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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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4 years ago

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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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2026 Midterm Elections

Meet the LGBTQ candidates running for U.S. House, Senate

Pappas would become first out gay man elected to upper chamber

Published

5 days ago

on

September 30, 2026

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U.S. Rep. Chris Pappas would become the first openly gay male U.S. senator if he wins in November. (Blade photo by Michael Key)

The midterm elections are often seen as a report card for the party in power, giving voters an opportunity to weigh in on the direction of the country after two years of unified control of the federal government. With Republicans controlling the White House, Congress and the Supreme Court, the 2026 elections could reshape the balance of power in Washington and determine what the next two years of federal policy will look like.

Among the candidates looking to shape that future are a large number of openly LGBTQ politicians running for federal office. All of the candidates listed below openly identify as members of the LGBTQ community and are running as Democrats, seeking seats in both the U.S. House of Representatives and the U.S. Senate. (See below for a list of LGBTQ incumbents.)

The New Candidates

U.S. Senate:

Chris Pappas — NH

The United States House of Representatives:

Cait Conley — NY-17

Jeremy Moss — MI-11

JoAnna Mendoza — AZ-06 

Marni von Wilpert — CA-48

Scott Wiener — CA-11

Chris Gallant — NY-1

JD Ford — IN-5

Janelle Sarauw — U.S. Virgin Islands

If all of these candidates running for federal office win their seats, this would make the federal government the queerest legislative term for Congress ever. 

Chris Pappas would become the first openly gay male senator if he wins the race against Republican John E. Sununu. Pappas is currently leading early polls 50% to Sununu’s 42%, and is seen as a fairly centrist Democrat with a slew of accomplishments passed through the House since his election in 2018 that make him a desired candidate for the purple “Granite State.”

Cait Conley is fighting to take two-term incumbent Republican Mike Lawler’s seat for New York’s 17th district, covering parts of Westchester, Rockland, Putnam and Dutchess counties. Conley has a long history of working as a public servant through her extensive military service, which includes six overseas deployments with the Army and work with the National Security Council. Current polling shows she has an advantage over her opponent, 64% to his 36%, making this one a race to watch. 

Jeremy Moss is running for election in Michigan, after quickly rising in the ranks within the Great Lake state. Moss, who was elected to his city’s city council, then to the state House, then to state Senate has had a lengthy connection with state politics for someone so young. He also served as the state’s first gay president pro tempore. He is running in the Detroit suburbs, including Oakland County. Nearly all polling puts Moss in the lead with some already giving him 99%.

JoAnna Mendoza is a veteran of the U.S. Navy and U.S. Marine Corps running for a House seat for the Tucson and southeastern Arizona area. She has been outspoken about how the cost of everyday necessities under the current leadership of President Trump and Republicans in Congress has made people in her state less safe. She is currently locked in a tight race with her Republican counterpart, leading Juan Ciscomani 47% to 45%.

Marni von Wilpert is running to represent northern San Diego County. She has experience representing the area as a San Diego City Council member, former prosecutor, and Obama workers’ rights attorney. Von Wilpert holds a narrow lead over Republican Jim Desmond, 45% to 42%.

Scott Wiener is looking for a chance to take former House Speaker Nancy Pelosi’s seat in the San Francisco area. Weiner holds a narrow lead over the Pelosi-endorsed San Francisco supervisor Connie Chan. A New York Times poll has him leading 45% to Chang’s 40%.

Chris Gallant has a slew of federal accomplishments under his belt, from working as an FAA air traffic controller to serving in the U.S. Army and New York Army National Guard, including as a Black Hawk helicopter pilot, and is a volunteer firefighter on Long Island. Despite all of this dedication to public service, he’s running in a solidly red district with recent predictions favor LaLota 81 to 26.

JD Ford is fighting to represent the northern Indianapolis suburbs and north-central Indiana against Republican incumbent Victoria Spartz. He was the first and only openly LGBTQ person elected to the Indiana Legislature, running his campaign on making living more affordable. Polling puts him slightly behind Spartz 48% to 46%.

Janelle Sarauw is trying to win the U.S. Virgin Island’s seat in the U.S. Congress. While there is no voting power, the seat can participate in debates. Sarauw is likely to win the seat after sweeping the primary earlier this year, and will face off against Shelley Moorhead, an independent, in November. 

