DeSantis wants to destroy a fundament of American free speech law.
Mar 8, 2023, 11:00 AM UTC
Florida Gov. Ron DeSantis speaks at a press conference in January 2023. Paul Hennessy/SOPA Images/LightRocket via Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.
Florida’s Republican Gov. Ron DeSantis wants to eliminate the First Amendment safeguards that prevent lawsuits seeking to strong-arm the press into silence.
He’s been very clear about this goal: In February, DeSantis led a roundtable discussion brainstorming ideas to weaken the press’s First Amendment protections. Flanked by a panel dominated by defamation plaintiffs and lawyers, the Orbánesque governor attacked the Supreme Court’s landmark decision in New York Times v. Sullivan (1964) for, in his words, empowering a media that will “find a way to smear you.”
Sullivan was a historic decision establishing that the government (and, in many cases, private litigants) may not censor the media, political advocates, and the public at large through defamation suits intended to shut down dissenting voices. The case arose out of a Jim Crow-era official’s attempt to silence civil rights protesters. It established that someone accused of making false claims about a public figure regarding a matter of public concern may not be held liable for defamation, unless the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”
Without Sullivan, government officials could potentially use defamation suits to impose financially devastating liability on their political enemies — which is what an Alabama official tried to do in Sullivan itself. And a wealthy individual who disagrees with a newspaper’s coverage could potentially fund lawsuits targeting any false statement made by that newspaper, no matter how minor, until the sheer cost of defending against these suits bankrupts the paper.
Much of DeSantis’s February event consisted of the governor asking the panelists for proposals to make it easier to prevail in lawsuits against the press. Their ideas ranged from requiring losing defamation defendants to pay for the plaintiffs’ lawyers, to limiting the types of defendants who can invoke Sullivan, to blatantly unconstitutional proposals to eliminate Sullivan’s protections and replace them with much weaker safeguards for free speech.
Many of these proposals are incorporated into a bill introduced by Florida state Rep. Alex Andrade (R), whom Reason Magazine describes as “a legislative ally of Florida Gov. Ron DeSantis.” DeSantis has said that targeting “legacy media outlets” is a priority in the current state legislative session.
DeSantis’s proposals should alarm anyone in media, and, indeed, anyone who believes that the government or other powerful public actors should not be allowed to target individuals who criticize them.
The final shape of this threat to free speech is still somewhat unclear. For one thing, it remains to be seen whether a bill will make it through the Florida legislature, and, if it does, how closely it will resemble Andrade’s bill. (Though it’s worth noting that under DeSantis, the state has already enacted unconstitutional legislation attacking the free speech rights of schoolteachers, university professors, social media platforms, and the Walt Disney Company.) It is also far from clear that there are five votes on the Supreme Court to overrule Sullivan.
But even if there are not five votes right now to abolish longstanding protections for free speech, the Court’s membership is always in flux. DeSantis is widely expected to run for president in 2024. If he prevails, he can start filling the federal judiciary with judges who share his desire to punish the press.
And if DeSantis succeeds in abolishing Sullivan, all press outlets, and potentially anyone who criticizes government officials, could be at immediate risk of financial ruin through defamation suits.
Although the First Amendment has been part of the Constitution since 1791, it largely lay dormant for much of American history. As recently as the early 20th century, the union leader and Socialist presidential candidate Eugene Debs was sentenced to 10 years in prison for giving a speech opposing the draft. His conviction was upheld by a unanimous Supreme Court.
Around the middle of that century, however, the Court began to take the First Amendment seriously. Sullivan was one of the earliest and most important decisions establishing the modern-day free speech regime, which is rooted in Justice Louis Brandeis’s famous declaration that “the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies.”
The Sullivan decision arose out of a Jim Crow official’s attempt to silence civil rights activists — and media outlets that publish information that painted Jim Crow officials in a negative light — through malicious use of defamation law.
In 1960, the Times published a full-page advertisement purchased by civil rights activists. The ad celebrated the work of “thousands of Southern Negro students . . . engaged in widespread non-violent demonstrations,” and warned that these students “are being met by an unprecedented wave of terror by those who would deny and negate” the Constitution. The ad sought to raise funds to support these protesters, to advance “the struggle for the right-to-vote,” and to pay for legal counsel for Dr. Martin Luther King Jr., who was facing criminal charges in Montgomery, Alabama.
Unfortunately, the ad contained some minor factual errors. To give two examples, it misidentified the song sung by student protesters at a particular protest (they sang “The Star-Spangled Banner” and not “My Country, ‘Tis of Thee”). And the ad claimed that King had been arrested seven times, when in fact he’d only been arrested four times.
Pointing to small errors like these, a Montgomery police commissioner filed a defamation suit and convinced Alabama’s courts to award him $500,000 against the New York Times (about $5 million in 2023 dollars).
In overruling this decision, the Supreme Court explained that “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need to survive.” The Court in Sullivan understood that, if the government or private litigants have too much power to sanction defamation, then that will lead to an intolerable amount of “self-censorship.”
