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Floyd Abrams: GOP-backed Fla. bill targeting the press is ‘plainly inconsistent with’ First Amendment

LGBTQ groups have criticized measure

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Republican Florida Gov. Ron DeSantis (Screen capture via YouTube)

A bill by Florida Republicans that would relax the standards required for public officials to sue journalists and media organizations for libel is “plainly inconsistent with the First Amendment” according to the acclaimed attorney and constitutional law expert Floyd Abrams.

“The statute is a frontal attack” on the U.S. Supreme Court’s longstanding interpretation of the principles “governing First Amendment libel law as it currently exists,” Abrams told the Washington Blade by phone on Wednesday.

Abrams has represented parties in litigation before the Supreme Court more than a dozen times in some of the most important and high-profile First Amendment cases brought over the last 50 years, which has led to landmark rulings including on matters governing press freedoms.

Abrams is senior counsel at Cahill Gordon and Reindel, the multinational law firm where he has worked since 1963. He is widely considered among the country’s preeminent litigators and experts in constitutional law and was described by the late diplomat and U.S. Sen. Daniel Patrick Moynihan (D-N.Y.) as “the most significant First Amendment lawyer of our age.”

With this Florida statute, Abrams said it appears Republican Gov. Ron DeSantis and his conservative allies in the legislature are making “an effort to come up with something which will lead the Supreme Court to take another look” at its 1964 ruling in New York Times v. Sullivan, which established that the First Amendment confers certain protections for the press against libel lawsuits by public figures.

The ruling, reaffirmed and developed in subsequent cases over the years, acts as a bulwark preventing powerful public figures including elected officials from weaponizing lawsuits or the threat of litigation to silence or censor reporters and news organizations.  

DeSantis and Florida’s GOP legislators are hardly out of step with leaders in the Republican Party including former President Donald Trump, who repeatedly pledged to change the libel laws so he could more easily sue media companies.

When Sarah Palin, the former governor of Alaska and 2008 vice presidential candidate, sued the New York Times for libel in 2016, the paper wrote that advocates for weakening the press’ protections against libel lawsuits were “more emboldened now than at any point” since the Sullivan case. They have ideological allies in the right-wing legal establishment, too: In 2021, conservative Supreme Court Justices Clarence Thomas and Neil Gorsuch expressed an interest in revisiting the court’s ruling in Sullivan.

Supreme Court unlikely to revisit longstanding approach to First Amendment, libel law

Abrams said if the Florida bill is signed into law, given that “virtually any entity, which reports the news would be imperiled by this statute,” he can envision legal challenges from a variety of entities, from groups like the “ACLU to the Reporters’ Committee [for Freedom of the Press] to organizations of journalists to newspapers.” Litigation over the law’s constitutionality could, of course, reach the Supreme Court.

At the same time, Abrams said he doubts there is much appetite among the justices to abrogate or weaken the decades-old ruling in Sullivan, which stipulates that to bring a successful libel case against the press, public officials must first prove the offending material was defamatory and then show it was published with “actual malice,” either with the knowledge that it was false or with “reckless disregard” for whether it was true.

“I would be very surprised if Chief Justice Roberts is in favor of revisiting New York Times against Sullivan because he has been a strong First Amendment defender,” Abrams said, and based on “Justice Kavanaugh’s opinions when he was on the Court of Appeals, I would be surprised if he is prepared to challenge” Sullivan.

Abrams conceded “there may be more reasons to think that one or more conservative jurists” on the Supreme Court could be convinced to join Thomas and Gorsuch’s calls to reconsider libel protections for the press. Working against this effort, however, is the extent to which the Florida statute is inconsistent from the court’s analysis of the relevant legal questions, Abrams said.

Examples, he said, include: (1) the proposal’s narrowing of the parameters used to define certain plaintiffs as “public figures” for purposes of First Amendment libel law, a distinction that carries a higher burden of proof than that which is required of private citizens suing members of the press; (2) its treatment of information attributed to anonymous sources as presumably false, a finding that plaintiffs claiming defamation would otherwise be required to prove; and (3) its characterization as inherently defamatory any accusations published by the press of discrimination based on race, sex, sexual orientation or gender identity.

The statute’s presumption that material attributed to anonymous sources is false would undermine the method by which the courts evaluate libel claims brought by public figures, Abrams said: “The Supreme Court has certainly made clear that the legal test requires the party suing to demonstrate the newspaper [or] journalist didn’t believe what he or she was saying.”

Put differently, Abrams said, the analysis turns on the defendant’s state of mind “as a basis for determining if the alleged libel of a public figure is actionable.”

