Has the Florida Legislature lost its taste for stretching the Constitution?

House Speaker Paul Renner addresses reporters following the chamber's session on Jan. 24, 2024. Photo by Michael Moline/Florida Phoenix

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Although unable to stop passage of Florida’s new social media ban for teenagers, First Amendment activists are congratulating themselves for blunting other legislation they consider constitutionally dodgy, including an attempted rewrite of defamation law.

Florida’s First Amendment Foundation, in an assessment released following adjournment of the 2024 regular session, also praised the failure of legislation that would have encouraged veterans of the Armed Forces to use “reasonable force” to prevent desecration of the U.S. flag.

Bobby Block: Credit: First Amendment Foundation

“I don’t want to say that I’m gloating,” said Bobby Block, the foundation’s executive director.

“But I am pleased that these unconstitutional bills didn’t pass, and you may have legislators thinking about ways to achieve their goal without harming the Constitution,” he told the Phoenix during a telephone interview.

Block believes the Legislature might be turning the page following a series of regular and special sessions in which it pursued culture-war gains at the expense of free-speech rights.

“I would like to believe there is a growing awareness that it’s not good public policy to pass laws that will be overturned by the courts,” he said.

“Do I believe that we won’t see overtly bad unconstitutional laws proposed in the future? I don’t think we’re there yet. But do I think there may be the beginning of a greater awareness? Yes.”

Defamation

The defamation bill (HB 757) would have established a rebuttable presumption that any news story, social media post, or other publication based on a single, unnamed source constitutes defamation per se. It was the second year in which western Panhandle Republican Alex Andrade attempted what would have been an end-run around New York Times Co. v. Sullivan, the landmark 1964 U.S. Supreme Court ruling setting a high standard for defamation claims.

“If passed, the bill would have had a chilling effect on reporting the actions of public officials. It would have impacted not just major news outlets, but also mom-and-pop bloggers and social media users,” the foundation said in a written statement.

Gov. Ron DeSantis supported last year’s version of Andrade’s bill but remained on the sideline in 2024. But what likely killed the bill was an outpouring of opposition from conservative and religious broadcasters — Salem Radio’s Bill Bunkley, for example, who warned listeners that the Andrade bill and its Senate companion would “open me up personally to baseless, harassing lawsuits by those opposed to my Christian and conservative worldviews.”

Andrade argued legitimate news organizations had little to fear from the law, since most legitimate publishers require more substantiation than a single, unidentified source to publish.

But some voices are less scrupulous — Project Veritas, for example, which has infiltrated progressive and news organizations and released heavily edited videos designed to make them look bad. Then there’s Fox News, which paid Dominion Voting Systems nearly $800 million to settle defamation claims arising from reporting misinformation about the company’s voting machines in the 2020 presidential election.

‘It’s not talk radio anymore’

“Conservative media depend on controversy to draw their audience and would have to change their format to avoid drawing defamation lawsuits under the bill,” Block said. “If you end up changing your format, it’s not talk radio anymore. And therefore, the market share and the audiences won’t follow.”

Block continued:

“A lot of conservative intellectuals, a lot of conservative politicians, a lot of analysts and consultants need these platforms to address their constituents, their base, their people to some degree. This is a direct line for them to talk to like-minded people.

“When the stations started going, ‘Whoa, this is not good for us.’ This is not going to destroy The New York Times but it will destroy syndicated conservative columnists. I think the message started to spread.”

In fact, opposition spanned the political spectrum, coming from the nonpartisan Foundation for Individual Rights and Expression and the conservative Americans for Prosperity, among other organizations.

Additional bills that failed include:

HB 465, which would have denied scholarships, fee waivers, and in-state tuition to any state college or university enrollee on an “F-1 student visa if that student promotes any foreign terrorist organization,” as designated by the U.S. government.

Amid the domestic divide over the Israel-Hamas war, federal law already provides much more dire consequences for real terrorist activity, Block observed. “If it’s not material support for terrorism but it’s an opinion that you might find abhorrent, and that a lot of people find abhorrent, well, that may be so — you just can’t go and penalize it because you don’t like it,” he said.

The bill made it through a single House committee. The Senate version received not a single committee hearing.

Flags

SB 1120 — again, died in committee. It would have barred state and local government agencies from flying flags “that represents a political viewpoint, including, but not limited to, a politically partisan, racial, sexual orientation and gender, or political ideology viewpoint.” But it also said, ‘An active or retired member of the United States Armed Forces or National Guard at any time may use reasonable force to prevent the desecration, destruction, or removal of the United States flag or to replace the United States flag to a position of prominence … .”

Other bills that received no committee consideration (or Senate companions) were HB 1605 and HB 1607, which together would have expanded Marsy’s Law, a state constitutional amendment protecting victims’ rights, to shield the identities of police officers who have meted out deathly force.

Two Tallahassee police officers asserted such claims — that, when shooting suspects they believed were attacking them, they became crime victims. The Florida Supreme Court ruled in November that Marsy’s law confers no absolute right to privacy for any crime victim that outweighs the constitutional right of a defendant to confront his or her accuser.

Also denied any committee votes were HB 599 and its Senate companion, which would have forbidden state and local agencies from disciplining workers for refusing to use a co-worker’s preferred name or pronouns — or for employees and contractors to ask for that courtesy. “It is the policy of the state that a person’s sex is an immutable biological trait and that it is false to ascribe to a person a pronoun that does not correspond to such person’s sex,” the bill asserts.

Social media, etc.

The Foundation welcomed passage of HB 117, which opened grand jury records connected to the initial kid-gloves state criminal investigation of billionaire sex predator Jeffrey Epstein. DeSantis has already signed the bill into law.

“Among the most egregious constitutionally unsound bills that made it through both Houses were HB 3, the revamped bill restricting minors from social media platforms, and HB 85, which created a records exemption that prevents the public from knowing who is behind applications for new state banks and financial institutions,” the foundation said in its written statement.

The social media bill, now in the governor’s hands, bans platforms from allowing use by people under 16 years old, although 14- and 15-year-olds can participate with parental consent. Platforms that don’t use some of the most abusive algorithms and other tools to hook kids and subject them to dangerous material aren’t subject to the restrictions, however.

“Also passed were HB 75 and SB 184, which were meant to protect First Responders from harassment while working but were written so that they could infringe on individual and press freedoms to record and report on responder efforts. We expect some of these to face constitutional challenges in the weeks and months ahead,” the statement continues.

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