Note: This is an unedited rush transcript. Please check any quotations against the audio recording.
Nico Perrino: All right. Welcome back to So to Speak, the free speech podcast, where, every other week, we take an uncensored look at the world of free expression through personal stories and candid conversations. I am, as always, your host, Nico Perrino. I’m joined today by three of my FIRE colleagues.
We’re going to try and cover everything that’s been going on in the State of Florida in recent months. As those who pay attention to FIRE’s website and our social media feeds know, there have been a number of bills introduced into the state legislature, actions taken by law enforcement that have captured not only our attention but also national headlines. And so, I figured it’s probably about time we do a what’s going on in Florida podcast.
So, to join me in discussing what is going on in Florida I have Joe Cohn, a repeat on the show. Joe is, of course, the legislative and policy director here at FIRE. I also have Aaron Terr, who is the director of public advocacy, and Adam Steinbaugh, an attorney in our litigation department. Gentlemen, welcome back onto the show all of you.
Aaron Terr: Thank you.
Nico Perrino: So, Adam, I wanna start with you because on March 16th we got an update in FIRE’s challenge to the Stop WOKE Act. This is an act that passed into law, of course, that we’ve covered previously on the show, but if you could give our listeners a reminder of what the lawsuit is about and what this action that the court – or the ruling that the court handed down on March 16th was all about.
Adam Steinbaugh: Well, I appreciate your vote of confidence in my ability to convey civil procedure to our listeners at the start of the show and not put everyone to sleep. But if you are operating heavy machinery, you might wanna pull over to the side of the road. I will try and keep it entertaining.
So, FIRE sued over the Stop WOKE Act – the application of the Stop WOKE Act to higher education, and we won an injunction in the federal district court, which ruled that the state universities can’t enforce the Stop WOKE Act against public university faculty members.
The state has since gone to the 11th Circuit Court of Appeals and is doing two things there. 1.) They want the court, the 11th Circuit, to overrule the district court and reinstate the act. But in the meantime, they want to be able to enforce the law even while the court is considering the merits of the law. And so, they have asked the – or they had asked the 11th Circuit to stay the injunction, meaning allow them to start enforcing the law again, and the 11th Circuit issued a very brisk order saying, “No. We’re going to keep the injunction in place while this appeal is pending.”
So, that’s not a ruling on the merits. It could be a recognition by the court that the State of Florida has not shown that there was an urgent need to enforce the law right now. Or the court may have considered the merits and thought that the state is not likely to succeed on the merits here. We really don’t know from the text of the order yet. And it’s somewhat difficult to read tea leaves here.
Nico Perrino: Yeah. Can you remind our listeners what the Stop WOKE Act did as it applied to higher education, right? It restricts instructions on eight concepts related to race, sex, color, national origin, for example.
Adam Steinbaugh: Sure. It established sort of a blacklist of eight concepts that if a faculty member speaking to students sitting in a university classroom, by and large adults who are there voluntarily, if a faculty member endorses any of these concepts – for example, if they say, “I think affirmative action is a good policy,” the state considers that to be de facto harassment. And that violates the First Amendment rights of faculty because if you’re a faculty member and you’ve been hired to teach a class on a given subject, you need to have the leeway and the breathing room to discuss all views about that concept or that matter.
Nico Perrino: Yeah. Well, as a matter of first principles here, I think it’s important to kind of walk our listeners through a reminder of the special role that colleges and universities play in American society, but also the unique freedoms that college faculty members have that perhaps teachers in a compulsory K through 12 environment don’t have, right? They have academic freedom, which gives them the freedom to sort of opine, discuss, play devil’s advocacy surrounding these concepts that are trying to be restricted in the Stop WOKE Act.
Adam Steinbaugh: And that’s exactly right. K through 12 and the collegiate environment are different. And they are different because they are accomplishing their goals through different means. In K through 12, teachers are conveying a message or conveying the local community’s values and views about a number of different subjects. And people are gonna disagree about what the right things to be taught are in K through 12 or what should or shouldn’t be taught through K through 12. But it’s different than higher education.
In higher education students are there voluntarily. Nobody has to go to college. The state isn’t forcing you to go to college. And they’re there to select the courses that they want to learn from. And when they’re in those courses they’re supposed to be learning from a variety of perspectives. It’s about entertaining different ideas and coming to your own conclusion about which one is the right idea. It is being taught how to think, not what to think.
And if the state comes in and puts its finger on the scales and starts picking winners and losers about which ideas are the right ones or wrong ones, that forecloses the range of ideas that students can encounter. And that frustrates the university’s purpose because it prevents students from being able to grapple with those ideas, whether or not they agree with them.
Nico Perrino: So, the ruling from the district court came down on November 17th. The court ruled that the act was “positively dystopian.” It said that it officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints. And then it evoked George Orwell to drive home that “If liberty means anything at all, it means the right to tell people what they do not want to hear.” So, this district court ruling was a ruling on the merits of the act, correct?
Adam Steinbaugh: Right.
Joe Cohn: The Stop WOKE Act definitely fetters discussion.
Nico Perrino: Joe is our office pun guy. So, you might hear a few of those here on this podcast. Joe, I wanna turn it over to you then because there was a bill introduced in the Florida State House, Bill 999, that tried to or is trying to expand the Stop WOKE Act in a number of ways, is that not correct?
