Politics
Floyd Abrams: GOP-backed Fla. bill targeting the press is ‘plainly inconsistent with’ First Amendment
LGBTQ groups have criticized measure
A bill by Florida Republicans that would relax the standards required for public officials to sue journalists and media organizations for libel is “plainly inconsistent with the First Amendment” according to the acclaimed attorney and constitutional law expert Floyd Abrams.
“The statute is a frontal attack” on the U.S. Supreme Court’s longstanding interpretation of the principles “governing First Amendment libel law as it currently exists,” Abrams told the Washington Blade by phone on Wednesday.
Abrams has represented parties in litigation before the Supreme Court more than a dozen times in some of the most important and high-profile First Amendment cases brought over the last 50 years, which has led to landmark rulings including on matters governing press freedoms.
Abrams is senior counsel at Cahill Gordon and Reindel, the multinational law firm where he has worked since 1963. He is widely considered among the country’s preeminent litigators and experts in constitutional law and was described by the late diplomat and U.S. Sen. Daniel Patrick Moynihan (D-N.Y.) as “the most significant First Amendment lawyer of our age.”
With this Florida statute, Abrams said it appears Republican Gov. Ron DeSantis and his conservative allies in the legislature are making “an effort to come up with something which will lead the Supreme Court to take another look” at its 1964 ruling in New York Times v. Sullivan, which established that the First Amendment confers certain protections for the press against libel lawsuits by public figures.
The ruling, reaffirmed and developed in subsequent cases over the years, acts as a bulwark preventing powerful public figures including elected officials from weaponizing lawsuits or the threat of litigation to silence or censor reporters and news organizations.
DeSantis and Florida’s GOP legislators are hardly out of step with leaders in the Republican Party including former President Donald Trump, who repeatedly pledged to change the libel laws so he could more easily sue media companies.
When Sarah Palin, the former governor of Alaska and 2008 vice presidential candidate, sued the New York Times for libel in 2016, the paper wrote that advocates for weakening the press’ protections against libel lawsuits were “more emboldened now than at any point” since the Sullivan case. They have ideological allies in the right-wing legal establishment, too: In 2021, conservative Supreme Court Justices Clarence Thomas and Neil Gorsuch expressed an interest in revisiting the court’s ruling in Sullivan.
Supreme Court unlikely to revisit longstanding approach to First Amendment, libel law
Abrams said if the Florida bill is signed into law, given that “virtually any entity, which reports the news would be imperiled by this statute,” he can envision legal challenges from a variety of entities, from groups like the “ACLU to the Reporters’ Committee [for Freedom of the Press] to organizations of journalists to newspapers.” Litigation over the law’s constitutionality could, of course, reach the Supreme Court.
At the same time, Abrams said he doubts there is much appetite among the justices to abrogate or weaken the decades-old ruling in Sullivan, which stipulates that to bring a successful libel case against the press, public officials must first prove the offending material was defamatory and then show it was published with “actual malice,” either with the knowledge that it was false or with “reckless disregard” for whether it was true.
“I would be very surprised if Chief Justice Roberts is in favor of revisiting New York Times against Sullivan because he has been a strong First Amendment defender,” Abrams said, and based on “Justice Kavanaugh’s opinions when he was on the Court of Appeals, I would be surprised if he is prepared to challenge” Sullivan.
Abrams conceded “there may be more reasons to think that one or more conservative jurists” on the Supreme Court could be convinced to join Thomas and Gorsuch’s calls to reconsider libel protections for the press. Working against this effort, however, is the extent to which the Florida statute is inconsistent from the court’s analysis of the relevant legal questions, Abrams said.
Examples, he said, include: (1) the proposal’s narrowing of the parameters used to define certain plaintiffs as “public figures” for purposes of First Amendment libel law, a distinction that carries a higher burden of proof than that which is required of private citizens suing members of the press; (2) its treatment of information attributed to anonymous sources as presumably false, a finding that plaintiffs claiming defamation would otherwise be required to prove; and (3) its characterization as inherently defamatory any accusations published by the press of discrimination based on race, sex, sexual orientation or gender identity.