Therefore, Abrams said, to “have a flat presumption that any use of confidential sources will be held against the journalist is inconsistent” with the type of claims that might “lead the Supreme Court to take another look at the law” established with Sullivan.

Censoring criticism of anti-LGBTQ discrimination

Likewise with the legislation’s provision that the press’s accusation of discrimination by a public official would constitute prima facie evidence of defamation, Abrams said “The Supreme Court has said more than once, and often in the voice of conservative jurists, that such speech is protected by the First Amendment.”

Florida’s statute goes even further, however. Per the substantial truth doctrine, a defendant accused of defamation can avoid legal liability by showing that the gist of the material at issue in the complaint was true. Under the proposed bill, a journalist who is sued for publishing accusations of discrimination (now considered inherently defamatory) may not cite as evidence of their truth (or substantial truth) the public official’s membership in any religious or scientific organization — even if that organization has a documented pattern and practice of discrimination, or well-known views that are unambiguously sexist, racist or anti-LGBTQ.  

The bill’s apparent effort to censor media coverage of discrimination by public officials raised red flags with LGBTQ groups like GLAAD, whose president, Sarah Kate Ellis said, in a statement shared with the Blade on Wednesday: “Those spewing harmful and inaccurate words do not have the support for their dangerous rhetoric and policies, and they’re rightfully afraid they’ll be held accountable by voters and a free press that accurately reports on efforts to scapegoat and target vulnerable people.”

“This bill is another futile attack on LGBTQ Floridians, a sign of full-blown panic against a rising tide of acceptance for LGBTQ people and for the full equality of women, people of color and queer people of color,” Ellis said.  

Jon Harris Maurer, an attorney who serves as public policy director for Equality Florida, the state’s largest LGBTQ advocacy organization, told the Blade by phone on Thursday that based on the alignment of DeSantis and Republicans in the legislature, chances are the bill will be signed into law.

Maurer said Florida’s Republican lawmakers, with supermajorities in both chambers, “have made clear they are prioritizing Gov. DeSantis’ legislative agenda.” At, or at least near, the top of that agenda is the state’s proposal to weaken libel protections for journalists, Maurer said, noting DeSantis’ decision to convene a recent roundtable discussion on the matter where speakers explained their reasons for wanting the Supreme Court to revisit Sullivan.

Other recent high-priority policy items for DeSantis and his allies have focused on using “the LGBTQ community to score political points with a far-right presidential primary base,” Maurer said. Florida’s governor, state lawmakers, or other officials might find the press coverage of these matters unflattering, Maurer said, but that hardly means the coverage is false or even defamatory.

So, the proposal to relax the standards required for public officials to sue reporters and media organizations for libel “is intended to have a chilling effect on media, particularly media that would be critical of Gov. DeSantis and those who share his positions,” Maurer said.

Maurer agreed with Abrams that the bill’s proponents likely have their sights set on the Supreme Court — and that the proposal, as currently written, is totally inconsistent with the court’s treatment of First Amendment libel law.

If the bill is signed into law and litigation over its constitutionality reaches the Supreme Court, Maurer declined to speculate what the outcome might be. The court’s conservative justices have scrapped longstanding precedent in other recent cases, he said, noting last year’s ruling in Dobbs v. Jackson Women’s Health Organization that revoked the constitutional right to abortion first established in 1973 with Roe v. Wade.

Removing protections for confidentiality of anonymous sources

Particularly in circumstances that raise national security concerns, the U.S. government has sometimes sought to prevent news organizations from publishing sensitive information in their possession or issued subpoenas demanding that journalists reveal the identities of the confidential sources who leaked it to them.

In 1971, Abrams successfully represented the Times before the Supreme Court in a landmark First Amendment case challenging the Nixon administration’s claims of executive authority to suppress the paper’s publication of confidential documents. The court’s ruling allowed the Times and other organizations to publish the material, known as the Pentagon Papers, which revealed the Johnson administration had “systematically lied, not only to the public but also to Congress” about America’s political and military involvement in Vietnam.

The government employee responsible for providing the documents to the Times was charged with espionage, though the charges were later dismissed.

The Supreme Court ruled in the 1972 case Branzburg v. Hayes that the First Amendment does not protect reporters from being called to testify before grand juries, but the government must “convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest.”

The decision was cited by Judge Thomas Hogan of the U.S. District Court for the District of Columbia in his 2004 memorandum opinion rejecting a motion to rescind grand jury subpoenas issued to two reporters, one represented by Abrams, in connection with criminal investigations of leaks that had revealed the identity of covert CIA operative Valerie Plame Wilson (in what became known as the “Plame affair”).