Joe Cohn: No, that’s right. HB 999 and its Senate counterpart, SB 266, would both take the Stop WOKE Act and double down on the provisions in it that intrude in the classroom. Both of them also target tenure and have a number of other problems, but primarily the House version of the bill – the two are not identical.
The House version has a prohibition on the same concepts that are banned from college classrooms in the Stop WOKE Act from being included in general education courses, but then also has a provision very similar to the Stop WOKE Act that says, “Oh, and you also can’t expend any funds on any activities that include – including teaching or promoting the concept.”
So, arguably it isn’t only cabin to general education classes that would have the ban. So, that’s a very serious problem. The House version unlike the Senate version also lists majors that are just outright banned because of the likelihood that they might teach those concepts.
Nico Perrino: So, it says here – and Adam did a really good write-up of the House bill for FIRE’s website – in limiting what can be taught in general education courses, the measure would prohibit faculty teaching these courses from including material that teaches – that “teaches identity politics,” which the bill defines as “critical race theory,” which the bill does not define. It does not define what critical race theory is.
Is there a meaningful distinction for the purposes of what a state may determine is taught in a college or university environment between a general education course and an elective? Or does it all have the same sort of academic freedom considerations that must be taken seriously?
Joe Cohn: I think there are serious academic freedom considerations regardless of the context. If faculty members are muzzled in any classes, then students are hearing from faculty who can’t give them complete answers, who can’t really explore things where they should naturally be explored. So, the case law doesn’t make a distinction between general education courses and courses that are merely electives.
And one other kinda wrinkle here is even if they were trying to only get at electives, they don’t quite do that with the language in this bill because you can have a general education requirement. Let’s say, for example, it’s a – you must take at least one class in any of the humanities. Well, there might be 300 different classes that could fill that requirement. So, it’s not exactly like a student is forced to take any one of those particular courses in order to satisfy their requirement.
So, in essence, they’re all electives that they need to choose between. So, here, if it’s allowed for credit to be considered a general education course, you can’t have any of these concepts promoted in them. So, that’s a really wide swath of classes that, all of a sudden, are restricted from speaking things because the government has views that they don’t want students to hear.
Nico Perrino: Do both bills, the Senate and the House bill, Joe, prohibit teaching that could suggest that America was anything other than “A new nation based on universal principles stated in the Declaration of Independence?”
Joe Cohn: I’d have to look back at the Senate version to confirm that it’s in both bills. But there are provisions in both bills that are similar that are not binding. They’re kind of the sense of the legislature saying that any material that’s unproven or exploratory is better left for electives and not in general course requirements.
Now, it’s not a – it’s not binding law in that paragraph, or at least it doesn’t appear to be, but it certainly is discouraging and chilling of a lot of speech. I don’t know how you teach any science class if you can’t include anything that’s theoretical. And since the general education requirements do have science components it’s a significant problem that the legislature is sending a clear signal to boards of governors and boards of trustees who do set these things that we don’t want you to allow theoretical unproven content in these general education courses because it’s not unpredictable. It’s easy to predict them to be in lockstep to avoid the ire of the legislature later.
Aaron Terr: I mean that seems to reach a lot of – potentially reach a lot of subjects in sciences and the humanities, right? I mean who’s gonna decide what’s theoretical or unproven or exploratory? I mean I think you could plausibly say almost anything could fit those definitions if you take the broad view that all knowledge is kinda ultimately always provisional, right? And that’s why we have colleges and universities because we’re constantly turning over theories and explanations and trying to arrive at that closer approximation of the truth.
Nico Perrino: Yeah. The language in the bill it said – is “unproven theoretical or exploratory content.” It prohibits that in general education courses at least in the House bill, which includes the theory of gravity perhaps, Einstein’s theory of general relativity. I mean these are things that presumably you would want taught in many general education courses.
Joe Cohn: But also, just when you think about English classes and literature classes, you read literature for a lot of reasons. And sometimes great works include all kinds of themes in them. And how much of – how many pages have to be dedicated towards one of the characters thinking through one of these issues and taking a stance on one of these issues for it to count as promoting it? It’s really unworkable if any institution were to ever do what the legislature is suggesting in the bill.
Nico Perrino: I wanna ask about the provision in HB 999 that would eliminate any major or minor that “engenders beliefs and the concepts defined in the Stop WOKE Act as well as any major or minor in critical race theory, gender studies, or intersectionality or any derivative major or minor of these belief systems.”
I went to Indiana University where the state had essentially said, “Indiana University, you are the liberal arts school. Perdue University, you are the STEM school. Indiana, you’re not gonna have engineering. Perdue, you are gonna have engineering.” How do we think through what a state legislature can do in determining which majors are granted at different universities – different public universities?
Joe Cohn: Yeah. I think that that’s a real challenge, but the way I believe it should be handled is that legislatures can make nonideological decisions. We don’t need another dental school in the state because we already have so many unemployed dentists. That’s not targeting particular views. They can decide to dedicate resources to make sure that we make sure we have a law school in the state.