The Incumbents

Becca Balint — VT-At Large

Emily Randall — WA-06

Eric Sorensen — IL-17

Mark Pocan — WI-02

Mark Takano — CA-39

Ritchie Torres — NY-15

Robert Garcia — CA-42

Sarah McBride — DE

Sharice Davids — KS-03

Becca Balint is running for reelection to represent all of Vermont, making her one of the few candidates on this list who represents an entire state rather than a congressional district. Balint, a former teacher and Vermont state senator, has made housing affordability, mental health, and protecting democracy central parts of her platform. Recent polling gives Balint a substantial lead over Republican challenger Gerald Malloy, 60% to Gerald’s 30%.

Emily Randall is running for reelection in Washington’s 6th Congressional District, which includes the Olympic Peninsula and parts of the Kitsap Peninsula across Puget Sound from Seattle. Randall, who previously served in the Washington state Senate, has made expanding access to affordable health care a major part of her platform. She appears to be in a relatively strong position for reelection where she won 60% of the vote in Washington’s August top-two primary, while her Republican opponent Teresa Fox received about 25%. 

Eric Sorensen is running for another term representing western Illinois. The former television meteorologist has centered his congressional work on lowering costs for working families. There is no public polling in the race, but a current nonpartisan forecast gives Sorensen 59% of the vote compared to Republican Dillan Vancil, with 40%.

Mark Pocan is seeking to continue representing Madison and south-central Wisconsin. Pocan, who has served in Congress since 2013, has focused on issues including health care affordability, workers’ rights and LGBTQ+ equality. There is no public polling of the race, but the current field has no Republican candidate, and a nonpartisan forecast gives Pocan more than a 99% modeled chance of winning.

Mark Takano is running for reelection in California’s 39th congressional district, which includes Riverside and portions of the Inland Empire east of Los Angeles. Takano has made health care and veterans’ issues major parts of his congressional work. There is no public polling of the race, but in his primary he came in first with 61% of the vote compared to Republican Steve Manos’s 39%.

Ritchie Torres is running for another term representing New York’s 15th congressional district in the Bronx. Torres, who previously served on the New York City Council, has made housing, economic development, education, and public safety major parts of his platform. There is no current public polling of the race, but multiple prediction sites have it squarely his to win.

Robert Garcia is seeking another term representing California’s 42nd congressional district, which includes Long Beach and southeastern Los Angeles County. Garcia, the former mayor of Long Beach, has focused on issues including infrastructure, transportation, education, and LGBTQ+ rights while in Congress. There is no public polling of the race, but forecasting has Garcia winning the seat over Republican Brian Burley 99% to 1%.

Sarah McBride, is running for reelection to represent Delaware’s sole congressional district, meaning she represents the entire state. McBride, who made history as the first openly transgender member of Congress, has centered her campaign on lowering health care costs, protecting reproductive health care, and strengthening workers’ rights. There is no public polling of the general election, but a current nonpartisan forecast gives McBride a 99.1% modeled chance of winning against Republican Joseph Arminio.

Sharice Davids is seeking another term representing Kansas’ 3rd Congressional District, which covers the Kansas side of the Kansas City metropolitan area. Davids, a former White House fellow and attorney, has made agriculture, lowering costs, and health care central parts of her platform. There is no current public polling of the race, but prediction polling shows she has a 94% chance of winning her race.

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White House

Trump-appointed judge restores White House TV pool access 

Judge called in to question president’s justification of the ban

Published

2 weeks ago

on

September 24, 2026

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CNN's TV booth sat dark on Sept. 21, 2026. (Washington Blade photo by Joe Reberkenny)

A federal judge ordered the White House to restore West Wing press credentials to three news organizations after President Donald Trump attempted to bar their access for unfavorable reporting.

Early Thursday morning, Trump-appointed U.S. District Judge Timothy Kelly granted a temporary restraining order brought by POLITICO, CNN, and MS NOW as part of a joint lawsuit. The lawsuit cites the imperative role of a “free press” and ordered the 78 journalists’ credentials returned to the three outlets for at least the next two weeks as litigation plays out.

In the eight-page ruling, the judge goes over a slew of laws that Trump may have violated in banning the three media groups — from stepping on their First Amendment rights to a free press to the Fifth Amendment right to due process.

The judge also questioned Trump’s justification for removing the outlets, originally saying it was a matter of national security.

“The court is skeptical — at least on this record — that defendants’ interest in safeguarding national security is the actual motivation for, or is even advanced by, the revocation of plaintiffs’ hard passes,” Kelly wrote in an 8-page ruling issued just before 1 a.m. ET.

“Nothing in the record that predates this suit suggests that the revocation of plaintiffs’ hard passes was motivated by national security concerns. Certainly, that is not what President Trump said when he announced that he was ‘banning’ plaintiffs from the White House — instead, he focused on the alleged lack of truthfulness and negativity of plaintiffs’ reporting,” the judge added.

