Two wrongs don’t make a right: media abuses spawned Florida’s flawed defamation bill

by | Apr 16, 2023

Yellow journalism, a term coined in the late 19th century, refers to news reporting that is sensationalized, poorly researched, and often includes exaggeration or distortion of facts. Historically, those techniques played a significant role in shaping public opinion and influencing events like the Spanish-American War. Today, the resurgence of yellow journalism in both legacy and digital news outlets across the nation – and most definitely in the Sunshine State – has led to a decline in public trust.

Even now, we are witnessing one of the most dramatic cases of yellow journalism play out before our eyes as Dominion Voting Systems’ defamation case proceeds in court against Fox News. The case goes to trial in Delaware next week. The fallout from the discovery in that case – including emails exposing once-trusted Fox journalists knowingly pushing an unsubstantiated narrative – threatens to dismantle the legal protections that have long existed to protect journalists and allow them to perform their duties without fear of frivolous lawsuits.

The standard for media responsibility was set in the 1964 case New York Times Co. v. Sullivan, where the Supreme Court unanimously endorsed the “actual malice” standard. This standard requires public figures to prove that their detractors either knew their statements were false or recklessly disregarded the truth. Intentional errors remain actionable, but honest mistakes are not.

Despite this standard, media outlets right here in Florida have engaged in some of that very same bad behavior, sensationalizing politically-charged issues and portraying perfectly legal political activities as though they are criminal in nature. They have relied on anonymous sources to substantiate a story even though the source’s claims can’t be substantiated by readers. And once the story is published on page A1 above the newspaper fold, the proverbial toothpaste can’t be put back into the tube. The damage is done, and no later “correction” printed at the bottom of page F12 is going to fix it.

Whether it’s an “anonymous source” making claims that can’t be verified, rumor-mongering on blogs and social media, or just plain “fake news” headlines designed to get readers to click in the ever-increasing desperation for advertising dollars, Florida’s news landscape has plenty of blame to go around. We’ve called out countless abuses in our regular “Media Check” feature, and to be honest, in the nearly seven years The Capitolist has been covering Florida, we’ve even relied on our share of anonymous sources and reported on our share of rumors, too.

Our current media environment has led to a call by Florida lawmakers for stricter defamation laws to protect private citizens and public figures alike. And while the momentum surrounding Florida’s controversial defamation bill (HB 991) appears to have slowed in recent weeks, its very existence is born from the perceived need to make it easier for public figures (including state lawmakers) to pursue legal remedies when they are unfairly attacked in the media. Many Florida lawmakers this year decided they’d finally seen, heard and read enough and decided to do something about it.

The proposal currently sitting in the Florida House means well, aiming to combat misinformation published by journalists, news organizations or social media sites. But it does so in part by removing long-standing legal protections – known as journalist’s privilege – in defamation claims cases. The bill also allows certain individuals to avoid being classified as “public figures” in specific cases, removing one of the key defenses journalists have traditionally relied on for legal protection. Further, the bill alters the legal standard public figures must meet to win a defamation case – specifically, current law requires a public figure to show actual malice to win a defamation case. HB 991 removes that standard, making it much easier for lawsuits to move forward.

Finally, the bill puts immense legal pressure on journalists to reveal anonymous sources by creating a presumption that statements from anonymous sources are false for defamation purposes – an absurd standard – and then the bill sets requirements for journalists who refuse to reveal those sources.

Want to know the identity of the anonymous source that leaked something to the press? Claim the leak is false and file a lawsuit against the reporter to force them to identify the source. That’s a bad idea, and runs counter to the way our media has always operated and sets our nation apart from others that don’t enjoy freedom of the press.

Regardless of its good intentions, HB 991 would only increase the challenges faced by legacy and digital news outlets in balancing the protection of free speech with the responsibility to report accurately, and it will force many digital news outlets to go out of business as the legal challenges prove too expensive to fight.

Already, the decline of newspaper revenue has forced publishers to compete in a relentless news cycle that embraces sensationalism, undersourced reporting, and rumor-mongering, putting America’s press protections in legal jeopardy. Those are generally not “honest mistakes.” They are intentional efforts to garner attention that would otherwise be unwarranted, and newspapers engaging in the practice should be held accountable. But creating more legal jeopardy for media outlets will only result in a further financial catastrophy and less competition.

The issue of media responsibility goes beyond political affiliations. The actual malice standard protects conservative and liberal outlets alike, as well as independent and alternative sources such as bloggers, political commentators, and activists. To uphold the values of free speech and accurate reporting, news organizations need to do a better job prioritizing the validation and verification of sources and avoid reckless behavior that could result in the loss of crucial protections.

But if they haven’t already, lawmakers should send HB 991 back to the drawing board. Its intent is admirable but it contains flaws that will result in far too much litigation for today’s new media outlets to endure.


  1. kccincc

    Biased a little?

  2. Stan

    Not a biased article really but now the author can perhaps empathize with others that are targets of a one party system that has a habit of over-reacting and rushing to chest-thump over legitimate issues rather than do the hard work of vetting and creating good legislation.

  3. Deborah Coffey

    Dominion will easily prove that FOX has met the standard of intentional lying. If you Republicans can’t take the heat, get out of the kitchen. You’ve become a bunch of snowflakes trying to rule the country as a minority, creating laws that only benefit you! Dominion will win and we’re going to whoop GOP arses in 2024.

  4. Ron Kirkland

    Like to hear both sides of a story without political sides and special interest content only!

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