But once you start getting down the road of deciding which ideas aren’t allowed in college classrooms, they’ve gone off the rails. And when you’re targeting majors because of the ideas that might be discussed in them, as is the case in these bills, plainly on the face of the text of the bills themselves, you’re definitely engaged in viewpoint-based decision-making here, which I think runs afoul of decades of United States Supreme Court precedent that talks about how the First Amendment and academic freedom don’t tolerate laws that cast a pall of orthodoxy over the classroom.
So, it’s not that the government never has any control over picking and choosing between programs, but the way they are doing it here is clearly motivated by politics and that’s a no-no.
I think that the more blatant the political intrusion the less difficult the question becomes. And that’s why you see Stanley Kurtz in National Review agreeing with FIRE on this point saying that the intrusions in terms of what can be taught in the classroom are unconstitutional and despite his agreement with other parts of the bill that deal with trying to reign in some of the administrative abuses that have been seen in the context of diversity equity and inclusion at administrative levels. So, I think it becomes less of a tough call the more blatantly political it becomes.
Nico Perrino: There’s also provision of this bill that you eluded to earlier, Joe, relating to tenure. Tenure is the protection given to some faculty members. It gives them job protection so that they can theoretically pursue controversial research if necessary. So, they have the kind of freedom to write and explore different ideas not subject to the nakedly political considerations that we discussed earlier from state legislatures or maybe those in the college or university administration.
But this bill would require that all faculty hiring be conducted by the board of trustees or an institution’s president, while recognizing that universities may review a faculty member’s tenure at any time with cause, but also authorize the board of trustees to, at the request of the chair, the board chair, review any faculty member’s tenure status. And that language emits the with cause language.
So, it’s effectively an elimination of tenure protections. Or it removes the shared government governance concern – or the shared government’s kind of principles that animated faculty hiring and firing, right?
Joe Cohn: That’s right. The bill, at least HB 99, has two sections dealing with tenure. The first one says with cause that it could be initiated. The second one does not. I’ve spoken to the bill sponsor. He tells me that he thinks that that was an error and he’s willing to revisit that particular aspect of the bill. But we haven’t seen an amendment to clean it up yet.
So, right now, just looking at the text of what would happen in the bill, you have a tenure review that can be initiated without cause. It’s supposed to be analyzed on the backend after it’s been initiated based on criteria that’s set forth in the board of governor’s regulations that deal with post-tenure review that are currently in place, but those can be changed at any time. The board of governors are political appointees as well. So, there’s that element here.
Nico Perrino: The board of governors, they’re different than the trustees of each university?
Joe Cohn: Yes. But you’re looking at a situation where right now in the regulations there’s post-tenure review every five years. And the bill sponsors say that the only thing they want to do on that provision is make sure that if there is specific cause it can be initiated in between those five years. And we’ve talked to them at great length about how if that’s the intent that isn’t what’s in the bill. The bill allows it to be initiated at any time, and the second time it mentions post-tenure review.
So, I’m optimistic that we’ll get that changed before this crosses the finish line, but the bills have a tremendous amount of momentum. The majority party can push through what they want. And remains to be seen if any of the changes will actually be made.
Nico Perrino: Is faculty hiring usually conducted by the board of trustees or an institution’s president? Or is it usually – or at least signed off by them? Do you guys know?
Joe Cohn: I’m no expert on how it works typically.
Nico Perrino: But there is usually some sort of shared governance, right?
Joe Cohn: It’s not. As I hear it from other faculty groups while I was on the ground in Florida, they would tell you that it is extremely counterproductive for them to be cut out of the loop to the extent that they are in this bill because how is the board of trustees to evaluate the expertise of a subject matter person without really including through the hiring process? And they hire hundreds if not thousands of people during a year, and how much energy and resources will it divert from the board of trustees to be reviewing each and every hire beyond just a sign-off?
Nico Perrino: And it’s all hire? It’s not just tenured-track faculty, for example? Do you know?
Joe Cohn: I wanna reread the bill to make sure that I give you a good answer on that.
Aaron Terr: It reminds me though of – you know the Nikole Hannah-Jones case that we had?
Nico Perrino: Yeah. In North Carolina.
Aaron Terr: Yeah. Where there was a decision right at the academic level to hire her with tenure. And then the board of trustees didn’t approve that decision. This is one data point, but I remember in that case that there was talk about how typically it would just be sort of a rubber stamp in those situations where if there was departmental-level approval or approval by the dean that the board of trustees they would have to approve the decision ultimately, but generally they were gonna defer to the decision-making at the academic level.
Nico Perrino: So, Joe, you mentioned that this bill, House bill 999 and the Senate companion, are moving, I’m assuming, through committees and that’s where you were testifying on them. And there doesn’t seem to be any hangup within the legislature so far?
Joe Cohn: Well, like I said, they have the numbers. And there is a view in conservative circles that’s becoming more and more common that higher education administrations are hostile to them. And they’re viewing bills like this as a way to fight back. So, they’re highly motivated to exert their level of control. It’s short-sighted for sure. I think they are not quite appreciating the extent to which these norms and the case law protect the ability of conservative faculty when they’re targeted by administrations.
And it’s either tenure or it’s this First Amendment and academic freedom line of cases that are the line of defense when people are targeted for political reasons and drummed out of the academy. So, they’re looking at punching across a win in a battle, but probably gonna lose the war if their view ever prevailed.
