HB 991 and SB 1316 Spell the End of Free Speech in Florida

*Note On March 6, 2023, SB 1220 , the companion bill to HB 991 was filed in the Florida Senate by Senator Keith Perry, who represents an area near Gainesville where the University of Florida is located. As of that date, no companion bill for SB 1316 has been filed in the Florida House.

HB 991 and SB 1316 are Part of DeSantis’s Bid for… the Spotlight

It’s no secret that Florida’s Governor DeSantis envisions himself in the Oval Office one day, and has no problem trampling anyone who might hinder that path, especially progressives, liberals, and the left in general. He’s already laid waste to everything related to diversity, equity, and inclusion in the state university system; has continued his 2022 assault on the queer community; and set his sights on destroying the public education system. DeSantis’s leadership has been compared to the autocratic rule of Vladimir Putin in Russia.

Recently, in support of the governor’s mission to wreck Florida on his way to Washington, some Florida state legislators have taken things even further.

Their plan is to go after journalists, using two pieces of legislation. Florida HB 991 was filed this week by Alex Andrade from Pensacola, and co-sponsored by Mike Beltran, who represents part of the area around St. Petersburg. In the Florida Senate, SB 1316 was filed by Jason Brodeur , who represents a district just north of Orlando.

HB 991 and SB 1316: What is in these Bills?

Journalists’ ability to protect sources… severely circumscribed

These bills are aimed at muffling any criticism by taking away the rights of journalists, bloggers and others who might say unflattering things about this governor. HB 991 would revoke the privileges afforded to journalists that protect them from disclosing sources of information they may have obtained while doing their job. It also presumes that any statements given by an anonymous source are false statements and if challenged in court, removes the need of the plaintiff to show actual malice in the words of the defendant. 

Journalists’ ability to criticize the government… severely circumscribed

It also declares that certain allegations are per se defamatory–in other words they’re just defamatory on their own, independent of any other factors. SB 1316 is aimed at creating a pay-to-play system for bloggers. Anyone, other than a journalist, who writes online about Florida’s elected leaders (governor, lieutenant governor or member of the state legislature,) as well as cabinet officers, and who receives compensation for it, must register within five days with the state. They must also  file monthly reports anytime they write about Florida officials. Additionally, there is a provision for fines to be levied if they fail to do those things.

A declaration of war on the free press… I wish that were an exaggeration

I suppose we should be glad that the proposed penalties don’t include any jail time, just financial penalties. But given that this is just another step along a slippery slope, I should probably say: don’t include jail time yet. But even if this were not a step on the path to something darker (which it is) this step by itself is an affront to the First Amendment and freedom of the press. This kind of legislation fundamentally opposes one of the most basic freedoms in the US Constitution and one of our greatest safeguards against corrupt or autocratic rule. With or without incarceration on the table, these proposed laws threaten the ability to investigate and share information honestly about what is happening in government. And if we use it wisely, that ability is one of our most important safeguards against the threat of overreach by our government.

What these Two Pieces of Legislation could do is alarming

If Florida 991 passes, will I be able to say any of the things I just said? And if SB 1316 passes, will I (or 2 Rules of Writing,) be subject to registration, and to the same scrutiny as people with larger platforms like Jim Wright of Stonekettle Station, who is based in the Florida panhandle? Would I be able to write about “Don’t Say Gay” or book banning or other terrible things going on here in Florida?

We know that HB 991 pays special attention to targeting LGBTQ+ people because this bill tells us explicitly that truth cannot be used as a defense. That matters when reporting on someone’s anti-LGBTQ+ sentiments by citing someone’s constitutionally protected religious expression or beliefs’ or “a plaintiff’s scientific beliefs.” Just the anonymity of the sources (and if I were a journalistic source in Florida, I’d want to be anonymous, too) is proof of guilt. The bill doesn’t require those beliefs to be grounded in actual science, something we’ve seen again and again. That confusion between reality and science is right in front of us with the ongoing confusion between gender and sex or the explosion of the misuse of the word “groomer” to obscure what’s really involved in the anti-lgbtq+ legislation that’s happening in Florida and all over the country right now.

FB 991 would mean that people would no longer be able to call out transphobia when the governor spreads terrible misinformation about trans affirming health care for teenagers. Or call out the bigots behind the bans on drag performance that are pending in fourteen states.
Could it also mean that you couldn’t talk about the many times throughout history, crossdressing has been a part of theater? 