Abrams’ client, who had not published a story about Plame but learned she was working as a covert CIA operative through a confidential government source, served several months in jail for her refusal to reveal his identity as demanded by the subpoena.

Some courts have upheld the concept that journalists have a constitutional right to conceal the identities of their sources, and some states and jurisdictions have codified these rulings with so-called “shield laws,” which vary in the extent of their protections afforded to members of the press.

Florida’s proposed statute, in addition to presuming that published information attributed to anonymous sources is false, would revoke the state’s shield laws that protect journalists’ right to keep their identities confidential.

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2026 Midterm Elections

Ken Paxton wins Texas Republican primary runoff

LGBTQ rights opponent will face Democrat James Talarico in November

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Ken Paxton, gay news, Washington Blade
Texas Attorney General Ken Paxton speaking in 2017. (Washington Blade photo by Michael Key)

Attorney General Ken Paxton won the Republican Senate primary in Texas on Tuesday, ousting incumbent U.S. Sen. John Cornyn.

Paxton won the primary against the four-term incumbent in large part due to President Donald Trump’s endorsement. Despite Cornyn voting with Trump more than 90 percent of the time, political insiders say being supportive isn’t enough to win Trump’s endorsement anymore — Republican candidates need to embrace the full MAGA image, something Paxton has done.

Paxton has served as Texas attorney general since 2015 and, before that, worked as a Texas state representative. He has approached both roles with what LGBTQ activists call a “consistently Anti-LGBTQ+ Record.” Following the landmark U.S. Supreme Court decision in Obergefell v. Hodges — the case that made same-sex marriage the law of the land — Paxton advised Texas county clerks they could refuse marriage licenses to same-sex couples on religious grounds.

His anti-LGBTQ crusade doesn’t stop at fighting against marriage equality.

Paxton has repeatedly demanded medical records for transgender youth in multiple states — including Texas, Georgia, and Washington — in hopes of making the practice illegal. His anti-trans actions go far past medical records. Paxton issued an opinion barring trans Texans from changing the sex on their driver’s licenses and birth certificates, claiming any changes made were “unlawfully altered,” and helped the DOJ reach an agreement with a Texas’s children’s hospital for providing minors gender-affirming care, eventually leading to a 10 million dollar settlement. He also authored a non-legally binding opinion equating gender-affirming healthcare for youth to child abuse.

In addition to his long history of anti-LGBTQ policy in the Lone Star State, Paxton is no stranger to controversy.

Multiple impeachment efforts brought against him in the state House of Representatives for “abuse of office” — with the state Senate later acquitting him — allegations that he used his office to assist large campaign donors, namely Nate Paul, and a widely publicized separation from his wife, state Sen. Angela Paxton, all impacted his run for the U.S. Senate seat — but not enough to keep him from the office.

Lynne Bowman, vice president of campaigns at the Human Rights Campaign, issued a statement following the announcement of Paxton’s primary win.

“Texans have a clear choice this fall, and an opportunity to reject failed policies that hurt all families,” Bowman sent to the Blade via email. “Ken Paxton is so out of step that he has fought to undercut marriage equality and spent time demanding personal medical records for young people who do not even live in Texas, all while becoming the most corrupt politician in America. The more than 2 million Equality Voters in Texas will send him packing.”

Paxton will face off against Democratic hopeful and vocal Trump critic James Talarico in the fall.

Talarico, who won the Democratic primary in April against Congresswoman Jasmine Crockett, has been a vocal supporter of LGBTQ rights, citing his ministry work as the source of his support for the community.

The race for Texas’s Senate seat will be decided on Nov. 3.

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2026 Midterm Elections

Bree Fram’s congressional campaign ends but her fight continues

Former highest-ranking trans military member steps back from Va. congressional race

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Bree Fram (Photo courtesy of Bree Fram)

After being forced to retire, Bree Fram couldn’t stop. Restless even after giving everything she had to make the United States Air Force — and later the Space Force — better in every way she could, Fram quickly turned toward a new mission: public office.

The same tenacity that fueled her rise from Air Force researcher to the highest-ranking openly transgender officer in the United States Armed Forces would eventually carry her onto the campaign trail in Virginia.

Now, after months of campaigning, countless conversations with voters, and abrupt shifts in Virginia’s political landscape, Fram has stepped back from her congressional run.

Fram sat down with the Blade to discuss her decision to step away, what she learned on the campaign trail, and what comes next.

Earlier this month, the Virginia Supreme Court struck down a voter-approved Democratic congressional redistricting plan that likely would have created multiple additional Democratic-leaning seats in the U.S. House. The ruling dramatically altered the district Fram had built her campaign around and left little time for candidates to adjust before voting began.