The statute’s presumption that material attributed to anonymous sources is false would undermine the method by which the courts evaluate libel claims brought by public figures, Abrams said: “The Supreme Court has certainly made clear that the legal test requires the party suing to demonstrate the newspaper [or] journalist didn’t believe what he or she was saying.”
Put differently, Abrams said, the analysis turns on the defendant’s state of mind “as a basis for determining if the alleged libel of a public figure is actionable.”
Therefore, Abrams said, to “have a flat presumption that any use of confidential sources will be held against the journalist is inconsistent” with the type of claims that might “lead the Supreme Court to take another look at the law” established with Sullivan.
Censoring criticism of anti-LGBTQ discrimination
Likewise with the legislation’s provision that the press’s accusation of discrimination by a public official would constitute prima facie evidence of defamation, Abrams said “The Supreme Court has said more than once, and often in the voice of conservative jurists, that such speech is protected by the First Amendment.”
Florida’s statute goes even further, however. Per the substantial truth doctrine, a defendant accused of defamation can avoid legal liability by showing that the gist of the material at issue in the complaint was true. Under the proposed bill, a journalist who is sued for publishing accusations of discrimination (now considered inherently defamatory) may not cite as evidence of their truth (or substantial truth) the public official’s membership in any religious or scientific organization — even if that organization has a documented pattern and practice of discrimination, or well-known views that are unambiguously sexist, racist or anti-LGBTQ.
The bill’s apparent effort to censor media coverage of discrimination by public officials raised red flags with LGBTQ groups like GLAAD, whose president, Sarah Kate Ellis said, in a statement shared with the Blade on Wednesday: “Those spewing harmful and inaccurate words do not have the support for their dangerous rhetoric and policies, and they’re rightfully afraid they’ll be held accountable by voters and a free press that accurately reports on efforts to scapegoat and target vulnerable people.”
“This bill is another futile attack on LGBTQ Floridians, a sign of full-blown panic against a rising tide of acceptance for LGBTQ people and for the full equality of women, people of color and queer people of color,” Ellis said.
Jon Harris Maurer, an attorney who serves as public policy director for Equality Florida, the state’s largest LGBTQ advocacy organization, told the Blade by phone on Thursday that based on the alignment of DeSantis and Republicans in the legislature, chances are the bill will be signed into law.
Maurer said Florida’s Republican lawmakers, with supermajorities in both chambers, “have made clear they are prioritizing Gov. DeSantis’ legislative agenda.” At, or at least near, the top of that agenda is the state’s proposal to weaken libel protections for journalists, Maurer said, noting DeSantis’ decision to convene a recent roundtable discussion on the matter where speakers explained their reasons for wanting the Supreme Court to revisit Sullivan.
Other recent high-priority policy items for DeSantis and his allies have focused on using “the LGBTQ community to score political points with a far-right presidential primary base,” Maurer said. Florida’s governor, state lawmakers, or other officials might find the press coverage of these matters unflattering, Maurer said, but that hardly means the coverage is false or even defamatory.
So, the proposal to relax the standards required for public officials to sue reporters and media organizations for libel “is intended to have a chilling effect on media, particularly media that would be critical of Gov. DeSantis and those who share his positions,” Maurer said.
Maurer agreed with Abrams that the bill’s proponents likely have their sights set on the Supreme Court — and that the proposal, as currently written, is totally inconsistent with the court’s treatment of First Amendment libel law.
If the bill is signed into law and litigation over its constitutionality reaches the Supreme Court, Maurer declined to speculate what the outcome might be. The court’s conservative justices have scrapped longstanding precedent in other recent cases, he said, noting last year’s ruling in Dobbs v. Jackson Women’s Health Organization that revoked the constitutional right to abortion first established in 1973 with Roe v. Wade.
Removing protections for confidentiality of anonymous sources
Particularly in circumstances that raise national security concerns, the U.S. government has sometimes sought to prevent news organizations from publishing sensitive information in their possession or issued subpoenas demanding that journalists reveal the identities of the confidential sources who leaked it to them.
In 1971, Abrams successfully represented the Times before the Supreme Court in a landmark First Amendment case challenging the Nixon administration’s claims of executive authority to suppress the paper’s publication of confidential documents. The court’s ruling allowed the Times and other organizations to publish the material, known as the Pentagon Papers, which revealed the Johnson administration had “systematically lied, not only to the public but also to Congress” about America’s political and military involvement in Vietnam.