HB 991: The Empower Bigots Act

There’s a reason people are calling HB 991 the “empower bigots” act. It sets up a system where calling out someone’s bad behavior–their racism, sexism, homophobia, whatever–is worse than actually being/doing one of those things. 

Under HB 991, social media users could also be at risk. I think of my friends who are leading anti censorship crusades here in Florida who post on their own social media accounts about conflicts with Moms-for-Liberty-backed school board members: calling out their homophobia, transphobia and other bad behavior. Under this law, those people could sue my friends for that, and my friends (or any activist, really) would be left essentially defenseless. 

HB 991 is trying to make people who are targeted by bigots (and the journalists who try to call out the bigots) sit down and shut up. When you add the registration requirements imposed on bloggers in SB 1316, all you’re doing is expanding the pool of people whose voices are being cut off.

Free Press

It’s important at any time to have a free press. People need to be able to call their government to account for a variety of things. But it’s especially upsetting, though not especially surprising, that these rights are being cut off when we need them most. If people in power are allowed to continue to behave in bigoted ways, whether that’s homophobic, transphobic, racist, xenophobic, misogynistic, antisemitic or anything else that shows off their hate and fear of others who are different, we need to be able to call them on it. Everyone does. Everyday people, writers and journalists. We all need to be able to speak explicitly about these behaviors. About what they do to us, to our families, and the people we love. To the devastation we see in our communities from the way that mental health issues and poverty are criminalized.

The Experts Weigh In…

The impact that these pieces of legislation could have on free speech is devastating. First amendment scholars and experts have already begun raising alarms. Allejandra Caraballo, an instructor at Harvard’s Cyberlaw Clinic explains HB 991 as the government as expanding liability for defamation the definition of liability so broadly as to remove the current press protections while also implementing the presumption of defamation for using anonymous sources.

She calls it a “…full on fascist takeover of Florida meant to silence the press, silence academics and silence minorities. This is not normal and it should be treated for the extremist fascist project that it is.” Under HB 991, journalists will be forced to either use named sources, which could expose the source to accusations of libel if they suggest that someone is, for example, a homophobe; or make the choice to use anonymous sources, whose words will also be presumed to be false, therefore also exposing journalists to the same charges of libel. 

The Power of these Laws is in their Vagueness

Clay Calvert, a professor emeritus at University of Florida Levin College of Law calls out the vagueness of SB 1316. If the law excludes journalists, newspapers and similar publications, what counts as a newspaper? Who is a journalist? We’re also left wondering if bloggers outside the state of Florida will also have to register. If that’s what the bill’s author intended, it would seem to be in violation of the Interstate Commerce clause of the Constitution which allots to Congress the power to regulate interstate commerce and restricts states from impeding interstate commerce. It was intended as a way to limit state power rather than increase federal power. Information is not the kind of tangible good that the Constitution’s authors probably had in mind but in the twenty-first century, it’s an incredibly valuable commodity, and it’s what bloggers trade in.

The Florida legislature is using every tool it can to create laws that will discourage marginalized people or communities from speaking out.

Empowering Bigots; Silencing the Minorities they Prey Upon

This effort to legally empower bigots appears to be part of a comprehensive attempt at silencing minorities, destroying education and silencing academics and even more frightening, silencing the press. They are taking giant leaps towards creating an environment in the state where criticizing the government may be de jure legal, but is de facto illegal because of the limits placed on free speech and the fear of people to speak up or to say anything that might attract attention.

A Short History of Free Speech

Sixty years ago, the Supreme Court heard the case NY Times v Sullivan, a case which was brought by an elected official from Alabama against the New York Times over mistakes in a full page ad soliciting donations to help defend Dr. Martin Luther King Jr against perjury charges. These mistakes painted L.B. Sullivan, a city commissioner from Montgomery, Alabama in an unflattering light, and so he sued the Times and a group of ministers named in the ad. The case made its way through the court system until it finally landed in the Supreme Court. When ruling on the case, the Supreme Court’s decision set a standard of actual malice to be adhered to: the media had to know that the statement was false or publish it with reckless disregard to the veracity of the statement. 

The Court set future plaintiffs a deliberately high standard–the plaintiff had to prove intent that went beyond simple negligence in order to empower the press to continue to illuminate both the good and the foul things done by politicians and other public figures. HB 991 doesn’t hold plaintiffs to much of a standard at all. When a politician, for example, says homophobic things, supports organizations that promote homophobia and sponsors anti-queer legislation, it’s not a stretch to suggest that person is a homophobe. But under HB 991, a journalist who prints that insinuation could face significant fines.

