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Floyd Abrams: GOP-backed Fla. bill targeting the press is ‘plainly inconsistent with’ First Amendment

LGBTQ groups have criticized measure

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Republican Florida Gov. Ron DeSantis (Screen capture via YouTube)

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 pressā€™ protections against libel lawsuits were ā€œmore emboldened now than at any pointā€ 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 courtā€™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 lawā€™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 Gorsuchā€™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 statuteā€™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 defendantā€™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 lawā€ 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.”

Floridaā€™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 officialā€™s membership in any religious or scientific organization ā€” even if that organization has a documented pattern and practice of discrimination, or well-known views that are unambiguously sexist, racist or anti-LGBTQ. Ā 

The billā€™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.ā€ At, or at least near, the top of that agenda is the stateā€™s proposal to weaken libel protections for journalists, Maurer said, noting DeSantisā€™ 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 billā€™s proponents likely have their sights set on the Supreme Court ā€” and that the proposal, as currently written, is totally inconsistent with the courtā€™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 courtā€™s conservative justices have scrapped longstanding precedent in other recent cases, he said, noting last yearā€™s ruling in Dobbs v. Jackson Womenā€™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 administrationā€™s claims of executive authority to suppress the paperā€™s publication of confidential documents. The courtā€™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 Congressā€ about Americaā€™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”).

Abramsā€™ 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 stateā€™s shield laws that protect journalists’ right to keep their identities confidential.

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Congress

Five HIV/AIDS activists arrested during USAID hearing

Protesters demanded full restoration of PEPFAR funding

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(Public domain photo)

Capitol Police on Thursday arrested five HIV/AIDS activists who disrupted a House Foreign Affairs Committee hearing that focused on the U.S. Agency for International Development.

The activists ā€” including Health GAP Executive Director Asia Russell, Housing Works CEO Charles King, and ACT UP NY co-founder Eric Sawyer ā€” started chanting “PEPFAR (the President’s Emergency Plan for AIDS Relief) saves lives. Restore AIDS funding now” shortly after Max Primorac, senior research fellow at the Heritage Foundation’s Margaret Thatcher Center for Freedom, began to testify. They also held posters that read “Trump kills people with AIDS worldwide.”

The Trump-Vance administration last month froze nearly all U.S. foreign aid spending for at least 90 days. Secretary of State Marco Rubio later issued a waiver that allows PEPFAR and other “life-saving humanitarian assistance” programs to continue to operate during the freeze.

The Washington Blade last week reportedĀ PEPFAR-funded programs in Kenya and other African countries have been forced to suspend services and even shut down because of a lack of U.S. funding. The Trump-Vance administration’s efforts to dismantle USAID, along with the suspension of nearly all U.S. foreign aid, has been “a catastrophe” for the global LGBTQ rights movement.

“I guess these guys don’t watch the news. They didn’t realize that PEPFAR was one of the many programs that did prove to be lifesaving, so the funding was restored,” said U.S. Rep. Brian Mast (R-Fla.), who chairs the House Foreign Affairs Committee, after Capitol Police removed the activists from the room. “Somebody better give ’em a link to … I don’t know, maybe Fox News or something like that.”

Russell and King are two of the dozens of HIV/AIDS activists who protested outside the State Department on Feb. 6 and demanded U.S. officials fully restore PEPFAR funding.

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Politics

Trump picks Richard Grenell as interim Kennedy Center executive director

President proclaimed “no more drag shows” at D.C. institution

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Richard Grenell (Washington Blade photo by Michael Key)

President Donald Trump on Monday picked Richard Grenell to serve as interim executive director of the Kennedy Center, just days after appointing himself chair the national cultural center and removing several members of the institution’s board of trustees.

Grenell is an openly gay diplomat and fierce ally to the president who served in high profile roles, including as acting director of national intelligence, during his first administration.

“Ric shares my vision for a GOLDEN AGE of American arts and culture, and will be overseeing the daily operations of the Center,” Trump wrote on Truth Social. “NO MORE DRAG SHOWS, OR OTHER ANTI-AMERICAN PROPAGANDA ā€” ONLY THE BEST. RIC, WELCOME TO SHOW BUSINESS!”

In a previous post announcing his takeover of the center and purging of Democratic board members including appointees of former President Joe Biden , Trump wrote “Just last year, the Kennedy Center featured drag shows specifically targeting our youth ā€” THIS WILL STOP.”

Board members oversee the administration of federally appropriated funds for the ā€œoperation, maintenance, and capital repair of the presidential memorial as well as its trust-funded artistic programming,ā€ per the 2025 fiscal year budget justification to Congress. Together with previous honorees, they are responsible for selecting new Kennedy Center Honors recipients each year.

The federal government provided about $45 million in funding to the center last year, roughly a fifth of its $268 million operating budget in 2024.

On Wednesday, Grenell said on X that he was briefed by the center’s CFO and learned there is “ZERO cash on hand. And ZERO in reserves. And the deferred maintenance is a crisis.”

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Congress

House Dems urge OPM not to implement anti-trans executive order

Authors were Dem. U.S. Reps. Mark Takano (Calif.), Jamie Raskin (Md.), and Gerald Connolly (Va.)

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Rep. Mark Takano (D-Calif.) (Washington Blade photo by Michael Key)

Three House Democrats including Congressional Equality Caucus Chair Mark Takano (Calif.) issued a letter on Wednesday urging the Office of Personnel Management to not implement President Donald Trump’s anti-trans executive order, “Defending women from gender ideology extremism and restoring biological truth to the federal government.”

Also signing the letter were U.S. Rep. Jamie Raskin (Md.), ranking member of the House Judiciary Committee, and U.S. Rep. Gerald Connolly (Va.), ranking member of the House Oversight Committee.

The lawmakers wrote the order “unlawfully attacks the civil rights of transgender Americans” while the White House’s corresponding memo and guidance “implements unlawful discrimination by the federal government against transgender people in the civil service and the provision of federal services.”

Specifically, they call unconstitutional the directive for agencies to “end all programs, contracts, grants, positions, documents, directives, orders, regulations, materials, forms,
communications, statements, plans, and training that ‘inculcate’ or ‘promote’ ‘gender
ideology’ā€”which the Executive Order defines broadly to encompass acknowledging the simple
existence of transgender people and gender identity.”

ā€œWe are deeply alarmed by these and other actions the Trump Administration has taken in its first few weeks to eliminate all government support for the transgender community, including efforts designed to enforcing the rights and support the health of transgender individuals,” the congressmen wrote.

They added, “We are also appalled by the Administrationā€™s attempts to weaponize federal agencies to target the transgender community for discrimination and exclusion. These actions contradict federal law, Supreme Court precedent, and most importantly the Constitutionā€™s guarantee of equal protection under the law.ā€

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