The government employee responsible for providing the documents to the Times was charged with espionage, though the charges were later dismissed.
The Supreme Court ruled in the 1972 case Branzburg v. Hayes that the First Amendment does not protect reporters from being called to testify before grand juries, but the government must “convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest.”
The decision was cited by Judge Thomas Hogan of the U.S. District Court for the District of Columbia in his 2004 memorandum opinion rejecting a motion to rescind grand jury subpoenas issued to two reporters, one represented by Abrams, in connection with criminal investigations of leaks that had revealed the identity of covert CIA operative Valerie Plame Wilson (in what became known as the “Plame affair”).
Abrams’ client, who had not published a story about Plame but learned she was working as a covert CIA operative through a confidential government source, served several months in jail for her refusal to reveal his identity as demanded by the subpoena.
Some courts have upheld the concept that journalists have a constitutional right to conceal the identities of their sources, and some states and jurisdictions have codified these rulings with so-called “shield laws,” which vary in the extent of their protections afforded to members of the press.
Florida’s proposed statute, in addition to presuming that published information attributed to anonymous sources is false, would revoke the state’s shield laws that protect journalists’ right to keep their identities confidential.
Congress
Van Hollen speaks at ‘ICE Out for Good’ protest in D.C.
ICE agent killed Renee Nicole Good in Minneapolis on Jan. 7
U.S. Sen. Chris Van Hollen (D-Md.) is among those who spoke at an “ICE Out for Good” protest that took place outside U.S. Customs and Border Protection’s headquarters in D.C. on Tuesday.
The protest took place six days after a U.S. Immigration and Customs Enforcement agent shot and killed Renee Nicole Good, a 37-year-old woman in Minneapolis.
Good left behind her wife and three children.
(Video by Michael K. Lavers)
Congress
Advocates say MTG bill threatens trans youth, families, and doctors
The “Protect Children’s Innocence” Act passed in the House
Georgia Congresswoman Marjorie Taylor Greene has a long history of targeting the transgender community as part of her political agenda. Now, after announcing her resignation from the U.S. House of Representatives, attempting to take away trans rights may be the last thing she does in her official capacity.
The proposed legislation, dubbed “Protect Children’s Innocence Act” is among the most extreme anti-trans measures to move through Congress. It would put doctors in jail for up to 10 years if they provide gender-affirming care to minors — including prescribing hormone replacement therapy to adolescents or puberty blockers to younger children. The bill also aims to halt gender-affirming surgeries for minors, though those procedures are rare.
Greene herself described the bill on X, saying if passed, “it would make it a Class C felony to trans a child under 18.”
According to KFF, a nonpartisan source for health policy research, polling, and journalism, 27 states have enacted policies limiting youth access to gender-affirming care. Roughly half of all trans youth ages 13–17 live in a state with such restrictions, and 24 states impose professional or legal penalties on health care practitioners who provide that care.
Greene has repeatedly introduced the bill since 2021, the year she entered Congress, but it failed to advance. Now, in exchange for her support for the National Defense Authorization Act, the legislation reached the House floor for the first time.
According to the 19th, U.S. Rep. Sarah McBride (D-Del.), the first trans member of Congress, rebuked Republicans on the Capitol steps Wednesday for advancing anti-trans legislation while allowing Affordable Care Act tax credits to expire — a move expected to raise health care costs for millions of Americans.
“They would rather have us focus in and debate a misunderstood and vulnerable one percent of the population, instead of focusing in on the fact that they are raiding everyone’s health care,” McBride said. “They are obsessed with trans people … they are consumed with this.”
Polling suggests the public largely opposes criminalizing gender-affirming care.
A recent survey by the Human Rights Campaign and Global Strategy Group found that 73 percent of voters in U.S. House battleground districts oppose laws that would jail doctors or parents for providing transition-related care. Additionally, 77 percent oppose forcing trans people off medically recommended medication. Nearly seven in 10 Americans said politicians are not informed enough to make decisions about medical care for trans youth.
The bill passed the House and now heads to the U.S. Senate for further consideration.