Journalists, political activists, candidates for public office, and ultimately the public at large will be too afraid to criticize officials, executives, celebrities and other powerful individuals, or to speak freely about matters of public concern, if they fear that an unintended error can lead them to financial ruin.
Sullivan, in other words, rested on the proposition that free speech cannot exist unless society tolerates some factually erroneous statements, even if these statements sometimes paint an innocent person in an unfavorable light. The alternative is to hang a sword of Damocles over the head of every journalist, every political activist, and really anyone who speaks out on controversial matters, which can fall the moment they make an innocent mistake. As the Court concluded, “whatever is added to the field of libel is taken from the field of free debate.”
For nearly six decades, Sullivan has formed the backbone of American free speech law, protecting journalists and political advocates of all kinds from the type of censorious tactics that the Alabama police commissioner engaged in in the 1960s. It also protects free speech from private litigants who seek to quash it.
The rule announced in Sullivan is, admittedly, more protective of free speech than the rule in many other nations. But it has worked, for two generations, to halt the kind of malicious attacks on free speech that Alabama attempted in the 1960s. And, in a nation with 50 states — each of which has its own judicial system and is made up of many divergent cultures — Sullivan prevents litigants who wish to shut down a political conversation from hunting for the one court in America that is most likely to share this desire, and then obtaining a massive verdict like the one in the Sullivan case itself.
Nevertheless, in recent years, a handful of very powerful far-right figures have called for Sullivan’s safeguards to be abolished.
Former President Donald Trump, for example, argued in a 2022 legal filing that Sullivan should be abandoned because “it seems unlikely that at the time Sullivan’s actual malice standard was pronounced, the Court envisioned a news outlet which seek [sic] to indoctrinate its audience rather than inform.”
In reality, partisan press has been a feature of journalism from the earliest days of the American Republic. Early US newspapers often received patronage from political parties, and partisan writers from this era engaged in the kind of false (and even racist) invective that would shock modern-day readers — one journalist, for example, falsely labeled presidential candidate Thomas Jefferson “the son of a half-breed Indian squaw, sired by a Virginia mulatto father.”
And Trump’s suggestion that the Supreme Court in the 1960s would have been unfamiliar with news outlets that seek to “indoctrinate its audience” is implausible, to say the least. According to Nieman Reports, a Harvard-based publication that studies the press, the white press in much of the pre-civil rights era South was “essentially controlled by those in power, with white press leaders working hand in glove with the Democratic Party to craft and maintain white supremacist political, economic, and social orders.”
Sullivan was decided in a media environment that was no less contentious — and, at times, no less committed to advancing a political viewpoint — than some of today’s media. But the Court understood that, whatever harm this sort of invective does to the public, such harm pales in comparison to the cost of allowing the government or other powerful individuals to impose financial ruin on their enemies.
Nevertheless, Trump and DeSantis do have at least two allies on the current Supreme Court. Justices Clarence Thomas and Neil Gorsuch have called for Sullivan to be overruled. Dissenting in Berisha v. Lawson (2021), Gorsuch suggested that Sullivan’s nationwide protections should be abolished, and that defamation law should be “almost exclusively the business of state courts and legislatures” — a rule that would most likely permit Alabama (or Florida, for that matter) to behave exactly as it did in the Jim Crow era.
Not long after DeSantis broadcast his panel discussion examining ways to rewrite Florida law to weaken the press’s free speech protections, Rep. Andrade introduced his bill incorporating many of the panel’s suggestions. It’s a wide-ranging bill, with some ideas that are likely constitutional, but many that are not — and some that are more extreme even than the ideas raised during DeSantis’s panel.
The state senate is also considering a somewhat weaker (but still unconstitutional) bill limiting free speech rights, so it remains to be seen which, if any, attacks on press freedom will actually become law. Given the Florida legislature’s recent history of passing laws attacking First Amendment rights, however, and given the fact that much of the Andrade bill tracks proposals that DeSantis sought out in his February panel discussion, it is reasonable to predict that these aren’t empty threats.
Andrade’s bill, known as HB 991, does contain a few provisions that probably do not violate the Constitution. Its provision requiring losing defamation defendants to pay “reasonable costs and attorney fees” to the plaintiffs, for example, does not conflict with Sullivan’s rules about who can be found liable for defamation — though the obvious purpose of such a provision is to encourage more people to sue the media.
Other provisions of the bill, meanwhile, are even more hostile to free speech than the Alabama courts whose judgment was overturned in Sullivan. One provision, for example, allows people to sue and collect “statutory damages of at least $35,000” if they’ve truthfully been accused of anti-LGBTQ discrimination but they engaged in discrimination solely because of their “constitutionally protected religious expression or beliefs” or “scientific beliefs.”
Currently, truth is an absolute defense to a defamation suit, even setting aside the additional protections afforded by Sullivan. And these extreme provisions are unlikely to be upheld — even Gorsuch indicated in his Berisha opinion that defamation law has historically applied to “false publications,” and not to truthful statements that the government does not like.