Nico Perrino: Yeah. I think the concern from conservative legislators across the country is that these institutions are captured by the political left and that you need sort of the blunt tool of government to recapture them so to speak, but often you’re running headlong into the First Amendment in doing so.
I wanna move now to off-campus and discuss two additional bills making their way through the Florida state legislature. I wanna talk first about Senate Bill 1316, which, Adam, you wrote about on March 3rd along with FIRE’s legal director, Will Creeley, and you outline what this bill would do. And I’m gonna just quote the piece here.
“The bill would require anyone other than a newspaper journalist who writes online about Florida’s government leaders, that is its governor, lieutenant governor, cabinet officer, or any member of the state legislature. These writers would need to register with the state if they receive any compensation for their post and they must do so within five days and then file a monthly report with state regulators if they write about Florida officials that month. Those who violate the law risk up to $2,500.00 in fines per report.”
Adam, what’s wrong with this?
Adam Steinbaugh: It’s the government creating a list of people that is writing about the government. It doesn’t advance or directly advance any real government interest. It’s not tethered, for example, to elections. And it would mean – the lawmaker sponsoring the bill has sorta tried to walk it back and say, “This is really about electoral politics,” but it would only apply to people who are writing about people who are already in office, not the people who are running for office.
And even if it were just about the people running for office, I don’t know that that accomplishes a real state interest here to require people to go and register with the state if they are writing about elections and somebody pays them. Because not all people who are being paid to write about elections are being paid by someone with skin in the game with the election. That could just be a Google advertisement or Google giving advertising money based on the number of views of a given article.
So, it’s particularly problematic also because some people write anonymously and our culture, our history, embraces the First Amendment right to anonymous speech. Our founding fathers often wrote anonymously while they were shaping the documents that came to shape our system of governance. And, under this law, it would steamroll if it were adopted and it’s not going to pass. But if it were to pass, it would steamroll the ability of people to write online anonymously.
Joe Cohn: One other rationale that supporters of the bill have floated about is that it’s really about grassroots lobbying. And that just doesn’t hold water either because it’s so broad.
Nico Perrino: Well, can you explain what grassroots lobbying is, Joe?
Joe Cohn: Grassroots lobbying is anytime someone tries to persuade others to engage directly with lawmakers on something that is in fact pending. If there’s a bill that’s been introduced and you wanna say, “I support it or oppose it,” reach out to your congressman, your legislator, your governor, your president, whomever it is, that can count as grassroots lobbying. But for somebody to be lobbying something has to be pending. Writing about an elected official after they have done something to criticize them is never lobbying in any form because it’s already happened.
So, that other rationale that we’ve been hearing that is really just trying to regulate people getting – receiving money to try to persuade people to weigh in on laws is just not true. First of all, there are articles that are written just to educate people what’s in laws without taking positions that might stir people to want, on their own, to take action. This is written so broadly, “Any time you talk about an elected official.”
Nico Perrino: Yeah. I mean you would know more about the grassroots lobbying regulations, but writing about a proposed bill, even arguing against it in writing, is not – does not traditionally count as grassroots lobbying. And would it even do so if you were writing about it in a way that says, “Okay. Now you, dear reader, go and write to your congressperson about this.”
Joe Cohn: It could, in some instances, but again, that’s not an issue here in this bill. This bill is nowhere close to that because it – again, it covers any mention of the elected officials at all. And that includes when they’re running for reelection, that includes commenting on what they already did in bills that already passed, it includes nonadvocacy, just describing the bills. Any mention of them at all. Or “We saw them at the park, at the county fair.” Any mention. So, it’s overbreadth is stunning.
Nico Perrino: I mean it would capture – I mean I’m sitting here to record this podcast and prepare. I’m reading from FIRE’s various statements and blog posts about all the different bills in Florida. I mean presumably we would be required to register with the state at risk of fine or punishment for any of these blog posts. Like Adam, you’re not a lobbyist, but you would be required to register with the state because you wrote FIRE’s statement about this bill, right?
Joe Cohn: Yeah. I mean any time we mention the name of the lawmakers involved or dare say the name of the governor, while it’s in the articles it’s covered here, and as Adam really powerfully explained in his various different pieces, it’s a constitutional nonstarter. And to his credit, I think the governor recognized that and said out the gate that it doesn’t have his support.
Adam Steinbaugh: Just to be safe, every time I write about a public official I print it out and send a copy of it to them with my driver’s license just so they’re aware of it.
Joe Cohn: They let you have a driver’s license?
Adam Steinbaugh: Not a real one.
Nico Perrino: The other thing about this, maybe you guys – all three of you are lawyers and I am not one – can educate me about this. Hasn’t the Supreme Court considered a news reporter carve – like newspaper licensing schemes before. Like it has a carve out, anyone other than a newspaper journalist, but wouldn’t that require identifying what a journalist is? And therefore, I mean sort of licensing them as journalists and everyone else, “Hey, you’ve gotta register as a lobbyist,” so to speak?
Joe Cohn: We’re kind of a newer world, where in the past you had mainstream media and not much else. But with the advent of the internet and social media, people – everyday citizens are writing things that other people are actually seeing and consuming. I think that’s largely a great thing. And for lawmakers who are trying to navigate that, they’re grossly overstepping the core First Amendment freedoms that are necessary here. And I’m glad that the Florida legislature does not appear to have any interest in moving this particular proposal forward because, as I said earlier, they have the numbers to ram through whatever they want.
