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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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Politics

Chasten Buttigieg speaks out against Pence’s homophobic remarks

Pence doubled down Thursday on homophobic remarks about the Transportation Secretary

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Chasten Buttigieg on The View (Screen shot/YouTube)

Chasten Buttigieg, husband of Transportation Secretary Pete Buttigieg, said former Vice President Mike Pence has not apologized for homophobic and misogynistic remarks about the couple that he made at a dinner in D.C. last weekend.

“I spoke up because we all have an obligation to hold people accountable for when they say something wrong, especially when it’s misogynistic, especially when it’s homophobic,” Chasten Buttigieg said during an appearance Thursday on ABC’s The View.

Last Saturday, Pence had joked that following the birth of the Buttigieg twins in 2021, the transportation secretary took “maternity leave” and then the country suffered “postpartum depression” over issues with airlines and air travel.

The former vice president delivered the remarks — which were first reported by the Washington Blade — during the annual Gridiron Club dinner, which he headlined along with Secretary of State Antony Blinken and New Jersey Gov. Phil Murphy (D).

Per tradition, speakers at the dinner are expected to poke fun at political figures, including guests in attendance, but Pence’s comments quickly drew outrage for their homophobia and misogyny.

White House Press Secretary Karine Jean-Pierre addressed the matter in a comment shared with the Blade on Monday, “The former vice president’s homophobic joke about Secretary Buttigieg was offensive and inappropriate, all the more so because he treated women suffering from postpartum depression as a punchline.”

The Buttigiegs have been public about the “terrifying” ordeal they suffered following the premature births of their twins. The newborns developed serious Respiratory Syncytial Virus Infections (RSV) — which required one to be hospitalized, put on a ventilator, and transferred to a children’s hospital in Grand Rapids, Mich., for treatment.

“An honest question for you, @Mike_Pence, after your attempted joke this weekend,” Chasten Buttigieg tweeted on Monday, “If your grandchild was born prematurely and placed on a ventilator at two months old – their tiny fingers wrapped around yours as the monitors beep in the background – where would you be?”

The transportation secretary, asked on Monday whether they are owed an apology from Pence, said, “I’ll let others speak to that.”

During Thursday’s interview, Chasten Buttigieg called out the hypocrisy of Pence’s putative identity as a “family values Republican,” telling the talk show’s hosts, “I don’t think he’s practicing what he preaches here.”

“But also,” he added, “it’s a bigger conversation about the work that women do in families — taking a swipe at all women and all families and expecting that women would stay home and raise children is a misogynistic view.”

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Politics

LGBTQ groups challenge Fla. healthcare ban for trans youth

Law ‘stands in direct contrast to the overwhelming weight of the science’

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Gov. Ron DeSantis(R-Fla.) (Screen capture via YouTube)

Attorneys from a coalition of three LGBTQ groups and a public interest law firm announced on Thursday their plans to file a lawsuit on behalf of Florida parents challenging the state’s ban on healthcare interventions for the treatment of gender dysphoria in minors.

Plaintiffs are represented by Southern Legal Counsel, Inc., the Human Rights Campaign (HRC), GLBTQ Legal Advocates and Defenders (GLAD), and the National Center for Lesbian Rights (NCLR). A spokesperson for NCLR told the Washington Blade they plan to file the complaint “in the next week or so.”

The ban on guideline-directed, medically necessary healthcare for trans youth went into effect Thursday. The rule has been opposed by major medical associations with relevant clinical expertise including the American Academy of Pediatrics, the Endocrine Society, the American Academy of Child and Adolescent Psychiatry and the World Professional Association for Transgender Health.

These organizations’ clinical practice guidelines and recommendations for the treatment of gender dysphoria in minor patients are backed by hundreds of peer-reviewed studies on the safety, efficacy, and medical necessity of these interventions.

“This policy came about through a political process with a predetermined conclusion, and it stands in direct contrast to the overwhelming weight of the evidence and science,” said Simone Chriss, director of Transgender Rights Initiative, Southern Legal Counsel, in a press release announcing the lawsuit. 

“There is an unbelievable degree of hypocrisy when a state that holds itself out as being deeply concerned with protecting ‘parents’ rights’ strips parents of their right to ensure their children receive appropriate medical care,” Chriss said.

“Our daughter is a happy, confident child but denying her access to the medical care recommended by her doctors would completely disrupt her life,” one parent-plaintiff said in the press release. “I’m devastated by what this will mean for her physical and mental health.”

The healthcare ban is among a bevy of anti-LGBTQ laws passed by Florida Gov. Ron DeSantis and his conservative allies in the state legislature. Other examples include last year’s “Don’t Say Gay” law, which bars classroom discussion about sexual orientation and gender identity, and the 2021 law that prohibits transgender women and girls from participating in school sports.

The ACLU is tracking 10 anti-LGBTQ bills under consideration by Florida lawmakers during this legislative session. Among these is a proposal that would allow the state to take children from their parents for facilitating access to gender affirming healthcare and require courts to “vacate, stay, or modify the child custody determination to the extent necessary to protect the child from the provision of such prescriptions or procedures.”

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Congress

Ritchie Torres speaks about mental health struggles

Openly gay N.Y. congressman appeared on ‘GMA3’

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U.S. Rep. Ritchie Torres (D-N.Y.) (Screen capture via GMA3 Twitter video)

New York Congressman Ritchie Torres has spoken out about his struggle with depression and the importance of mental health in the wake of U.S. Sen. John Fetterman (D-Pa.)’s recent hospitalization for clinical depression. 

Torres, a Democrat who is the first openly gay Afro-Latino member of Congress, told “GMA3” hosts DeMarco Morgan and Eva Pilgrim on Tuesday that he had “an obligation to tell” his “story in the hopes of breaking the shame and silence, and stigma that too often surrounds the subject of mental health.”

Torres views his coming to terms with his mental health issues — while also being open about it — as a form of “public service” to the American people. 

“We live in a society that historically has shamed people for experiencing mental illness, that has framed mental illness as a failure of character or a failure of willpower. And I’m here to send a message that mental illness is nothing of which to be ashamed, that there are millions of Americans who struggle with depression and anxiety,” Torres explained. 

Even before being elected to Congress, Torres, 34, spoke freely about his past experiences concerning mental health issues and how they affected him. While campaigning, one of his opponents tried to use his depression as a counterpoint to prove that he was not worthy of being in public office. 

From then on, Torres vowed to “never again would I allow my mental health to be weaponized,” he told Time magazine

He emphasized the importance of psychotherapy and medication as a means of controlling his depressive episodes and going through his day by day as a congressman.

He noted, however, that “there are people who have trouble accessing mental health care.” 

“And even if you do, the process of experimenting with psychiatric medications can be draining and debilitating, because there’s no one size fits all,” he added. 

Torres said he hopes that Congress can pave the way for more mental health care for the millions of Americans who need it.

“Our healthcare system is fundamentally broken and Congress is no closer to fixing it,” he argued. 

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