Today is World Press Freedom Day - Our Democracy Needs to Protect Our Free Press

As Publisher of The Bradenton Times, your local news source for critical information about our government, I need to share with you our concerns about our safety when it comes to publishing local news.

You would not expect that in the United States, a country with the bedrock principle of a free press, we would have to raise the red flag warning that we may be losing this important freedom. Each year, more laws target the press, claiming all sorts of insane reasons to reign in the media. This year, the state considered a proposal that would have made launching and winning defamation lawsuits in Florida easier.

Interestingly, although the legislation initially moved quickly through the legislative process, it stalled after facing immense blowback from influential conservative officials and news outlets. First Amendment and media advocates also accused it of infringing constitutional rights and chilling speech.

Our local concern is that our own Senator Jim Boyd voted in favor of CS/SB 1780, and we were lucky it died in the fiscal committee. Representative Will Robinson was also in favor of the house bill H.B. 757 which passed out of the Justice Committee he serves as Chairman, later dying on the floor. 

There is only one reason to pass increased restrictions on the press, and it is not reckless reporting. Rather, it is the fact that the press is responsible for exposing the deeds of our elected officials, which they do not want published.

At The Bradenton Times, we have concerns for the safety of our reporters and employees. I personally have been the target of some of the county commissioners. So, on World Press Freedom Day, I ask you to recognize the need for a free press. Look past general accusations that the media is out to get your favorite politician. Also, challenge the facts the same way we do as a publication. Please let us know if you ever think our facts are inaccurate. We all try to do the best we can with the facts cited from sources and records, but if you have another version of the facts, by all means, let us know. If we are wrong, we will correct our facts and let our readers know about our correction. 

Most of all, on this World Press Freedom Day, I would like to personally ask you to subscribe to or donate to our efforts if you have not already. Over the last two decades, the press has had to reduce coverage because of the financial challenges that have come with new technologies replacing previous sources of revenue. 

Our community must support the news financially if we are going to have an informed voter base that is less susceptible to the onslaught of political propaganda produced by deep-pocketed special interests. Producing quality journalism is expensive, but if it ceases to exist, our democracy is sure to do the same. We do not force you to pay to read the news like other sites, but we do ask that, at a minimum, you consider our $7 per month or $70 per year voluntary subscription. With this election year, we need more resources.

For more on what Boyd and Robinson wanted to pass, The Reporters Committee for Freedom of the Press published an excellent article worth reading: For second straight year, Florida lawmakers consider bills targeting defamation law. This reporting provides a step-by-step analysis of the proposed legislation. What stopped it was probably the so-called conservatives in Tallahassee realizing how much liability they could face for sending out all those libelous pieces against the other candidate or to deceive the voters on various issues.  

In summary, the reporting states:

The bills proposed amending existing Florida law regarding retraction and correction of published false statements.  The retraction law encourages publishers to retract or correct false statements and discourages plaintiffs from attempting to profit from honest mistakes.

The provision proposed would bar publishers who fail to remove the posting from taking advantage of the fair report privilege once they receive the requisite notice. The fair report privilege protects fair and accurate reporting on official public documents, including judicial records, even if the information itself is false and defamatory. Eliminating fair report protections under these circumstances would encourage suits by people acquitted of crimes over articles about their initial arrests. So too with old articles available online about convictions that were eventually overturned.

Part of the proposed legislation would override the default venue statute in defamation cases, making venue possible in virtually any county within Florida. This would encourage defamation plaintiffs to “shop” for jurisdictions in the state for the one they expect will enable the most favorable outcome. It could also significantly increase the burden on defendants. For instance, a Key West news organization may be forced to drive 13 hours from Key West to Pensacola to defend a defamation suit based on an internet posting.

The legislation would allow a “veracity hearing,” whereby a judge would determine whether a statement at issue in the case is a statement of fact or one of opinion and, if the judge finds that the statement is one of fact, whether the fact is true or false. 

The question of whether a statement is fact or opinion is one of law, but whether a statement is true or false is one of fact. In general, judges are meant to decide questions of law, but questions of fact are for juries to determine.

The legislation would create a rebuttable presumption of actual malice when a publisher “relied on an anonymous source” for a false statement it published. That presumption seems set up to challenge established Supreme Court precedent, placing the burden on public figure and public official plaintiffs to prove a challenged statement was made with actual malice in order to prevail. Presuming actual malice where a defendant relied on an anonymous source would require defendants to present affirmative evidence at the time they published the statement at issue, and this would likely require divulging information about anonymous sources. The bill also did not distinguish between “anonymous” sources, where the source’s identity is unknown to the reporter, and “confidential” sources, where the identity is known but not disclosed.

As a practical matter, the presumption would disincentivize journalists from using confidential or anonymous sources, even when the information they provide can be corroborated through on-the-record reporting. That could impair public interest reporting, especially in cases involving sensitive matters such as national security, law enforcement, or corporate wrongdoing. 

Florida law recognizes the importance of journalists’ confidential and anonymous sources and protects journalists from disclosing “information, including the identity of any source,” except under a narrow set of circumstances. § 90.5015. The proposed legislation would undermine that protection and force media defendants to choose between divulging their sources or refraining from publishing a piece.

The legislation bills would create a cause of action for the use of artificial intelligence to place someone in a “false light.” The false light tort overlaps substantially with the tort of defamation, which, in Florida, includes defamation by implication. Defamation applies to cases involving harm to a person’s reputation in the community, whereas false light is an invasion of privacy tort. This overlap prompted the Florida Supreme Court to refuse to recognize false light causes of action since “conduct that defames will often be highly offensive to a reasonable person, just as conduct that is highly offensive will often result in injury to one’s reputation.” The tort of false light does not create remedies that do not already exist in claims based on defamation or defamation by implication.

Unlike defamation, which “has become subject to numerous restrictions to protect the interest in a free press, courts have noted that the lack of such defined protections for false light unacceptably increases the tension that already exists between free speech constitutional guarantees and tort law. This lack of clarity opens the door for plaintiffs to get around the established defenses of defamation and to bring similar claims in the relatively unprotected area of false light. While some courts will impose restrictions on false light claims similar to those in defamation claims, the imposition of those restrictions means “no useful purpose” would be served by recognizing the separate tort. 

Joe McClash is the publisher of The Bradenton Times. He served as a Manatee County Commissioner from 1990 to 2012.