According to reporting by Erin Reed of Erin In The Morning, three Democrats — U.S. Reps. Henry Cuellar and Vicente Gonzalez of Texas and Don Davis of North Carolina — crossed party lines to vote in favor of the felony ban, joining 213 Republicans. A total of 207 Democrats voted against the bill, while three lawmakers from both parties abstained.
Advocates and lawmakers warned the bill is dangerous and unprecedented during a multi-organizational press call Tuesday. Leaders from the Human Rights Campaign and the Trevor Project joined U.S. Rep. Becca Balint (D-Vt.), Dr. Kenneth Haller, and parents of trans youth to discuss the potential impact of restrictive policies like Greene’s — particularly in contrast to President Donald Trump’s leniency toward certain criminals, with more than 1,500 pardons issued this year.
“Our MAGA GOP government has pardoned drug traffickers. They’ve pardoned people who tried to overthrow the government on January 6, but now they want to put pediatricians and parents into a jail cell for caring for their kids,” said Human Rights Campaign President Kelley Robinson. “No one asked for Marjorie Taylor Greene or Dan Crenshaw or any politician to be in their doctor’s office, and they should mind their own business.”
Balint, co-chair of the Congressional Equality Caucus, questioned why medical decisions are being made by lawmakers with no clinical expertise.
“Parents and doctors already have to worry about state laws banning care for their kids, and this bill would introduce the risk of federal criminal prosecution,” Balint said. “We’re talking about jail time. We’re talking about locking people up for basic medical care, care that is evidence-based, age-appropriate and life-saving.”
“These are decisions that should be made by doctors and parents and those kids that need this gender-affirming care, not certainly by Marjorie Taylor Greene.”
Haller, an emeritus professor of pediatrics at St. Louis University School of Medicine, described the legislation as rooted in ideology rather than medicine.
“It is not science, it is just blind ideology,” Haller said.
“The doctor tells you that as parents, as well as the doctor themselves, could be convicted of a felony and be sentenced up to 10 years in prison just for pursuing a course of action that will give your child their only chance for a happy and healthy future,” he added. “It is not in the state’s best interests, and certainly not in the interests of us, the citizens of this country, to interfere with medical decisions that people make about their own bodies and their own lives.”
Haller’s sentiment is echoed by doctors across the country.
The American Medical Association, the nation’s largest organization that represents doctors across the country in various parts of medicine has a longstanding support for gender-affirming care.
“The AMA supports public and private health insurance coverage for treatment of gender dysphoria and opposes the denial of health insurance based on sexual orientation or gender identity,” their website reads.
Rodrigo Heng-Lehtinen, senior vice president of public engagement campaigns at the Trevor Project, agreed.
“In Marjorie Taylor Greene’s bill [it] even goes so far as to criminalize and throw a parent in jail for this,” Heng-Lehtinen said. “Medical decisions should be between patients, families, and their doctors.”
Rachel Gonzalez, a parent of a transgender teen and LGBTQ advocate, said the bill would harm families trying to act in their children’s best interests.
“No politician should be in any doctor’s office or in our living room making private health care decisions — especially not Marjorie Taylor Greene,” Gonzalez said. “My daughter and no trans youth should ever be used as a political pawn.”
Other LGBTQ rights activists also condemned the legislation.
Tyler Hack, executive director of the Christopher Street Project, called the bill “an abominable attack on the transgender community.”
“Marjorie Taylor Greene’s last-ditch effort to bring her 3-times failed bill to a vote is an abominable attack on the transgender community and further cements a Congressional career defined by hate and bigotry,” they said. “We are counting down the days until she’s off Capitol Hill — but as the bill goes to the floor this week, our leaders must stand up one last time to her BS and protect the safety of queer kids and medical providers. Full stop.”
Hack added that “healthcare is a right, not a privilege” in the U.S., and this attack on trans healthcare is an attack on queer rights altogether.
“Marjorie Taylor Greene has no place in deciding what care is necessary,” Hack added. “This is another attempt to legislate trans and queer people out of existence while peddling an agenda rooted in pseudoscience and extremism.”
U.S. Rep. Mark Takano (D-Calif.), chair of the Congressional Equality Caucus, also denounced the legislation.