Nico Perrino: Yeah. Well, you mentioned American history, Adam. I don’t think Thomas Paine or the Federalists or anti-Federalists, the great pamphleteers of the American founding – they were essentially the bloggers of their day, right? They didn’t always write for newspapers so to speak. So, it’s dangerous just from like a first principles American history standpoint, right? You’re kind of overturning many of the devices that were used to found this country or restricting them if they were used today.
The last bill I wanna talk about – and Joe, before we move on, you weren’t in Florida to testify on that bill, were you?
Joe Cohn: No. That one’s not gonna get hearings, I don’t think. I think it was dead on arrival.
Nico Perrino: Okay. So, there were hearings on House Bill 999. And then were you in the state to testify on 991, which is the – okay. So, let me lay this one out. This is the other bill that FIRE wrote about on our website on February 21st. It sounds like it’s very much still alive and you were in Florida talking about that.
Our listeners will be familiar with New York Times v. Sullivan by this point. Two podcasts ago we had JT Morris, Matt Schafer, and Floyd Abrams on the show to discuss New York Times v. Sullivan. We talked about how New York Times v. Sullivan stemmed from a case story in the civil rights movement in which civil rights activists published an ad in the New York Times that was critical of a Sheriff’s office in a Southern state and its actions with regard to civil rights demonstrators. It included some factual inaccuracies in that. And they were sued by, I believe, Mr. Sullivan for defamation.
And defamation was a tool used in the south to often try and silence critics of Southern state governments. The cases often went before juries, all-white juries that were very friendly to law enforcement in those states, and huge judgments were awarded to Plaintiffs in defamation cases. So much so that the New York Times restricted its reporting in some of these states just because of the liabilities that came along with a potential inaccuracy, regardless of whether that inaccuracy was purposeful, negligent, or just the sort of inaccuracies that sometimes come when you put a lot of words on a page.
The Supreme Court ultimately ruled that in order for public officials to sue for defamation they would have to prove that the Defendant spoke with actual malice. That is, the Defendant knew his or her words were false or spoke with reckless disregard for the truth. And in subsequent years that standard was expanded to not just apply to public officials, but also public figures, as well as this category of people called “limited purpose public figures.”
So, what House Bill 991 would do if passed into law is it would narrow the list of people who may be deemed public figures, meaning a wider range of commentary on today’s public issues could result in a successful defamation lawsuit.
I’m reading here from Joe’s statement the bill also declares that speech from anonymous sources – we just talked about anonymous sources – will be presumed false and that failure to “verify or corroborate an alleged defamatory statement” will constitute actual malice, which more of the bill proposes awarding costs and attorney’s fees to any Plaintiff who wins a defamation suit, making it even riskier for both everyday citizens and the free press to engage with important issues.
Joe, can you talk a little bit about this one and how it’s moving through the state legislature? It looks like almost two months since it was passed – or since it was introduced. Excuse me.
Joe Cohn: Well, I just got back from Florida yesterday to testify against the Senate version of the bill. Last week I testified against the House version. That they’re doing hearings quickly on both indicates that they’re highly motivated to move the bills forward.
Very serious problems with the bills. In a number of ways, they contradict New York Times v. Sullivan. And many of the cases that follow along the line of New York Times v. Sullivan, like Rosenbloom v. Metromedia, a bunch of others. And one of the key things that the bills would do is would reduce the types of people that are deemed public figures or context where someone is considered a public figure and thus where the higher standard of actual malice would apply if they were to bring a defamation suit. And I know that’s heavy legalese and I’ll try to unpack that in an accessible way.
I know this will shock the listeners here, sometimes people will make claims, including claims about elected officials, that prove untrue when they’re put under scrutiny. They’ll get a fact wrong. I’m gonna slow down for a second just to make it clear. I’m not talking about when they’re wrong about something that was about opinion. There are things that are sometimes verifiable facts and sometimes people get them wrong.
Nico Perrino: Opinion is an absolute defense, right?
Joe Cohn: In defamation you’re not supposed to – people are allowed to have their opinions. But defamation standards are designed to allow people to also be wrong on facts and not create strict liability for – you get a fact wrong in a criticism of a public controversy and now, all of a sudden, you need to defend yourself in a lawsuit ‘til the bitter end, however long the litigation – however expensive the litigation becomes.
So, with respect to talking about public controversies, the Supreme Court sets the actual malice standard, which is a higher standard that shows that you need to have recklessly expressed a falsehood that you knew was a falsehood. And others can dive in if they wanna talk about that standard in greater detail, but that’s the general gist for the laypeople listening.
And the idea is you need to have wiggle room for people to be wrong even on facts if you want to be able to have good debate. Whether it’s about the individual people who are public figures or public controversies that even people who aren’t famous find themselves involved in because the public needs to be able to debate and discuss those – all of those issues with sufficient room for error.
So, the bill takes that standard and says a few things about it. One is if someone is – if the allegation of the defamation is about something unrelated to why that person is a public figure then the actual malice standard doesn’t apply and a lower standard applies.
