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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 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.

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Congress

Garcia slams effort to ban drag shows as GOP passes NDAA with anti-LGBTQ riders

Equality Caucus denounces anti-LGBTQ amendments

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U.S. Rep. Robert Garcia (D-Calif.) during the debate on Thursday over the National Defense Authorization Act (Screen capture via C-Span)

U.S. Rep. Robert Garcia (D-Calif.) slammed Republican U.S. Rep. Josh Brecheen’s (Okla.) effort to ban drag shows on American military bases during a debate over the annual National Defense Authorization Act spending bill on Thursday.

The appropriations package, which contains five anti-LGBTQ riders pushed by House GOP members, was passed on Friday.

“We know there are a lot of threats to the health and well-being of our service members and their families: poisoned water, toxic mold in military housing, PTSD, and suicide,” said Garcia, who is gay and a co-chair of the Congressional Equality Caucus.

“So I’m stunned to see that the Republican idea to protect our troops is to ban drag shows,” he said. “Mr. Speaker, my Republican colleagues want us to believe that ‘these gays are trying to murder us.’ They want us to believe that drag is harmful, or immoral and wrong. This is ridiculous.”

“We can document and celebrate drag shows on military bases since the late 1800s, and through both world wars,” Garcia continued. “The USO and the Red Cross supported drag during World War II. That’s right: the Army that defeated Hitler and saved the world included drag queens.” 

“Ronald Regan starred in a movie called ‘This Is the Army!’ — a movie about World War II that featured four drag performances,” he said. “And he’s not the only Republican president who knew that drag can be fun and sometimes silly.”

Garcia displayed a photo of former president and presumptive 2024 GOP nominee Donald Trump alongside former New York Mayor Rudy Giuliani, who was dressed in drag.

“Mr. Speaker,” the congressman said, “drag is Art. Drag is Culture. Drag is Creativity. Drag is Comedy. And no, drag is Not a Crime. It’s not pornography. The real obscenity is when one of our colleagues, the gentlewoman from Georgia, shows literal posters of revenge porn in our Oversight Committee! If we want to end porn in government facilities, let’s ban that.”

In a statement on Friday, the Equality Caucus called out House Republicans’ politicization of the military appropriations bill.

“Like last year, House Republicans voted to add poison pill, anti-LGBTQI+ provisions to the NDAA that discriminate against our LGTBQI+ servicemembers and their families,” said Caucus Chair U.S. Rep. Mark Pocan (D-Wis.) “The Equality Caucus remains committed to preventing these discriminatory provisions from becoming law.”

Along with Brecheen’s drag show ban, the caucus highlighted four of these riders from this year’s NDAA:

  • Amendment 46 by U.S. Rep. Greg Steube (R-Fla.), which would “prohibit funds for the Department of Defense Education Activity from being used to purchase, maintain, or display in a school library or classroom books that include transgender and intersex characters or touch on topics related to gender identity or variations in sex characteristics,”
  • Amendment 49 by U.S. Rep. Cory Mills (R-Fla.), which would “ban Pride flags from any workplace, common access area, or public area of the Department of Defense,” and
  • Amendments 52 and 53 by U.S. Reps. Matt Rosendale (R-Mont.) and Ralph Norman (S.C.), which would, respectively, “ban TRICARE from covering and furnishing gender-affirming surgeries and hormone treatments,” and “prohibit the Exceptional Family Member Program (EFMP) from covering or providing referrals for “gender transition procedures”—including puberty blockers, hormone therapy, and surgeries—for servicemembers’ dependent minor children.”
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Congress

Merkley, joined by Advocates for Trans Equality, makes Equality Act push

Ore. senator said ‘our rights and freedoms are on the ballot this year’

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U.S. Sen. Jeff Merkley (D-Ore.) speaks at the Senate Swamp on Tuesday. (Washington Blade photo by Christopher Kane)

U.S. Sen. Jeff Merkley (D-Ore.) called for passage of the Equality Act during a press conference on Wednesday alongside Advocates for Trans Equality, who were convened on Capitol Hill for the Trans Day of Empowerment lobby day.