“That decision really was the end of my campaign, that there was not the chance after that ruling, particularly so late in the game, for me to meaningfully pivot back to a different district and have a conversation with voters with just five weeks to go until early voting started,” Fram said. “I do feel that the will of the people has been ignored over a technicality regarding the date of Election Day.”

For Fram, the ruling was not only politically devastating, but personally frustrating after months spent building relationships with voters and shaping a campaign around the district’s needs.

“What was incredibly disappointing about it was that none of the facts about the case had changed from the beginning of the year until when they made the ruling,” she said.

Still, Fram entered the race with a platform centered on affordability, government accountability, and protecting fundamental rights, pledging “to protect our rights, make opportunity affordable, and build a government that works for the people.”

That message focused heavily on affordability — one of the defining political issues of 2026 — and lowering costs for Virginians across ideological, geographic, and generational divides. Fram said voters responded warmly to that vision, even if it ultimately did not lead to an office in the Rayburn House Office Building on Capitol Hill.

“The experience on the trail was fantastic. As a first-time candidate, you never know what you’re really getting yourself into, but any chance I had to get out there and talk with people was amazing,” Fram said. “I had the opportunity to change folks’ minds about trans people, about people from Northern Virginia.”

One conversation with a rural Virginia voter especially stayed with her.

“I called someone who runs a rural art shop… and he started talking about Democrats messaging on trans issues being such a problem,” Fram recalled. “And I’m like, do you know that you’re talking to one?”

Throughout the campaign, Fram said she often found herself breaking down preconceived notions about both transgender people and military service. The impact of that visibility became especially clear during another interaction on the trail that still stays with her.

“I had a young person, maybe 20 years old, come up to me. I could tell there was something on their mind,” Fram said. “I preempted them by saying ‘If you were about to ask if I’m trans, the answer is yes.’”

The young person, she said, appeared visibly relieved.

“As we made small talk I could tell there was something else he wanted to ask,” Fram continued. “Eventually they got it out– that they think they might be too.”

The moment quickly turned emotional.

“And then I asked, do you need a hug, they leaned in at first and then just hung on for dear life,” she said. “So what it means to our community to have that kind of representation out there, and to hopefully inspire others, was incredibly important.”

For Fram, those moments became some of the most meaningful parts of the campaign.

“My experience, I think, helped just shape what was our strategy,” she said.

The campaign also came at a uniquely difficult moment in Fram’s life. The Human Rights Campaign honored Fram alongside four other transgender military officials during a Jan. 8 event in Washington commemorating the forced retirement of transgender service members following President Donald Trump’s Executive Order 14183, “Prioritizing Military Excellence and Readiness,” which directed the Pentagon to prohibit transgender, nonbinary, and gender-nonconforming people from serving openly in the military.

Even while navigating the fallout from the discriminatory policy that forced her retirement, Fram launched a campaign rooted heavily in direct voter engagement and personal storytelling.

Her decades in the military, she said, fundamentally shaped how she approached campaigning and leadership.

“As an officer, particularly the more senior you become, you get more and more training on ‘what does it mean to match your ends’ ways and means,’” Fram said. “My end goal was get into office … and constantly reassess what it looks like.”

Fram also said her military background informed her progressive politics more than many voters expected.

“My military background was interesting, because I was running as the progressive candidate,” she said. “People think you were in the military, how can you possibly be the progressive person?”

Her answer, she said, often surprised people.

“Well, where did you think I learned this stuff?” Fram said. “No matter who we were at the same rank, no matter what our job was, we all got paid the same. We all had government-provided health care where we never needed to worry about a medical bill.”

For Fram, and those who talked with her on the trail, military service reinforced the idea that good governance allows people to thrive.

“You actually learn a lot about progressive policies and good governance that lets people be their best self in the military,” she said. “We understand that military officers’ oaths don’t expire when their time in uniform does, and I think that resonated with a lot of people, that veterans can be part of the solution in getting us out of the situation that we are in today.”

Before launching her campaign, Fram built one of the most extensive careers of any openly transgender military officer in U.S. history, serving in senior leadership roles across the Air Force, Space Force, and intelligence community.

Most recently, she served as chief of the Requirements Integration Division at Headquarters, Space Force, after previously leading acquisition policy for the Air Force’s space programs. Earlier in her career, she oversaw advanced weapons and cyberspace programs at the Air Force Research Laboratory, managed billions in foreign military sales and intelligence-related operations, worked on Capitol Hill as a legislative fellow, and directed major engineering and national security programs at the National Reconnaissance Office.