Free Speech and “Prior Restraint”

SB 1316 is an example of prior restraint on speech, which is prohibited by the First Amendment, according to Near v. Minnesota, 1931. The government cannot put restrictions on speech before that speech happens. There are some limited exceptions to prior restraint for things like national security or preserving fair trials. And prior restraint can include licensing, but only under very strict conditions. There must be a significant reason like public safety for licensing. (Requiring a permit for a parade, for example.) And there must be a system for redress when the government oversteps its boundaries governing prior restraint. 

 More recently we can look at the 1970s, when the government tried to use a court injunction to force the New York Times and later the Washington Post to halt publication of the Pentagon Papers, detailing the lies and failures of the US involvement in Vietnam. Even then, when those newspapers were publishing state military secrets, the court ruled that prior restraint could not muzzle them unless the government could prove that those columns and articles would actively put military servicemen in harm’s way.

HB 991 and SB 1316 are Part of a Rising Tide of Authoritarianism

Furthermore, SB 1316 looks a lot like the “bloggers law” passed in 2014 by Vladimir Putin. Any blog with more than 3000 readers was required to register with Russia’s media oversight agency, the Roskomnadzor. Bloggers not only have to fact check all of their stories but they must remove any inaccurate comments. They’re prohibited from “harming the reputation” of people or groups, and with registration, they also lose one of the most important features of blogging: anonymity.

And while SB 1316 is aimed at bloggers, HB 991 goes even further. The kind of suppression being proposed in Florida HB 991 Florida legislature reminds me a great deal of Poland’s “Amendment to the Act on the Institute of National Remembrance.”  Passed in 2018, the law penalizes speech which places responsibility for the Holocaust on Poland or the Polish people. This law creates an environment where discussion of Polish complicity with the Nazis cannot be freely discussed and curtails study and further education about the Holocaust in Poland.

Similar laws exist in other parts of Europe which are also aimed at quelling discussion of Soviet genocide or nationalist movements in other eastern European countries. Are we, too, going to allow our politicians to undermine our understanding of the historic impact of the LGBTQ+ rights movement, or the important roles that queer people have played and continue to play in our society?

What Happens when they Erode Government Accountability?

Freedom of speech and freedom of the press were enshrined in our Constitution as a way to help us hold our government accountable to us. They help us protect ourselves from government overreach and help us protect our most vulnerable citizens. The inclusion of those rights wasn’t intended for use as a tool of oppression, allowing the government to squelch free speech or to legalize repression of historically minoritized people. And that is the intention of these two proposed laws. 

I struggled to make sense of this legislation. Not why it was being proposed but why I felt so differently about it than I might have in the past. I’ve been a passionate defender of First Amendment freedoms for a very, very long time–I’ve always related that to my love of books and reading, and to having parents who did things like give me a copy of Ray Bradbury’s Fahrenheit 451 as soon as I was mature enough to read it. Which was long after dinner table conversations about censorship had begun. I can’t imagine a time when I wouldn’t have been angry about what’s being proposed here.

Why is this Law Different?

But there was something different this time. At first I thought it was because of just how deeply we’d moved towards fascism at every level–local, state and national, after the 2016 presidential election. That would have had me fired up about this. But I realized my feelings went even deeper than that. This time I’m experiencing this attempt at repression not just as a reader, not just as a citizen, but as a writer. This time, I would be muzzled, I would be threatened by the passage of this legislation. With this legislation just being discussed, Adam and I have already had conversations about what it could mean for us at 2 Rules of Writing. Would we need to register? Should I stop writing the stories I do write? Do we need to lawyer up?

You Can’t Shut Me Up… Nor Shut me Down

I may not be a big-name journalist, or a blogger with a huge platform, but I’m a writer. I take the truths that are out there, turn a lens on them and try to turn them into stories that help make sense of things; to tell stories that help people connect in a human way with the lives of other people. But it’s more than that. It’s the kinds of things I write about. Even though these bills target political speech or political stories, when I write about queer life or about being disabled, it inevitably involves politics. Whether it’s marriage equality or accessing bathrooms in a wheelchair, politics are involved.

And that was it. This time, not only were my rights as a reader being threatened, but my rights as a writer are in jeopardy. I may not be a journalist working for a newspaper of record or a national magazine. But I’m a writer. I’ve worked far too hard just to get here to allow anyone to even think about cutting off my ability to tell the stories I tell. So I’m going to continue to do what I know how to do: Tell the stories only I can tell in the way only I can tell them. I intend to keep telling those stories. Whether I run afoul of this legislation or not.