Florida Justices Skeptical of Broader Media Defamation Shield

Florida media companies are unlikely to get broader protections from defamation suits following a lopsided high court argument Wednesday.

The conservative Florida Supreme Court showed open hostility to the state’s statute aimed at protecting people and entities from meritless claims that could chill free expression. The justices are considering a request from the court’s rules committee to expand rights under that law.

The “Strategic Lawsuits Against Public Participation” act, commonly called an “anti-SLAPP” provision in Florida and other states, “doesn’t make sense,” Chief Justice Carlos G. Muñiz said.

“The whole concept, that you’re immune from a meritless suit,” he said. “As a concept the immunity thing just doesn’t seem to fit.”

Anti-SLAPP laws are designed to prohibit claims that interfere with a person’s right to exercise free speech in connection with public issues. The rules committee wants to let defendants of defamation suits immediately appeal orders denying their motions to dismiss. In some parts of the state—there’s currently a split on the issue—defendants would have to go through the allegedly meritless litigation and wait months or years to appeal the final judgment.

“Forcing defendants to wait until the end of a factual inquiry renders those protections illusory because they have been chilled for the entire duration of that litigation,” W. Aaron Daniel, lawyer for the rules committee and partner at Miami-based Kula & Associates PA, said.

The petition argues that the proposed change is needed to further the legislature’s intent to ensure the speedy resolution of cases retaliating against protected speech.

Daniel was peppered with questions from several justices who found the statute confusing. The justices said that witnesses or a trial may be needed to determine whether the claims should be dismissed. They also pointed out that many issues about the law remain unresolved in cases before the courts of appeals and the Florida Supreme Court.

The law’s opponent, California entertainment lawyer Dilan Esper of Harder Stonerock LLP, received no hard questions from the bench. He said that a rule change could give media companies “two bites at the apple” by appealing losses on motions to dismiss and motions for summary judgment immediately to appeals courts.

Esper warned that this benefit would encourage more defendants to claim they’re protected by the statute.

“Any defendant can style their claim as an anti-SLAPP motion. What stops them? Certainly in any case that involves any spoken or written words a defendant can argue those words are protected by the First Amendment, therefore it’s an anti-SLAPP motion, therefore I should get immediate appeal,” he said.

The case is In re Amendments to Florida Rule of Appellate Procedure 9.130, Fla., No. SC22-1084, oral argument held 4/5/23.