The Florida state government’s attack on bloggers

Another unexpected subject, yeah, but I do write about writing online here on occasion. This subject affects every writer, after all, whether they address political issues or not. And given that this is also a legal issue, I can address it from a professional perspective as a lawyer (though admittedly not a Florida lawyer.)

The Florida Senate chamber (source.) I remember visiting my state capitol building when I was a kid, back when I didn’t realize government was 99% dirty grifting. Still better than the alternatives, though.

Here’s the story if you haven’t heard yet. Ron DeSantis, governor of Florida, is backing a bill recently introduced in the Florida Senate, SB 1316. Said bill contains a few parts, but the only one we’re concerned with is the recently added Section 3, titled “Blogger registration and reporting” (and a red flag has already been raised.) This is an amendment to the Florida state code, adding a Section 286.31. It starts out with a long list of definitions, but subsection 2 is where the hammer comes down. Quoted in full:

(2) If a blogger posts to a blog about an elected state officer and receives, or will receive, compensation for that post, the blogger must register with the appropriate office, as identified in paragraph (1)(f), within 5 days after the first post by the blogger which mentions an elected state officer.

Section 3 continues on with details about fines to be paid by bloggers who fail to register and the information that must be provided — who paid the blogger, how much accurate to the nearest $10, a link to the blog post in question, articles on newspapers’ websites being exempt, etc. The full searchable text of the bill is here — read it for yourself.

You might be wondering whether this could possibly be constitutional. It absolutely isn’t, not by any stretch of the imagination. While it’s being framed by supporters as a way to hold special interest-influenced writers accountable for their statements and to fight against libel (which in itself wouldn’t even be close to enough to overcome its constitutionality issue) the actual wording of the bill as currently written is exceedingly broad, potentially roping in anyone who monetizes their blog with Google AdSense or some other pay-per-click advertisement program. Not exactly getting $5,000 in unmarked bills from a foreign agent packed in a brown envelope to write vicious lies about good pure American officials, which I think is the image DeSantis and co. are trying to get across. It’s more just people like me and perhaps also like you, people who just want to publish their opinions and might want to make a few dollars on the side if possible.

I’d say this was an utterly insane ploy by Gov. DeSantis, except it’s likely calculated — everyone knows he has presidential ambitions, and this is very far from the first outrageous act he’s taken as Florida’s governor (see also: shitting on teachers every chance he gets, banning books from school libraries, wedging his political agenda into school curricula, pulling ridiculous stunts in coordination with Gov. Abbott of Texas involving sending migrants, allegedly without notice, up to New York City and Martha’s Vineyard, etc. etc.) DeSantis is a lawyer himself, a graduate of Harvard Law no less. He knows very well that this section of the bill is wildly unconstitutional, a clear violation of both freedom of speech and of the press afforded by the First Amendment. Even the extremely conservative Supreme Court would not uphold this law, were it to become a law (and since the Florida Senate is controlled 28-12 by DeSantis’ party, it seems almost certain to pass in whatever form he wishes.)

But since the good Governor is backing it anyway, we may as well examine in exactly what way and to what extent Section 3 of Florida SB 1316 is a vile piece of shit. This section of the Florida bill violates not just the First Amendment, but even standards of American law whose roots were established over fifty years before the Constitution was ratified. In 1735, the royal governor of New York had a New York City printer, John Peter Zenger, imprisoned for working for a publication critical of the administration and its policies. You can find background and the details of the case here — this New York judicial history society already did an excellent job with that, so I won’t repeat their work. But the gist is that while Crown v. Zenger did not establish a precedent in itself, being more of an early case of jury nullification, it also put royal authorities on notice that they wouldn’t be able to simply have their way with an unfriendly press. And as the case history says, the spirit that led the jury to acquit Zenger also inspired the freedom of the press codified in the First Amendment.

French climber Alain Robert scaling the New York Times building in 2008 (Source: Markus Poessel (Mapos) – Own work, CC BY-SA 3.0 (link.)) It has nothing to do with any of these cases, I just thought it was interesting. See, I’m about as far from professional as you can get.

Of course, we don’t have to reach back into colonial America to look for a precedent against this bill. Here’s New York Times v. Sullivan, a Supreme Court decision from 1964, in which a unanimous Court found in favor of the Times, which had printed an ad in favor of Martin Luther King during one of his stints of imprisonment and was subsequently sued by an Alabama city official for libel. New York Times v. Sullivan is especially relevant here, as it established the heightened standard for a finding of libel against a public official.

Now here’s the counterargument: SB 1316 has nothing to do in itself with holding bloggers liable for making potentially libelous statements against Florida state officials. It merely creates a database of bloggers who write about state politics on a professional basis, or even an amateur one if they make any money for their trouble.

Well, I’m sure the intent of Gov. DeSantis and his friends is absolutely not to create a shit list of politically unfriendly bloggers or to chill public discourse in the state. Why would they possibly want to do that? But my too obvious sarcasm aside, the anonymity of speech is in itself protected, and by a long line of Supreme Court decisions. Once again, someone else has done all the background work for me, so I’ll just link to this page written by someone at Middle Tennessee State University (do they have a law school too? There are really too god damn many of them here, at least four times too many.) The point here is that the protection of anonymity of speech is also beyond debate, and the mere fact that a writer is being paid to write about public officials and their policies has no bearing on that analysis.

Gov. DeSantis is not an idiot. He seems to be a lot of things, but an idiot is certainly not one of them. The framing of SB 1316 looks to be deliberate — I believe it’s framed as addressing a dark money issue. This framing is confirmed by subsection 5 of the offending Section 3, which states that bloggers who refuse to comply with registration are to be treated in the same way as unregistered lobbyists. But I’m also convinced that that’s not its true purpose. Public speech and private lobbying are starkly different. This is an attack not on “special interests” but rather on the public itself and our ability to speak freely on political matters.

Thankfully, since I don’t live in Florida and don’t get paid for what I write here anyway, I don’t have to be concerned with paying any fines if, hypothetically, I were to give certain opinions about an elected Florida state official. For example, suppose I were to write “Ron DeSantis is a little Mussolini,” or “Ron DeSantis is an anal wart,” or something less polite. I wouldn’t have to register with a state office even if I were in Florida as long as I kept my blog completely unmonetized and received no compensation otherwise. But obviously I can’t just say “well, this isn’t my problem.” It is my problem, and it’s yours as well if you’re a blogger in the US, considering the deep and wide-ranging implications of the bill on the incredibly off chance it were to survive a legal challenge (and believe me, it would be challenged as soon as possible if it were to pass in its current form or anything like it.)

Well, I guess I won’t get in any trouble with anyone if I write about anime, music, games, or whatever other escapist entertainment I feel like, so if that’s what you come to this site for, then rest assured that I’ll be getting back to that stuff in the next post. I just couldn’t pass this story by.

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• blogging
• constitutional law
• first amendment
• florida
• government
• law
• politics
• united states
• writing