, forcing some companies to shutter.

Gov. Ron DeSantis and His Administration

The Republican governor of Florida has turned the swing state into a right-wing laboratory by leaning into cultural battles.

Mr. Randazza, whose firm has represented Alex Jones, the broadcaster who faces more than $1.4 billion in legal damages for defaming the families of the Sandy Hook shooting victims, said he was urging his clients to write letters to Mr. DeSantis and the bills’ sponsors asking them to drop the legislation.

“I’m not an anti-DeSantis guy. He’s my top pick for president right now, but this legislation is moving in exactly the wrong way,” said Mr. Randazza.

“When you fashion a weapon you think can hurt your enemies, you shouldn’t be surprised when it hurts you, too,” he said.

A spokesman for Mr. DeSantis, Jeremy Redfern, did not respond to questions about the rising pushback from the right. Mr. Redfern said only that it was “encouraging to see the Legislature taking up the important topic of media accountability and joining the conversation that the governor began earlier this year.”

Representative Alex Andrade said he sponsored the House bill to “bring back some reasonableness in the relationship” between the press and the public.

The primary impetus for the legislation, he said, was to target the Sullivan standard. The sponsor of the companion bill in the Senate, Jason Brodeur, did not respond to a request for comment.

A wide range of voices have chimed in. On March 23, Representative Cory Mills, a freshman Republican from Florida, sent a letter to the leaders of both houses of Florida’s Legislature calling the proposals “unpatriotic” and warning that the bills would “stifle all media voices — whether liberal, conservative or neutral — that your constituents have come to trust and rely on.”

William P. Barr, the former attorney general under President Trump, wrote an op-ed in The Wall Street Journal last weekend attacking attempts to curtail press freedoms. “There are precious few conservative news outlets as it is,” he wrote, without making specific reference to the Florida legislation. “Why make them more vulnerable to the multitude of left-wing plaintiffs’ lawyers?”

Last month, James Schwartzel, president of Sun Broadcasting, which owns the Fox affiliate where Mr. Radel’s show airs, sent an email to eight members of the Florida House, Senators Marco Rubio and Rick Scott, and Mr. DeSantis’s communications director, calling for the officials to “KILL” the House version of the bill.

“The bill creates too much liability for our business to continue. We will change our conservative programming, and announcers will quit,” Mr. Schwartzel wrote.

On Saturday, The Gateway Pundit, a far right news site, published an editorial opposing the House bill, stating that if it “is passed, there is no doubt that conservative media outlets will suffer.” Even the founder of Florida’s Voice, one of Mr. DeSantis’s most reliably friendly outlets, has come out against the legislation, tweeting last month that it would allow the left to “weaponize this law against their enemies.”

National media outlets have not spoken out publicly.

Newsmax, a right-wing network, did not respond to a request for comment, nor did Salem Media Group, which produces conservative radio shows and podcasts.

Asked for comment, Fox News — which has argued for protection under the Sullivan precedent in its defamation suit filed by Dominion Voting Systems — pointed to a speech by Lachlan Murdoch in Australia a year ago. “We must always be wary of the suppression of information,” said Mr. Murdoch, the Fox Corp chief executive. “The contemporary thrill to ‘cancel’ someone whose opinion you do not share is just the latest insidious form of censorship.”

Concerns about the legislation aren’t limited to the press. Provisions in the bills would increase payouts to plaintiffs, while making it more costly for defendants to fight litigation. They would also allow defamation suits to be brought virtually anywhere in Florida, allowing for forum-shopping to increase plaintiffs’ chances of winning.

Those measures seem particularly tailored to encourage suits against ordinary people, rather than media outlets, who can also be hit by defamation suits but are far less likely to carry insurance coverage to protect them or to be able to afford the costs of litigation. The legislation, critics say, would lower the bar for a restaurant to sue a customer for a negative Yelp review, for example, or the president of a homeowners’ association to bring a case against a resident for posting a complaint on Facebook.

Americans for Prosperity, the influential libertarian-leaning group funded by Charles Koch, has come out against the legislation, arguing that it would open all Americans to “frivolous lawsuits targeting their speech.”

And Joe Cohn, legislative and policy director at the Foundation for Individual Rights in Education, which also receives Koch funding, said he believed the legislation was drafted with an eye on settling scores — real or imaginary — with news outlets that have been critical of Mr. DeSantis and other Florida Republicans.

“There’s a starting point of animosity with the press and they are trying to use legislative power to take back territory they think they’ve lost,” Mr. Cohn said. “But they haven’t fully thought through the consequences.”

At two recent hearings in Tallahassee, no member of the public testified in support of the bills, with dozens of people appearing to oppose it. Nonetheless, the bill’s Republican supporters show little sign of wavering.

Mr. DeSantis hasn’t publicly endorsed the legislation. Still, his fingerprints are evident. In the February round-table talk on defamation, he discussed many of the measures that ended up in the bills and said the changes “would contribute to an increase in ethics in the media.”

And in January 2022, the governor’s office circulated proposed draft legislation similar to the bills filed this year.

That legislation was intended “to invite challenges” to existing Supreme Court precedent, according to an attached briefing note first reported on in The Orlando Sentinel.

Rachel Fugate, a First Amendment lawyer in Tampa, said some opponents to the bill are likely holding their fire, hoping that the legislation won’t pass or, if it does, it will be tossed out by the courts. Conservatives in the state have been loath to directly take on the governor.

“If they challenge the bills they’re going to have to take on DeSantis,” Ms. Fugate said.

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