So, one of the key examples that comes to my mind is one you might all be familiar with which is Donald Trump and Stormy Daniels. When that exchange happened, Donald Trump was not famous because of his interactions with Stormy Daniels. Whether it was because he was famous because he was a presidential candidate or predating that as an investor and a person in reality TV. He was famous for a lot of reasons. But because he wasn’t famous for what happened with Stormy Daniels, the argument under this bill is the negligence standard should apply to that case if he’s suing for defamation to silence any of his critics about that.
Nico Perrino: Oh, interesting. So, I always thought about it breaking down this way, right? So, you have Donald Trump. Let’s say he’s a public official, right? He’s president at this time. For the actions taken pursuant to his official duties, under this bill he’d be considered a public official. But, for example, actions taken that are not pursuant to his duties he’d be considered a public figure. Maybe it’s, I don’t know, his relationships with his business partners. Things like that. I don’t know. And it was the public figure stuff that would get a lower standard under this bill than the actual malice standard, am I right?
Joe Cohn: Sure. But also, things in his private life.
Nico Perrino: But you’re saying it’s more situational, right?
Joe Cohn: Right. They’re making it situational in a way. But, when you’re dealing with elected officials, usually you would want the actual malice standard to apply across the board no matter what because we tend to consider their character to be relevant to their work.
But here, the bill, if you’re just looking at the text, maybe they were trying to accomplish what you were just describing, but the actual text of the bill says you look at the context in which it’s discussed and if it – and if the issue at heart in the defamation case isn’t related to the reason why they are a public official, a lower standard applies. So, therein lies the problem. Even if they were trying to accomplish what you described, they haven’t done so in the text of this law.
But there are other ways that they undermine actual malice as well. For example, they say that if you rely on an anonymous source, that anonymous source is presumed to be false.
Nico Perrino: Then you lose the – yeah. You lose the [inaudible – crosstalk] [00:42:53].
Joe Cohn: That automatically flips the burden. You have to prove the truthfulness as opposed to someone alleging defamation proving the falsity an anonymous source. And then they go on to say that if you refuse to disclose the source then only the negligent standard will apply, not actual malice, in that scenario. So, even if you had 50 corroborating documents, if you refuse to disclose the source, negligence will be the standard.
Nico Perrino: So, that would be the standard, for say, Watergate. The Watergate reporting, right?
Joe Cohn: Yeah. The legislatures in support of the bill would claim that that’s not the case. That’s that not what they intended. That they intended to show us the other corroborating stuff to win the case. And they’ll say that – they say that it’s – they call it the Journalism 101 Bill because they say journalists wanna corroborate their sources anyway even if it’s anonymous.
And I’ve asked. The sponsors will say, and have said in the hearings, “We’ve asked a bunch of journalists and not one of them have said that they would ever publish something where they didn’t find some other corroborating source.” But it’s important to keep in mind the bill doesn’t only talk about journalists. The bill applies to anyone who can be sued for defamation if you rely on any anonymous source.
And I think one thing that they’re not thinking about – there are a few number of things they’re not thinking about, but one of them is political candidates themselves make claims about their opponents. Sometimes they cite studies. They don’t remember the source of that study, but they remember something in the back of their head. They get a stat wrong in an assertion, a fact, and a criticism and they can’t reveal the source of their stat, now a negligence standard applies to the case. Like that’s just one context.
Conservative media. We heard witnesses during the hearings talk about how a lot of conservative talk radio it – the way it operates is to be particularly provocative. They’re opening themselves up to tremendous liability if there are lower standards. And we had one radio station that hosts Conservative Talk Radio say that they might have to cancel those shows because the liability will be just too great.
Nico Perrino: Well, presumably this would get challenged if passed into law, right, Aaron?
Aaron Terr: Oh, yeah. I would think so. Yeah. And by the way, I think that’s a good point that Joe just raised about how – because I think this legislation gets framed as we can’t keep letting the mainstream media or the liberal medial keep getting away with publishing all these lies and ruining people’s reputations and everything, but it’s – but this really it’s not just going to affect the mainstream media. It's going to affect conservative media and it’s gonna affect everyday people, bloggers, people on social media who are criticizing public officials.
So, you really need to zoom out and look at what’s gonna be the impact of this bill more broadly. And, at the end of the day, it’s just not compatible with a vision of this country as a free democracy where people need to have the breathing space to engage in what the Supreme Court called uninhibited robust discussion on public issues.
Because if you know that you’re gonna face the threat of financial ruin for even unwittingly saying something inaccurate, that’s just gonna have a huge chilling effect on public debate. And it might reduce some of the inaccurate statements that get put out there, but it’s also gonna leave a lot of true things unsaid because people are just gonna pull back on public commentary and not gonna take the risk, right? They’re not gonna wanna be dragged into court.
Joe Cohn: And one other thing I think is worth adding is that it’s not always, when you’re thinking about defamation, about who will win at the end of the defamation lawsuit. Part of the reason why you have an actual malice standard that’s so high is so that at the very first stage, at Motions of Dismiss, lawsuits can be tossed. Because even if you thought that you could win at the end of a three-year court battle, what average day citizen wants to run the risk that they’ll have to defend themselves in court for three years? And who? Can everyone afford a lawyer to defend them?
Let’s say you have a winning argument if it’s argued properly. There’s no guarantee you’re gonna have counsel. Now, that’s less of a problem for the professional journalists who work for the New York Times, but this bill isn’t limited to only changing the standards as to them.
