Florida Libel Bill May Challenge Long-Standing Supreme Court Decision

Florida Libel Bill May Challenge Long-Standing Supreme Court Decision
A libel suit against CNN typifies what average people are up against if they are damaged by a story. Here, people walk by the world headquarters for the Cable News Network (CNN) in Atlanta on March 15, 2022. (Anna Moneymaker/Getty Images)
Dan M. Berger

Zak Young says his business and livelihood were destroyed—and innocent lives endangered—when CNN allegedly trashed him in TV and print stories.

As an elite security operator who had the skills and contacts to extract people from Afghanistan as it fell to the Taliban, Young saw himself savaged as a black marketer seeking to fleece helpless refugees and then not saving them to boot.

None of it was true, Young says in his libel lawsuit complaint against CNN. He says he advertised for corporate sponsors to pay the stiff costs of covert extractions. Some had spent the money and were satisfied: he’d rescued Afghan employees of Bloomberg, Audible, and other multinational companies.

But after CNN’s report, his income plummeted to zero and his rescue pipeline completely shut down, he says in the complaint.

Zak Young has sued CNN for libel, claiming his business rescuing refugees from Afghanistan was destroyed by a CNN story they later had to retract. (Photo courtesy of Zak Young.)
Zak Young has sued CNN for libel, claiming his business rescuing refugees from Afghanistan was destroyed by a CNN story they later had to retract. (Photo courtesy of Zak Young.)

The contacts he’d built over a lifetime in the military and related security work valued his skill and discretion. They didn’t want to do business with someone labeled as a black marketer fleecing helpless and desperate Afghans with exorbitant fees, he says in the complaint.

“CNN (over and over again) stated or falsely implied that Young sold evacuations on a ‘black market’ —by definition and illegal market—when in reality, Young never broke the law and the work he did was fully legal,” the legal complaint states. “CNN also repeatedly stated or falsely implied that Young was exploiting desperate Afghans—when in reality, Young never sold his services to Afghans and targeted corporate sponsors.”

CNN’s attorney, Deanna K. Shullman of Shullman Fugate PLLC in West Palm Beach, did not respond to emailed requests for comment from The Epoch Times.

Libel cases like Young’s—currently before a Florida judge—would be affected by a Florida bill filed by Rep. Alex Andrade. If passed, the bill would broaden protections for the subjects of news coverage, said Young’s lawyer, Devin “Vel” Freedman, of Freedman Normand Friedland LLP in Miami.

The current standard for libel was set in the Warren-era decision of The New York Times Co. vs. Sullivan in 1964. Most notably, it holds that to win a libel case, a plaintiff must show not only that the defendant published information that was false and defamatory but that it did so with “actual malice.” That meant the publisher either knew the information was false or published with a “reckless disregard” for whether it was true or not.
Devin "Vel" Freedman of Miami, attorney for libel plaintiff Zak Young. (Photo courtesy of Zak Young.)
Devin "Vel" Freedman of Miami, attorney for libel plaintiff Zak Young. (Photo courtesy of Zak Young.)
“The cornerstone of U.S. defamation law is the ... ruling, known as Times v. Sullivan, which with its progeny makes it practically impossible for people in the public eye to sue news media for libel, even when they are maligned by harmful falsehoods,” Edward Wasserman wrote in The American Prospect on Aug. 23, 2021.
“The harm worked by The New York Times libel standard is considerable. The doctrine strikes at core aims of government according to America’s oldest and most venerable traditions. It erodes equality, undermines the security of rights, and damages the nation’s capacity for genuine self-government,” Carson Holloway wrote in The American Conservative on Sept. 9, 2022.
“The ‘actual malice’ standard allows the press to spread defamatory falsehoods, especially in the political realm, with near impunity,” Holloway wrote. Holloway participated in a round table Florida Gov. Ron DeSantis led on Feb. 7, arguing for the need to reform Times v. Sullivan.

The decision originally applied to “public officials” but was expanded in two 1967 cases to “public figures.”

An actress who accused Bill Cosby of raping her in 1974 while she was touring with her boyfriend Sammy Davis Jr. sued after being called a liar by Cosby’s attorney. But she lost when, deemed to be a “limited purpose public figure,” she failed to meet the malice standard.

This 2019 Supreme Court case was where Justice Clarence Thomas expressed misgivings with Times v. Sullivan in a dissent while concurring with the majority because, he wrote, the prevailing law required it. Another justice, Neil Gorsuch, subsequently questioned Times v. Sullivan in another dissent.
Richard Jewell, the security guard falsely accused of the 1996 Atlanta Olympic bombing, lost his libel suit against the Atlanta Journal-Constitution because he had accepted an interview request from reporters, making him, for purposes of the lawsuit, a public figure.

Defining ‘Malice’ and ‘Public Figure’

The pending Florida bill toughens the language on malice significantly and tightens up who can be deemed a “public figure.”

For purposes of finding that defamation took place, the bill states, the court shall infer actual malice if the defendant fabricated or imagined the allegation, or if the allegation is based entirely on an unverified anonymous report.

The court shall infer malice, the bill states, if the allegation is so inherently implausible that only a reckless person would publish it or there are obvious reasons to doubt its veracity or the accuracy of an informant’s report.

It gets quite specific in telling journalists when they need to doubt what a source is telling them.

“There are obvious reasons to doubt the truth of a report,” the bill states. “[I]f there is sufficient contrary evidence that was known or should have been known to the defendant after a reasonable investigation, or the report is inherently improbable or implausible on its face, or the defendant willfully failed to validate, corroborate or otherwise verify the defamatory allegation.”