Perhaps most significantly, HB 991 would replace Sullivan’s requirement that a defamation plaintiff prove that a defendant acted with “knowledge” that they made a false statement or with “reckless disregard” for the truth with a much less speech-protective rule. Under HB 991, a plaintiff may collect if there was “contrary evidence” that “should have been known to the defendant after a reasonable investigation.”
This last provision is important because it is a direct attack on Sullivan, and thus would tee up a lawsuit testing whether the Supreme Court has five votes to overrule Sullivan.
The alternative bill in the state senate, known as SB 1220, does not contain many of the most extreme provisions in the Andrade bill. Among other things, it does not include the bizarre provision targeting truthful statements about LGBTQ discrimination.
But SB 1220 should still alarm anyone who supports the First Amendment. One provision, for example, states that “the publication of an altered or unaltered photograph, video, or audio recording may form the basis of a defamation action.” So a journalist — or, for that matter, anyone on Twitter — could potentially face liability because they tweet out a completely accurate photograph that hasn’t been altered in any way.
And, in at least some cases, SB 1220 applies the same unconstitutional “should have been known to the defendant after a reasonable investigation” standard that forms the heart of HB 991. That would set up a lawsuit challenging Sullivan just as surely as the more aggressive Andrade bill.
Assuming that DeSantis signs legislation keying up a direct challenge to Sullivan, how likely is it that the Supreme Court will actually join this effort to silence reporters and political dissenters?
Realistically, it is probably more likely than not that the current Supreme Court would reject a direct assault on Sullivan. Only two justices, Thomas and Gorsuch, have explicitly called for Sullivan to be reconsidered — although it probably wouldn’t be difficult to convince Justice Samuel Alito, who is the Court’s most reliable GOP partisan, and who has supported similarly partisan efforts to roll back the First Amendment in the past, to join these two justices.
Still, that’s only three votes to overrule Sullivan, and the Court’s other Republican appointees — Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett — have shown some willingness to break with far-right litigants who make truly audacious requests of the Supreme Court.
Yet, while a direct attack on Sullivan is unlikely to succeed today, there are two reasons to fear that it could succeed in the future.
The first is simply that opposition to free speech rights for the press is fast becoming the official position of the Republican Party. Both of the presumed frontrunners for the GOP presidential nomination in 2024 — Trump and DeSantis — support getting rid of New York Times v. Sullivan. As do other leading figures within the GOP.
As any veteran of the Obamacare wars will tell you, legal arguments that are widely viewed as ridiculous today can easily gain purchase if they are embraced by legal and political elites. When the initial lawsuits challenging Obamacare were filed in 2010, they were widely viewed as so absurd that few legal experts of any political persuasion would defend them. At a March 2010 panel on Obamacare hosted by the University of Washington, the moderator announced that “we tried very hard to get a professor who could come and who thinks this is flat-out unconstitutional, but there are relatively few of them, and they are in great demand.”
But that was before the Republican Party, and allied organizations like the Federalist Society, spent two years touting these arguments and promoting lawyers who would make this argument. We all know what happened next. In NFIB v. Sebelius (2012), five justices signed on to a legal theory that, just two years earlier, was widely derided as ridiculous. And four of them voted to repeal the Affordable Care Act in its entirety.
This happened because, as Yale law professor Jack Balkin has written, “law, and especially constitutional law, is grounded in judgments by legal professionals about what is reasonable.” A legal argument can “move from off the wall to on the wall because people and institutions are willing to put their reputations on the line and state that an argument formerly thought beyond the pale is not crazy at all, but is actually a pretty good legal argument.”
Moreover, as the Obamacare saga shows, this process can move especially quickly when legal elites and a political party unite, telling their fellow partisans on the federal bench to take a certain argument seriously. If, one year from now, the most recent former Republican president, the current GOP presidential nominee, and legal elites throughout the GOP are all united behind the proposition that Sullivan should be overruled, then there is a risk that Roberts, Kavanaugh, and Barrett could be moved by their views and vote to undermine or even overrule Sullivan.
And that brings us to the second reason to fear that Sullivan could fall: Ron DeSantis will almost certainly run for president. If nothing changes in GOP politics before 2024, the Republican nominee is likely to be either DeSantis or Trump, both of whom oppose Sullivan. And presidents appoint Supreme Court justices.
Right now, both Chief Justice Roberts and liberal Justice Sonia Sotomayor are 68 years old. If DeSantis wins the 2024 election, they will both be in their mid-70s when DeSantis completes his first term — placing both of them at the age where they could either decide to retire or be forced off the Court for health reasons.
So even if there are only three votes on the current Court to overrule Sullivan, there is a very serious risk that Trump or DeSantis could replace two of the justices in the majority and give the Supreme Court a new majority that wants to drastically limit the First Amendment.
While it remains to be seen whether the Republican Party will unite behind DeSantis’s anti-First Amendment views — or whether it would remain united behind those views for long enough to build an anti-Sullivan majority on the Supreme Court — the First Amendment is in grave danger if one of America’s two major political parties wants to tear it down.
A DeSantis-led GOP is potentially an existential threat to the right to free speech.
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