Free speech is a wonderful thing, a right we tend to take for granted in America, particularly those among us who have never lived outside the country and seen what it can be like elsewhere. But it has some valid, important limitations placed upon it. Generally speaking — very generally; this is an extremely complicated, nuanced topic — you can’t claim someone else’s work as your own and sell it due to copyright law. There are certain things that can’t be said in certain public settings due to obscenity laws, and certain pieces of “speech” that aren’t legal even in private due to laws against child pornography. And you’re not allowed to tell harmful lies about a person; this is illegal under defamation law.
All of these are good ideas. They’re not always implemented in good ways, which is why you’ll often hear leftists attacking the ideas, but they’re fundamentally good ideas. And because we hold free speech in such high regard, most of them have strict limits on how they can be enforced. (The big exceptions being child pornography, the illegality of which is basically absolute aside from some very specific privileges for groups working to fight it, and, strangely enough, copyright. I’m still going to write that article sometime in the future.)
Defamation is complicated
In defamation law, the balancing limits to allow for free speech are that 1) the allegedly defamatory remark must have been false, 2) they communicated it to one or more third parties, 3) causing real harm to the subject of the remark. If any of these conditions are not met, it’s not legally actionable defamation. If I say something bad about someone and it’s absolutely true, I’m in the clear. If I say something bad about you, to your face, in private with no one else around to hear it, even if it’s not true, that’s not defamation. And if I say something about somebody that may be false but they can’t show that it caused any real harm to them, it’s also not defamation. But if you cross all of those lines, that’s not permitted even as “free speech” because it causes real harm to real people.
The infamous Supreme Court case New York Times Co. v. Sullivan complicated things further by adding a provisional fourth requirement: if the person being criticized is “a public figure,” then not only do all of the above need to be true, they also need to satisfy an “actual malice” standard that the publisher of the defamatory material knew or reasonably should have known that it was false. Mr. Sullivan was a high-ranking public official, the commissioner of a police department that the New York Times had said false things about, and from one perspective this makes a certain amount of sense; the ability to criticize those in power freely is one of the most important reasons for protecting freedom of speech. Unfortunately, the decision didn’t specify public officials, but rather “public figures,” and the media has been abusing that for all it’s worth ever since, even brazenly claiming immunity for libeling people like Nick Sandmann and Kyle Rittenhouse because their defamatory reporting on them made them into figures of public interest!
Meanwhile, there’s also a very interesting concept in defamation law that counterbalances one of those balancing limits. It’s called “defamation per se,” and it means that there are some accusations so inherently severe that point 3) is waived: you don’t have to show harm if you’re falsely accused of these things, because the accusation itself is serious enough that everyone already understands how harmful it is. (Note: an accusation falling under defamation per se does not affect any of the other points. In particular, point 1 remains in effect; if you can prove that the accusation is true, it’s still not defamatory.) The exact specifics of what constitutes defamation per se vary from one jurisdiction to another, but it typically looks a lot like this:
Indications that a person was involved in criminal activity
Indications that a person had a "loathsome," contagious, or infectious disease
Indications that a person was unchaste or engaged in sexual misconduct
Indications that a person was involved in behavior incompatible with the proper conduct of his business, trade, or profession
This was a pretty good idea when it came out, though honestly it seems a bit dated nowadays. In this day and age, criminal activity and unchastity tend to be things people boast about far more than things they want to hide out of fear for their reputation, afterall. Meanwhile, spurious accusations of x-ism and whateverphobia so routinely ruin people’s lives that any reasonable person could agree that the accusation itself causes harm and is deliberately wielded with the intent to do so. As cancel culture gets worse and worse, I’ve been calling for years now for laws to include them in the definition of defamation per se because of this.
Guess what Florida’s doing?
I’m not going to try to claim credit for Florida HB 991. It’s not like I’m the only one who can see the obvious or anything. But it’s very gratifying to see it getting some official recognition by a state legislature. It’s amending the state laws on the subject such that, among other things,
An allegation that the plaintiff has discriminated against another person or group because of their race, sex, sexual orientation, or gender identity constitutes defamation per se
A defendant cannot prove the truth of an allegation of discrimination with respect to sexual orientation or gender identity by citing a plaintiff's constitutionally protected religious expression or beliefs … [or] scientific beliefs.
A statement by an anonymous source is presumptively false for purposes of a defamation action.
A person may not be considered a public figure for purposes of establishing a defamation or privacy tort claim if his or her fame or notoriety arises solely from one or more of the following: (1) Defending him or herself publicly against accusations. … (4) A video, image, or statement uploaded on the Internet that has reached a broad audience.
The whole thing is worth a read, but those are the big points: modernizing the definition of defamation per se, protecting people from spurious charges of x-ism and whateverphobia based on the expression of morally and scientifically sound facts such as “a man is not a woman,” shoring up the 6th Amendment right to face one’s accuser, and pushing back against abuses of NYT v. Sullivan that pull people into “public figure” status who never should have been there.
Status
The bill was only filed 2 days ago, and still hasn’t gone to any votes yet, but it’s a step in the right direction. We can only hope it gets passed into law in Florida. Like so many other things in the last few years, this bill shows that the Florida legislature really has their heads on straight. We can only hope it passes and serves as an example for other states to pass similar laws in defense of sanity!
If you live in Florida, please contact your local elected representatives and ask them to vote for this bill. If you don’t, please contact your local elected representatives and ask them to introduce similar legislature where you do live.