Andrade, the bill sponsor and a lawyer who has worked on libel cases, told The Epoch Times he didn’t know of any other state having attempted to define “malice” so specifically in its libel laws.

He said that some fears about the bill are overblown. He said he didn’t think it challenged Times vs. Sullivan head on, but might raise some questions about subsequent rulings, such as those expanding who is a “public figure.”

He also emphasized that existing Florida law, which his bill doesn’t seek to change, protects publishers who promptly correct an error. If the subject of a story gives written notification within five days of an error having been made, and the publisher runs a retraction with an additional 20 days, the publisher’s liability for damages is reduced enough that most plaintiffs won’t go to the cost and trouble of filing a lawsuit, Andrade said.

The bill does not change what can be considered defamatory, Andrade said. “Right now, if you call someone a transphobe, a racist, or a Nazi, those are opinions. And they still will be.”

Accusing someone of discriminatory actions can be the subject of a libel lawsuit, and the law somewhat strengthens a plaintiff’s position here.

According to the bill, allegations that the plaintiff discriminated against someone else based on race, sex, gender identity, or sexual orientation would be considered ‘defamation per se,’ the more serious of two types of defamation defined in the law, Andrade said. That means a plaintiff can sue for punitive damages. With a lesser form of defamation, the plaintiff may have to prove he suffered financially, which can be hard to prove, he said.

Martin Luther King, 1964 (Public Domain)
Martin Luther King, 1964 (Public Domain)
Andrade noted that in the case leading to the Times vs. Sullivan decision, The New York Times had been accused of errors falling into the lesser category. It published that Martin Luther King had been arrested seven times, while it was only four. Something like that, which Andrade called a “technical falsehood,” may or may not have been very damaging to anyone.
The bill also provides that the defendant cannot prove the truth of an allegation of discrimination with respect to sexual orientation or gender identity by citing a plaintiff’s constitutionally protected religious expression or beliefs, or the plaintiff’s scientific beliefs.

Interest from DeSantis

Times vs. Sullivan may be on the mind of Florida Gov. Ron DeSantis, who held a roundtable to discuss libel on Feb. 7. DeSantis included the decision among the issues and suggested legislative action would be forthcoming in the current state legislative session.

After NBC and MSNBC claimed—falsely, according to DeSantis’s office—that he opposed teaching about slavery in the public schools, DeSantis’s office announced that the governor is boycotting the networks until they correct NBC chief foreign affairs correspondent Andrea Mitchell’s statement to that effect.

DeSantis’s spokesman Bryan Griffin, in a post on Twitter, said the legacy media outlets were “maliciously intent” on “deceiving people.” Mitchell appeared to backpedal some, noting in what was labeled a “postscript” that she had been “imprecise” in her language. But Griffin, in a statement to Fox News Digital, rejected what he called her “non-apology apology.”

The state had rejected the College Board’s proposed curriculum for AP African American Studies, objecting to its inclusion of black queer studies and other attempts at indoctrination. The private group changed it as a result.

Libel in the Age of Social Media

The greater power in Andrade’s bill, though, may be for those who would never be considered public figures—private individuals like Young suddenly thrust into the limelight. And the bill takes on some of the significant factors that have made Times v. Sullivan less workable nowadays, with the advent of social media.

The bill makes the current system of assessing attorneys’ fees less onerous for plaintiffs, said Freedman. Damaged parties are often deterred from suing by the current system.

And the bill makes it tougher for publishers to declare someone a “public figure.”

The bill says a person can’t be deemed a public figure merely for defending himself or herself against accusations or granting an interview, as in Richard Jewell’s case. Nor can they be because their image or video went viral online.

If the bill passes, public employees can’t be deemed public figures unless elected or directly appointed by an elected official. So the fellow who drives a garbage truck isn’t a public figure. His department head might be.

Young told The Epoch Times that CNN has yet to seek to declare him a public figure, but that he expected them to try.

Young’s complaint against CNN contains a moment-by-moment description of CNN’s story, noting and showing photos of the chyron, including the words “black market” prominently displayed on the screen underneath Young’s photo, as the narrator spoke.

According to the complaint, Young was contacted in an encrypted text message by CNN reporter Alexander Marquardt, and texted back the next day asking for a detailed list of questions, as well as the facts and assertions they intended to publish about him.

Marquardt texted back that the piece was set to run that day. According to the lawsuit, Young responded by text saying, “some of your facts/assertions (are) not accurate, and if they are published, I will seek legal damages.”

“Marquardt didn’t offer to delay the piece to give Young enough time to respond and simply ran the inaccurate story,” the complaint alleges. “CNN failed to make a reasonable effort to learn the facts from Young or allow Young to supply the true version of events.”

CNN retracted the story and apologized to Young four months later. But by then, his reputation had been damaged, and his business had collapsed, he says in the lawsuit.

“No one in Young’s community will touch him as CNN has turned him into an international pariah,” the lawsuit states. “Young does not have any realistic prospects of ever reviving his career.”

Holloway writes in his article, “In a representative democracy, the people are to set the basic direction of public policy by electing public officials with whom they agree on the major issues confronting the country. To perform this task well, the public needs accurate information about the candidates for public office. In a healthy democracy, the press would strive conscientiously to provide such information.

“It will, however, always be in the narrow interest of partisans—including a partisan press—to influence the outcomes of elections by misrepresenting the positions of candidates on controversial issues and by rendering the character of some candidates odious through defamation. New York Times v. Sullivan in fact encourages such behavior.”