Freedom of Speech v. the ’Free State of Florida’
Ron DeSantis and Florida Republicans are enemies of The First Amendment.
Florida Gov. Ron DeSantis is one of the most popular executives in the country, and a solid (if distant) second place contender for the 2024 Republican presidential nomination. A huge part of his appeal is his eagerness to not just fight culture war battles on behalf of his MAGA base, but to fight dirtier than the enemy.
If you thought the left was endangering “Western civilization” with illiberal culture war tactics in its domination of academia, the news media, and popular culture—well, get a load of the “Free State of Florida,” where Republicans have been seeking to use the force of law and government fiat to impose their will on private companies, independent writers, and public college education.
The “Free State of Florida” has no love for The First Amendment.
Over at The Daily Beast opinion desk this week, we did our best to explain—using the best facts available and the least hyperbole as possible—why they’re doing a bad job of freedoming in the free state of Florida.
In a column titled, “Ron DeSantis’ Anti-Free Speech Crusade Would Cancel Fox News,” I wrote about how the Napoleonic governor and his party’s war on wokeness has “schools across Florida…removing innocuous books because they bump up against certain ’divisive‘ interpretations of gender, sexuality, and racism that could conceivably run afoul of Florida law,” which, of course, has DeSantis crying, “Hoax!”
“The governor and his gaggle of sycophantic right-wing media influencers insist the book bans were only meant to go after the ’porn’ in books like Gender Queer or the ’racism’ in books like How to Be an Antiracist—and that most of the hundreds of other books facing state censorship were mistakenly included in the purge, or deliberately removed by educators to make DeSantis look bad.”
I argued that this miscalculation—and the new GOP bill that would “further narrow the guardrails of acceptable discourse in higher education”—would not be the only “Leopards Ate My Face” moments of DeSantis’ government war on free speech.
Shortly after staging “a recent livestream designed to look like a cable news segment, the Harvard Law grad DeSantis sat before a TV screen reading the word, ’TRUTH,’ at a semi-circle table between guest panelists helping the governor make his case that the government needs to make it easier to sue media outlets for libel, including overturning the 1964 Supreme Court case Sullivan v. New York Times… a state legislator last week introduced yet another bill that would essentially criminalize the use of anonymous sources, and make the ’failure to validate or corroborate the alleged defamatory statement’ meet the standard for actual malice…
“This means mistakes could no longer be made, for any reason. It would mean news outlets would be legally liable to prove (beyond a shadow of a doubt) any fact they disseminated…
“This would be, of course, impossible, and it would mean that the most powerful people in our society would be all but exempt from public criticism. It would mean the death of journalism. Joe Cohn of the non-partisan Foundation for Individual Rights and Expression (FIRE) wrote, ’Passage of this dangerous bill would spell disaster for free speech by constricting the open debate that is critical for a democracy to function.’”
And wouldn’t you know it, on the same week Fox News’ brass and top personalities were fully unmasked in a defamation suit as liars who knew the Big Lie was a total lie and yet willfully spread that lie because they were afraid of Trump and…(tries not to laugh uncontrollably) Newsmax—what did the right-wing network’s lawyers’ choose as their go-to defense against highly credible defamation claims? Sullivan v. New York Times.
“Some legal experts have argued that this case (if decided against Fox News), could actually end up proving that the bar to prove defamation that was set by Sullivan isn’t an impossible one to meet. But surely, without Sullivan, Fox News would already be toast,” I added.
In, “Can We Stop Pretending Ron DeSantis Is for Free Markets?,” the libertarian writer Bonnie Kristian wrote: “A quick read of Gov. Ron DeSantis’ Wall Street Journal op-ed touting his recent elimination of the Walt Disney Co.’s self-governing status might leave you with the impression that the Florida Republican is a stout defender of the free market and the impartial rule of law.”
But, Kristian adds: “…a closer look reveals that freeing Florida’s markets and leveling the legal playing field—as his defenders have framed the change—are not DeSantis’ concern here. By his own account, this isn’t a principled stand against corporatism, nor is his move against Disney primarily an economic project. His ends are explicitly political, and his means create market conditions just as unfair as the old corporatist dispensation he’s undone…
“The new law doesn’t eliminate Disney’s special district. It renames it, and it takes authority to appoint the district’s five-member board of directors away from Disney—and gives it to Ron DeSantis…
“Maybe it’s accurate to say it’s a step away from corporatism, as Disney does seem to have enjoyed an easier path to development than nearby competitors. But it’s not a step toward any clear principle of liberty—the chosen solution wasn’t to give those competitors the same right to self-regulate—nor even toward meaningfully unmaking this weird public-private amalgam which half a century of Disney-Florida relations has birthed. If anything, should the new board successfully use its power of the purse to manipulate Disney programming, the state-corporate link will be stronger than ever.”
Florida-based First Amendment law professors Lili Levi and Lyrissa Lidsky wrote, “Here’s How Florida Could Become the Capital of Weaponized Libel Suits,” in which they argued Florida House Bill 991 “proposes to tinker with almost 60 years of Supreme Court precedent defining First Amendment constraints on state defamation law. Until the Supreme Court’s 1964 decision in New York Times v. Sullivan, state defamation tilted heavily toward plaintiffs, with falsity and damages presumed and no requirement of fault…
“Weaponized defamation actions are censorship, pure and simple. It was true when the Supreme Court decided Sullivan, and it is still true now,” the professors said.