Aaron Terr: Right. And on that note, correct me if I’m wrong, Joe, but another thing that these bills do, or at least one of them does, is basically neutralize Florida’s anti-SLAPP law. So, it kinda reverses that too where now if you’re a Plaintiff who’s successful in a defamation suit, you’re awarded attorney’s fees.
Whereas the anti-SLAPP law in many states is passed to provide a mechanism for Defendants in defamation suits to get meritless or frivolous defamation lawsuits dismissed quickly because there’s this phenomenon of wealthy and powerful people using defamation suits as a tool to intimidate their critics into silence.
So, they bring these suits even if they know that they don’t have a chance of ultimately winning in court, but just the prospect of being sued, right, causes a lot of people to just silence themselves and self-censor. So, this bill would effectively dismantle Florida’s anti-SLAPP law and remove that disincentive for people to bring meritless defamation suits.
Joe Cohn: And includes an incentive to do it because you can win attorney’s fees without any risk of having to pay the other side if you’re wrong. It turns an anti-SLAPP law into a SLAPP law in a number of ways. And, in some respects, you might consider that to be one of the most troubling aspects of the bill because it’ll be much easier to challenge in court the changes to the actual malice standard. They’re unlikely to prevail there unless the Supreme Court has a change in heart. I mean there’s so much case law and it’s so obviously unconstitutional under the existing law.
Nico Perrino: Joe, so do you think that this bill is an attempt to get – ultimately get the Supreme Court to revisit New York Times v. Sullivan?
Joe Cohn: I mean I think that you have – you think through the motives of all of the different actors from the governor’s office to the actual sponsors of the bill to the various different lawmakers who vote for it. And in that chain, absolutely, at least some of them actively want to tee up a challenge to New York Times v. Sullivan. I suspect that there are others who might just, on their own, think that New York Times v. Sullivan was too protective and wanna see if there are – the bill sponsor describes it as clarifying some things about the actual malice standard. I think that’s understating what’s happening.
So, I certainly think that the dominant motivation here is to tee up a potential conflict.
Nico Perrino: All right. I wanna move on in the last couple of minutes we have here. We’ve talked about two trends that are not only happening in Florida but happening in conservative legislatures across the country. One is an attempt to restrict the teaching of divisive topics or so-called critical race theory in the higher educational environment. We’ve also talked about attacks from conservative legislatures on the actual malice standard from New York Times v. Sullivan.
But we’re also seeing something that’s at least new to me, or at least that I’ve started noticing in the past couple of months which are efforts to restrict drag performances within the states, either through legislatures or through the use of law enforcement’s power to withhold liquor license or revoke liquor license, using obscenity laws that might be on the book in each state.
And there was an interesting story that broke in December where there was a drag show called “A Drag Queen Christmas” that was set to be hosted at the historic Plaza Live theatre in Orlando. Now, this is a drag show that, I guess, tours across the country around Christmastime. It had toured, Adam, correct me if I’m wrong, I think for eight previous years in the State of Florida or at least a couple of years it had been in the State of Florida.
It's a drag show. So, it features campy skits like Screwdolph the Red-Nippled Man Deer. Some shimmying. Some bare-chested men. A hip thruster too. I’m reading here from the description provided by the Miami Herald. And three minors happened to attend this performance. They appeared to be accompanied by adults. And state law enforcement had attended, I’m assuming at the behest of officials within the state, to see if there had been anything lewd or obscene happening at the performance, for which it might be illegal to have minors in attendance.
What ended up happening is that the state’s Department of Business and Professional Regulation proceeded to file a complaint – and I’m reading here from the Miami Herald – against the nonprofit that runs Plaza Live claiming the venue had illegally exposed children to sexual content. And the complaint, issued on February 3, happens to be my birthday, seeks to strip the small nonprofit theatre of its liquor license as a result of the alleged exposure of minors to sexual content.
Now, Adam, you had actually filed a public records request to, I’m assuming, the department of business and professional regulation, but you can correct me if I’m wrong, to figure out what did they find at their performance that might’ve justified the revocation of the Plaza Live’s liquor license. Which I should note, is essentially a death sentence for a theater like Plaza Live. And your public records request, which was shared with the Miami Herald, ended up being fodder for this very lengthy report that they issued.
So, Adam, can you talk a little bit about what your public records found and what the Miami Herald reported?
Adam Steinbaugh: Sure. So, I actually filed a couple of records requests. The first one was asking for copies of the complaints that they had received about these events because the – one of the officials had sent letters to the organizers or the hosts of these events saying, “Hey, we think that something elicit is going on here. You better knock it off. There have been complaints.”
So, I asked for copies of the complaints, and they responded by sending me a list of tweets from Livs of TikTok and Representative Marjorie Taylor Greene and a number of other people complaining about these events. It wasn’t actually someone writing to the department and saying, “Hey, we’ve got a problem here. I’d like you take action.”
So, then I also asked for copies of the investigative records and the records about the complaint that the department itself filed to go after the liquor licenses. And buried in the middle of the documents that they sent was a report from the undercover officers that had been sent into the venue by the department’s leadership to ascertain what was going on here.