“This bill is the most extreme anti-transgender legislation to ever pass through the House of Representatives and a direct attack on the rights of parents to work with their children and their doctors to provide them with the medical care they need,” Takano said. “This bill is beyond cruel and its passage will forever be a stain on the institution of the United States Congress.”
The bill is unlikely to advance in the Senate, where it would need 60 votes to pass.
Politics
LGBTQ Democrats say they’re ready to fight to win in 2026
DNC winter meetings took place last weekend in Los Angeles
The Democratic National Committee held its annual winter meetings in Downtown Los Angeles over the weekend, and queer Democrats showed up with a clear message for the national organization: don’t abandon queer and transgender people.
Following last year’s disastrous presidential and congressional elections, many influential pundits and some powerful lawmakers called on Democrats to distance the party from unpopular positions on trans rights, in order to win swing districts by wooing more conservative voters.
But members of the DNC’s LGBTQ Caucus say that’s actually a losing strategy.
“There are still parts of our party saying we need to abandon trans people in order to win elections, which is just not provable, actually. It’s just some feelings from some old consultants in DC,” LGBTQ Caucus Chair Sean Meloy says.
Some national Democrats are already backtracking from suggestions that they walk back on trans rights.
California Gov. Gavin Newsom grabbed national attention in March when he suggested that it was “deeply unfair” for trans girls to play in women’s sports. But last week, he doubled down on support for trans rights, claiming to have signed more trans-rights legislation than any governor in the country, and entering into feuds on X with Elon Musk and Nicki Minaj over his support for trans kids.
Democrats are also clearly feeling the wind in their sails recently after major election victories in Virginia and New Jersey last month, as well as victories in dozens of local and state legislative elections across the country in 2025.
“[Abigail] Spanberger in Virginia didn’t win by dodging the trans question. She won by attacking it, confronting it, and that’s how she got ahead,” says Vivian Smotherman, a trans activist and at-large member of the DNC’s LGBTQ Caucus.
“Trans people are not a problem. We are a resource,” Smotherman says. “For my community, surviving into adulthood is not a guarantee, it’s an accomplishment. You don’t walk through a survival gauntlet without learning things … I’m not begging the DNC to protect my community. I’m here to remind you that we are the warriors tempered by fire, and we are fully capable of helping this party win.”
At its own meeting on Friday, the LGBTQ Caucus announced several new initiatives to ensure that queer and trans issues stay top of mind for the DNC as it gears up for the midterm elections next year.
One plan is to formalize the DNC’s Trans Advisory Board as distinct from the LGBTQ Caucus, to help introduce candidates across the country to trans people and trans issues.
“One in three people in this country know a trans person. Two-thirds of Americans don’t think they do,” Smotherman says. “So the real problem is not being trans, it’s that you don’t know us. You cannot authentically support a trans person if you’ve never met one.
“That’s why my first goal with this Trans Advisory Board is to host a monthly Meet a Trans Person webinar. Not as a spectacle, as a debate, but as a human connection, and I will be charging every state chair with asking every one of their candidates up and down the board if they know a trans person. And if that person doesn’t know a trans person, I’m gonna have that state chair put them on that webinar.”
The LGBTQ caucus is also opening up associate membership to allies who do not identify as LGBTQ, in order to broaden support and connections over queer issues.
It’s also preparing for the inevitable attacks Republicans will throw at queer candidates and supporters of LGBTQ issues.
“These attacks are going to come. You have to budget money proactively. You have to be ready to fight,” Meloy says. “There are some local party chairs who don’t want to recruit LGBTQ candidates to run because these issues might come up, right? That’s an absolutely ludicrous statement, but there are still people who need support in how to be ready and how to respond to these things that inevitably come.”
“The oldest joke is that Democrats don’t have a spine. And when they come after us, and we do not reply, we play right into that.”
Meloy also alluded to anti-LGBTQ tropes that queer people are out to harm children, and said that Democrats should be prepared to make the case that it’s actually Republicans who are protecting child abusers – for example, by suppressing the Epstein files.
“They are weak on this issue. Take the fight, empower your parties to say, ‘These people have nothing to stand on,’” Meloy says.
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