A Florida Republican introduced a bill that would make it easier for religious people to sue those who call them out as homophobic or transphobic, a bill built on a suggestion from Gov. Ron DeSantis (R).
State Rep. Alex Andrade (R) filed H.B. 991 on Tuesday. The bill would make it easier to sue journalists, publications, or social media users for defamation if they accuse someone of racism, sexism, homophobia, or transphobia. The bill specifically says that publications can’t use truth as a defense when it comes to reporting on people’s anti-LGBTQ+ sentiments by citing the person’s “constitutionally protected religious expression or beliefs” or “a plaintiff’s scientific beliefs.”
And the bill isn’t limited to professional journalists in scope – it affects anyone in public, including people on social media.
Transgender Harvard Law School’s Cyberlaw Clinic instructor Alejandra Caraballo called the bill “absolutely chilling.”
“If someone calls you a fa***t or tra**y and you say they discriminated against you, they can now sue you for at least $35k and cite their religious beliefs,” she noted on Twitter. “This would apply to the internet as well. This would empower bigots to target the LGBTQ community with impunity.”
“This applies to the internet as well so if the person is in Florida, you could be liable even if you have never stepped foot in Florida.”
Others noted that the bill violates federal free speech protections and would be struck down if passed.
“If it’s not struck down, my wife and I are moving to Portugal,” First Amendment lawyer Barry Chase told the Tampa Bay Times to illustrate how confident he is that the attack on free speech won’t be upheld in court.
The bill makes several changes to how defamation lawsuits work to make it easier for someone to win a lawsuit if they are accused of discriminatory statements or actions. Under current law, someone suing for defamation has to prove that the defamation hurt their reputation, but H.B. 991 would make it so that statements “that the plaintiff has discriminated against another person or group because of their race, sex, sexual orientation, or gender identity constitutes defamation per se.”
That is, if someone calls DeSantis transphobic for, say, holding a ceremony at a Christian school on the first day of Pride Month to sign a bill banning transgender girls and women from participating in school sports, he wouldn’t have to show that the accusation hurt his reputation anymore in order to win his suit. Being accused of transphobia would be considered damaging in and of itself.
In other words, it’s the legal version of conservatives’ belief that accusing someone of racism is worse than being racist.
Moreover, the bill would lower the “actual malice” standard when it comes to reporting about public figures. Currently, public figures suing for defamation can’t just prove that statements made about them are false. They have to prove that a news organization acted with a “reckless disregard” for the truth as well, which is hard to prove. The rule doesn’t apply to private figures who sue for defamation.
The bill would limit who counts as a public figure to only applying “when the allegation does not relate to the reason for his or her public status.”
H.B. 991 would make it so that the plaintiff in a case automatically wins attorney’s fees if they win their trial, no matter how little money they’re awarded by a jury. This is to encourage more lawsuits to be filed.
The bill also says that statements from an anonymous source must be presumed false when it comes to defamation cases, making it harder for media outlets to publish statements from whistleblowers.
Last, the bill says that a plaintiff’s religious or “scientific” beliefs can’t be used to prove that they’re anti-LGBTQ+. Normally, the truth is the best defense against defamation; if a journalist can prove that what they wrote is true, then it doesn’t matter how damaging it is to someone’s reputation.
The law would change that when it comes to anti-LGBTQ+ statements. If a magazine reports that, for example, Pastor Jonathan Shelley is anti-LGBTQ+ because he said he would be supportive “if someone walks into a homo bar and shoots ’em all, shoots a bunch of homos and kills all of them,” Shelley could sue the magazine. The magazine could be blocked from citing his statements as proof of anti-LGBTQ+ sentiment because they’re a part of his “constitutionally protected religious expression or beliefs.”
“Journalists are seeing this as something that only applies to them, but this applies across the board,” Andrade – the bill’s author – said earlier this week, explaining that it applies to social media users as well.
When asked for a comment on the bill, DeSantis’s office pointed to a February 7 roundtable discussion he participated in where defamation lawyers complained about how hard it is to bring defamation lawsuits.
“A guy like me who’s an elected official, I have an ability to press my case,” he responded. “Some of these other citizens just simply do not.”
DeSantis has long had a combative relationship with the press, with his press secretary even attacking an LGBTQ Nation journalist on Twitter for asking her to explain statements her boss made. Earlier today, his office announced that he will be “boycotting” MSNBC and NBC because Andrea Mitchell commented on DeSantis’s attacks on teaching Black history in schools.
Donald Trump is another major Republican who supports making it easier for people to sue if they don’t like what is said about them in the media. When running for president in 2016, he said that he would “open up our libel laws” to make it easier to sue.