And in that report, the officers dutifully report back that they had seen no elicit conduct during the performance. They said that there were some provocative clothing choices. Like I think they mentioned a bikini or short shorts or something like that. But they didn’t witness any nudity. They didn’t witness any lewd conduct. And they also noted that they had filmed a number or a significant portion of the event on iPhones issued to them by the State of Florida.
So, we also got the videos for that. And the videos are pretty much a stone’s throw away from what you might see during a Superbowl halftime show. Maybe it’s something that parents would choose not to send their children to see or that they would turn off the TV if it were on television. But is it unlawful? I would be shocked if this met obscenity standards.
Nico Perrino: Yeah. So, we’re talking here about Florida’s decency laws, obscenity standards. I mean how do – what are those, right? And what are they as applied to adults? And then what are they as applied to minors? Because it’s my understanding that there are two slightly different standards, none of which appear to be met in this case. But how do we think about those sorts of issues?
Because a lot of what you’re seeing with the restrictions on drag isn’t necessarily an attempt to ban them for consenting adults, it’s an attempt to restrict minor’s access to these shows, even if accompanied by an adult. Now, I should note you can attend an R-rated movie where you’d probably see – where you could see worse material or more indecent material as to minors in some of the shows, but how is drag – so, can you guys help me kind of play through this one a little bit?
Aaron Terr: Yeah. Well, starting with the obscenity standard, it’s – so there was a Supreme Court decision in the ‘70s, Miller v. California, that basically laid out like a three-prong test for determining when speech is obscene. And so, the three elements are first whether the average person applying standards of the community would find that the work, taken as a whole, appeals to the prurient interest. So, kind of like an excessive interest in sex.
And then, the second element is that the work actually – or the speech, the content, the performance, whatever it is, actually depicts in a patently offensive way sexual conduct, right? So, it can’t just be that you’re just kind of dancing around in a skimpy outfit, there actually has to be sexual conduct taking place. And then the third element is, even if you fulfill those two elements, you still have to satisfy the third element which is that the work, taken as a whole, lacks any serious literary, artistic, political, or scientific value.
So, it’s an extremely high bar to find something obscene. And, like you mentioned, there is also – there can be speech that’s not obscene as to adults but can be considered legally obscene as to minors. It’s basically just the same test, but you just throw in the phrase like, “As to minors.” So, the average person would think that the work appeals to the prurient interest as to minors, lacks serious political, artistic, scientific value as to minors. And still a high bar. You still need some kind of depiction of sexual conduct.
And, yeah, I don’t think there’s any evidence that any of these drag shows that the Florida agency is going after for their liquor license, I don’t think there’s any evidence from what we’ve seen that there’s – that this would even approach the bar for obscenity for adults or minors.
Nico Perrino: Yeah. Anything approaching what you might see if you’re a 16-year-old and just scrolling TikTok, for example, right?
Aaron Terr: Right. Right. Or like, I think Adam said before, at the halftime show, right? If you lower that bar too much, then the police can go on stage and arrest Rhianna. And so, there’s a reason that that’s such a strict standard.
Nico Perrino: Or Lenny Bruce as they did in the ‘60s, right?
Joe Cohn: And the bills across the country are not all written the same. And there are a number of different pitfalls that they can have that would make them unconstitutional in a variety of ways.
The two ways that I’m focused on at FIRE, not to say that there aren’t additional ways that they might be unconstitutional, is when they take all drag performances, even when they don’t come anywhere close to the Miller standard of obscenity or the harmful to minors standard to say – just being gender-nonconforming and lip-syncing. No minor can see that.
I mean that would exclude people from – minors from being present for a screening of Mrs. Doubtfire. Or almost any traditional performance of Shakespeare. Or a screening of Tootsie for those of that generation. We’re, in fact, testifying against a bill that would do that in Nebraska tomorrow. And my colleague, our colleague, John Coleman, is testifying for FIRE tomorrow on that.
And the other way is even if it did meet the Miller standards and could be prohibited, regulated, maybe even criminalized, if the law would allow people who are, for lack of a better term, heteronormative to engage in conduct that reaches those standards, but still prevent people who are in drag from doing the same thing, then they are targeting on basis of viewpoint.
So, we’re looking for either of those two problems when we look at bills. What’s complicated here for the public, more for the public than for the lawyers, is that sometimes they’re just adding drag in as a category in an already existing statute where the statute puts in things that try to get at the Miller test already. So, the bill that’s pending only mentions drag that doesn’t reach the level of – but it’s amending it into a statute that already builds in that standard.
So, we have to look at two things, the bill that’s pending and what it’s adding to, before we determine if it has that problem. But a lot of them do.
Nico Perrino: Yeah. I mean and to be clear, there presumably could be drag shows that do meet the obscenity standard as applied to minors, but you need to take that on a case-by-case basis and see if it meets the test. Blanket bans on drag without any considerations as to what the performance entails risks being unconstitutional.
I wanna thank you all for covering this. We did have a lot to cover. I will link all these bills and these lawsuit developments and the stories in the show notes for any of our listeners who want to gather more information about them. But until next time, Joe, Aaron, Adam, thanks again for appearing on the show.
Aaron Terr: Thanks, Nico.
Joe Cohn: Thank you for having me.
Adam Steinbaugh: Thank you.
Nico Perrino: This episode was hosted and produced by me, Nico Perrino, and edited by my colleagues Ella Ross and Aaron Reese.
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