The Washington Blade reached out to the White House press office asking if the administration would file an appeal to keep the journalists out of the West Wing but did not hear back before publication time.

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White House

White House press pool pushes back after Trump bars three outlets

As President Trump refuses entry to outlets he deems unreasonable, lawsuits have been filed to regain access to the West Wing

Published

2 weeks ago

on

September 21, 2026

By

(Washington Blade photo by Joe Reberkenny)

Past the first checkpoint to get into the White House, multiple carts filled with camera equipment sat along a fence. Wagons loaded with tripods, cables, mics, and cameras sat just past where they normally would be working at full power. Today, they were turned off and packed away.

Last week, President Donald Trump decided to bar CNN, MS NOW and POLITICO from the White House following reporting he considers “FAKE NEWS.”

Trump, in a post on Truth Social on Monday morning, described his move as “instituting an assault on the FAKE NEWS,” which he said has “grown like Cancer in our beloved United States of America.”

“It is corrupt, purposeful, pervasive, fully coordinated, and totally out of control,” he wrote on the social media site he owns. “It is a threat to our National Security, and must be stopped, NOW!”

As a result, all of the major television networks that comprise the television press pool — ABC, CBS, NBC, CNN, and Fox News — suspended their White House TV pool coverage. They decided to no longer send camera crews to cover President Donald Trump’s events.

“The public has a vital interest in receiving accurate, independent information about its government,” the five White House TV pool networks said in a joint statement Monday. “No administration should restrict a news organization because it objects to its reporting.”

POLITICO, CNN and MS NOW filed a lawsuit Monday to immediately restore access for their reporters, who had their credentials confiscated by the Secret Service.

In the White House, there was a noticeable shift in the atmosphere. The Washington Blade is the only LGBTQ news outlet that is part of the White House Press Pool, and was acting as the primary print pooler as the situation unfolded on Monday. 

Whispers about who might be kicked from the press pool next could be heard both in the press area of the West Wing, as well as outside the part of the White House dedicated to filming the president’s office. The area where TV stations normally film their live shots of the White House while reporting looked less busy than a normal Monday — especially as the president made his way to New York City ahead of the UN General Assembly meeting this week.

(Washington Blade photo by Joe Reberkenny)

CNN’s outdoor filming area, which is staffed nearly at all times, sat dark with a green cover over the space that normally houses its cameras and political reporters like Kaitlan Collins.

There were small signs of solidarity from other outlets in the press office. A sign that has hung outside one of the news offices in the West Wing was updated. It originally read, “WE STAND WITH AP” following President Trump’s first attempt at removing a news outlet he deemed unfavorable. It now includes “I STAND WITH AP CNN MSNOW POLITICO.”

The change could also be felt as the press pool attempted to cover the president.

There was a ribbon cutting in honor of the $6 million helipad installed at Trump’s behest — which had nearly no audio as a result of fewer microphones in the space following the outlets’ removal on Monday afternoon, and partly because of the loud sound of Marine One.

Vice President JD Vance defended Trump when asked about the changes to TV access at the White House, standing with the president despite this likely being a violation of the First Amendment’s guarantee of a free and fair press.

“He’s not banning media outlets. What he’s doing is saying we’re not going to give you special access to the White House if you engage in what is effectively propaganda,” Vance said, alleging that 92% of the stories from CNN, MS NOW and Politico about Trump are “negative.”

“That’s not representative of the American people. It’s not representative of public opinion,” Vance said.

He pushed back on the notion that this is a hindrance on free speech — claiming access to the president through White House visitation is a privilege — a privilege that in this administration, at least until courts weigh in, could change the landscape of the American media system.

“It’s about basic fairness. They can still report. They still have the access to free speech. They’re just not going to get an office in the White House anymore,” Vance said.

Jacqui Heinrich, the White House Correspondents Association President condemned the president’s actions in restricting media access in a statement sent to WHCA members on Saturday.

“Today’s action revoking access for journalists from CNN, POLITICO, and MSNOW violates the First Amendment. The implications extend beyond these organizations: a standard used to exclude one news outlet because of its coverage could be applied to any outlet in the future.

“The American people, through a free and independent press, must be able to scrutinize those elected to power, regardless of whether government officials view it favorably. That’s why courts have repeatedly held that once the White House provides access to journalists, it cannot deny that access arbitrarily or based on the content of their reporting. The WHCA calls on the administration to immediately restore our colleagues’ access.”

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