And finally, Florida politics blogger Kartik Krishnaiyer wrote, “Florida’s Anti-Political Blogging Bill Is Just as Crazy as It Sounds,” about a GOP proposal that would require bloggers—specifically writers who write about government officials—to register with the government. That’s right, government-licensed political writers—in a state where you’d probably get slapped upside the head for suggesting that it might not be the most communist dictatorship thing of all time to require gun owners to get a license.
“Florida state Sen. Jason Brodeur filed legislation this week that would effectively force any blogger that writes about Florida Gov. Ron DeSantis, or any member of the Florida Cabinet or Legislature, to file registration paperwork with the state—or face fines,” Krishnaiyer wrote.
“This would effectively force independent journalists to go through a similar process as paid lobbyists—who are retained by corporations and other entities with the specific purpose of influencing lawmaking…
“Florida in 2023 has become a cultural battleground in addition to a laboratory for the GOP to implement a vision of authoritarian government previously unseen in this country—at least since Woodrow Wilson’s crackdown on a free press during World War I. It’s ironic that DeSantis, who fancies himself as a Constitutional scholar and a defender of Federalism, is likely to support something that very clearly will run afoul of the First Amendment.”
Here’s what the non-partisan Foundation for Individual Rights and Expression (FIRE) had to say about Florida Senate Bill 1316:
“This bill is an affront to the First Amendment and our national commitment to freedom of the press. It is difficult to imagine a legislative proposal more fundamentally at odds with our nation’s founding spirit than requiring citizens and journalists to register their publications with the government under pain of fines. John Peter Zenger and James Madison must be rolling in their graves.”
As a bonus, here’s some non-Beast contributions on Florida’s Most. Illiberal. Week. Ever.
Jonathan Chait, New York, on DeSantis’ War on Disney: “First, DeSantis established the principle that he can and will use the power of the state to punish private firms that exercise their First Amendment right to criticize his positions. Now he is promising to continue exerting state power to pressure the firm to produce content that comports with his own ideological agenda.”
At The Bulwark, Cathy Young argued that some anti-DeSantis narratives, “discount the very real problem of left-wing illiberalism and ideological diktat in education, dismissing all complaints about it as either astroturfed right-wing disinformation or misguided centrist panic that plays into the hands of the right. To acknowledge that at least in some cases DeSantis and his imitators are responding to real problems and tapping into valid concerns may complicate the narrative, but it doesn’t mean that the ’anti-woke’ right is fighting the good fight. It just means that the political fights over these issues often pit the proverbial two wrongs against each other—and that the sane middle desperately needs alternatives…
“In some ways, red-state ’anti-woke’ bills are broader and cruder in their attempts at speech regulation: No campus policy against ’discriminatory speech’ has ever tried to kill entire academic programs and majors the way HB 999 would kill critical race scholarship and gender studies. (Here, DeSantis is taking a page from Hungarian Prime Minister Viktor Orbán, the proud champion of ’illiberal democracy’ and the darling of American ’national conservatives,’ who signed a decree effectively banning gender studies programs in Hungarian universities five years ago.)”
I understand, to some people, the left’s illiberal transgressions literally represent the end of “Western” civilization (I suppose “Eastern” civilization will survive, in the MAGA fever brain’s estimation). But I also recall the trope/truism that “the way to fight bad speech is with more speech.”
Similarly, the way to fight censorious, illiberal left-wing cancel culture is not with censorious, illiberal national conservative-driven laws—but with a steadfast, principled defense of free speech.
There’s an opportunity here—for those in the journalism/commentary space that brand themselves as some combination of politically-tribeless/heterodox/rational-centrist/disaffected-liberal/non-Mises libertarian—to stand up and be counted. That means rejecting the hackery of “the AOC left’s wokeness is so crazy that I just had to play footsie with the Viktor Orbán right’s authoritarianism.”
If freedom of speech means anything to you at all, wipe the mush from your mouth and say with a clear voice: “Bad, free state of Florida! Bad!”
One frustrating aspect of this is watching a certain set of libertarians more or less ignore his crackdown on education or, at most, comment on it merely by saying "If we had school choice, this wouldn't be a problem." A lot of that has to do with how much libertarianism has drawn from the right in its recruitment and fundraising over the last decades, and so quite a lot of people in the movement are rather sympathetic to his culture warring. (This is made clearer by the fact that they also tend to talk a lot about the problems of left-wing censoriousness on college campus, and don't just say "school choice.")
Largely agree, of course.
But two quibbles:
— all these policies only apply to taxpayer-funded universities. Surely taxpayers have the right to say “we think it’s harmful to have university departments focused on race and gender, and we refuse to fund them anymore"?
— my understanding is that the bill to require bloggers to report when they get paid to write about public officials never had any backing from DeSantis or GOP power-holders. That it was just a crank bill.