Instead of freedom and the opportunity to participate fully in society, the senator said, “We see hatred, we see harassment, we see homelessness, we see discrimination, and bigotry, and violence, we see unemployment, we even see state-sanctioned attempts to outlaw the very identity of our transgender members of our community.”

“Across America in 2024, in our state legislatures there have been 500 bills drafted to constrain the opportunity for transgender Americans,” Merkley said. “They take on school curriculum, or they ban gender affirming care or otherwise seek to constrain the opportunity to participate in society, by our transgender individuals, in so many different ways.”

“This is wrong,” he said. “This is unacceptable. And we need to therefore pass the Equality Act here in the halls of Congress.”

Merkley, who introduced the latest iteration of the bill in the Senate, noted the legislation would “end discrimination on sexual orientation or gender identity in employment, in housing, in public accommodations, in mortgages, in financial transactions, in jury duty — every facet of American society.”

U.S. Rep. Mark Takano (D-Calif.), who is gay and a co-chair of the Congressional Equality Caucus, is leading the House version of the bill.

However, Merkley said, “our partners on the right side of the aisle have abandoned us. So, the responsibility to pass the Equality Act falls firmly on the Democratic Party.”

The senator called for an end to the Senate filibuster as a means of passing important legislation like the Equality Act.

Separately, in a statement to the Washington Blade, Merkley said, “Voting is the heart of our democracy. As Americans cast their ballots this fall, they have the chance to decide major issues facing our nation — from LGBTQ+ rights to reproductive freedom to so much more.”

“Democracy doesn’t exist unless every eligible voter has equal opportunity to make their voice heard,” he said. “As attacks on our LGBTQ+ friends and neighbors continue in the halls of Congress, state legislatures, and in our communities, we must all speak out and vote against this rising hate.”

The senator added, “Our rights and freedoms are on the ballot this year, and I won’t stop fighting until every American can live safely and freely as their authentic self.”

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Politics

EXCLUSIVE: Biden-Harris campaign debuts ads targeting LGBTQ voters

Ads to begin running Tuesday

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Pride month ad (Photo courtesy of the Biden-Harris 2024 campaign)

The Biden-Harris 2024 campaign will debut new ads on Tuesday targeting LGBTQ voters in battleground states for Pride Month ahead of November’s election.

“These ads will be featured across national and battleground LGBTQ+ media outlets, and will run throughout the month,” the campaign explained in a press release.

The aim is to “uplift” Biden’s record as “the most pro-LGBTQ+ president in history” while also highlighting “Donald Trump’s history of attacking their rights and his plans to go further.”

One ad that was previewed exclusively by the Washington Blade reads, “Joe Biden and Kamala Harris are fighting for the LGBTQ community!” with a photo of the president and vice president.

Another, formatted for social media, features a photo of Pride flags atop a quote from the “PBS NewsHour”: “On the campaign trail, Donald Trump has been outlining what he plans to do if elected in November. That includes rolling back the rights of millions of LGBTQ+ people. It’s part of a wider playbook to undo many civil rights advances for minority groups.”

“This Pride is an important time to remember the progress we’ve made for our community under President Biden, and the stakes of this election for LGBTQ+ Americans as Trump proudly runs to strip us of our rights,” said Biden-Harris 2024 Spokesperson Kevin Munoz, who is gay.

“From threatening IVF treatments to threatening LGBTQ+ marriages, Trump’s Project 2025 agenda would rip away our rights, and sow needless hate and division for Trump’s political gain,” he said. “LGBTQ+ Americans deserve to hear from us about these stakes, and this buy shows we will continue to show up and make our case to them in this election.”

The ad blitz on Tuesday comes after the campaign’s announcement of a paid media and organizing push for Pride month, which includes sizable investments in courting LGBTQ voters in battleground states.

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