Fram also co-led the Department of the Air Force’s LGBTQ+ Initiatives Team and deployed in support of Operation Iraqi Freedom. She holds a master’s degree from the Air Force Institute of Technology and is a distinguished graduate of the Naval War College.

Despite stepping away from the race, Fram said she remains optimistic about the future.

“When I look at the big picture of what we did and how we ran a campaign, that is what I’m most proud of,” she said. “It really is the strategy that my team and I were able to craft, the messaging that we were able to share, that was all about connecting our personal story, the story of America to something that says we need a vision of what can be.”

Fram rejected the idea that ending her congressional campaign means ending her public life altogether.

“I can absolutely guarantee that I will not get off the stage. It is just a question of what stage or stages do I jump to,” she said.

She also encouraged LGBTQ people — especially transgender Americans — to stay politically engaged despite increasingly hostile rhetoric and legislation nationwide.

“Just do it,” Fram said. “It is incredibly important to show at every level that people can engage with the political process and make a meaningful difference.”

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Congress

Eight Democrats break with party as House advances ‘Don’t Say Trans’ bill

Measure not expected to pass in Senate

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(Washington Blade photo by Michael Key)

The U.S. House of Representatives passed a federal “Don’t Say Trans” bill on Wednesday, attempting to force teachers to out transgender students nationwide.

The bill, House Resolution 2616, also called the “Stopping Indoctrination and Protecting Kids Act,” would require schools to get parental consent before allowing students to use their preferred, rather than originally assigned, gender markers, pronouns, or preferred name on any school form, and to use any sex-based accommodations, including locker rooms or bathrooms.

The bill amends Section 8526 of the Elementary and Secondary Education Act of 1965, legislation that allows for federal aid to help elementary and secondary education programs — particularly those under its lowest-income Title I-A program — to stop allocating funds to any education that teaches concepts “related to gender ideology.”

This is directly related to Executive Order 14168, also known as the “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” order, one of President Donald Trump’s first executive orders of his second term. It requires the federal government to recognize only sex assigned at birth and dismiss gender identity rather than sex.

The bill was sponsored by U.S. Rep. Tim Walberg (R-Mich.) and passed by a 217-198 margin. The vote fell mostly along party lines; however, eight Democrats voted for its passage. They were U.S. Reps. Henry Cuellar (D-Texas), Donald Davis (D-N.C.), Cleo Fields (D-La.), Laura Gillen (D-N.Y.), Vicente Gonzalez (D-Texas), Marcy Kaptur (D-Ohio), Marie Gluesenkamp Perez (D-Wash.), and Eugene Vindman (D-Va.).

Proponents of the bill argue a child’s gender identity should be directed by parents at home rather than in public schools.

Critics say this is dangerous and will force students to be outed by their teachers to parents — some of whom may not be supportive of their gender identity — which could lead to violence or possibly conversion therapy.

California Congressman Mark Takano, chair of the Congressional Equality Caucus, spoke on the House floor while the bill was being debated. 

“Republicans claim to be the party of small government, but they have no problem bringing the full force of the federal government down against children. The GOP thinks they can legislate transgender people out of existence with this inhumane Don’t Say Trans bill, but all they’re doing is making life worse for a small minority of already-vulnerable children,” Takano said. “I spent 24 years as an educator where I worked with hundreds of high school students and their parents. Most children go to their parents when they need help or are struggling — including transgender children — but not all parents are accepting. The forced outing provision of this bill puts teachers in an impossible situation by requiring them to out trans kids to their parents in certain situations — even if the teacher knows the student will likely face physical abuse. Students like these are who Republicans want to put in immediate physical danger with this bill.”

The Washington Blade talked to Tyler Hack’s, founder and executive director of the trans advocacy organization and Christopher Street Project PAC, following the bill’s passage.

“Most queer kids go to their families when they are figuring out who they are, and then not all queer kids have that option,” Hack told the Blade. “If this became law, it would harm those already vulnerable kids who rely on school as a safe place and might not have a safe place at home.”

They explained this is not about protecting parents’ rights to know what is going on with their children, but rather the weaponization of trans identity that has become a mainstream Republican ideal pushed by the Trump-Vance administration.

“Young people deserve the space to figure out who they are without the federal government interfering in their lives,” they said. “It is beyond the pale, or rather it should be beyond the pale, and has become a norm for Republicans in Congress to villainize kids, because I mean, this bill targets kids, it’s in the name of the bill, and it’s in the implications.”

Hack continued, saying that amid the rising cost of everyday necessities — from gas to groceries — and while the Trump-Vance administration continues to defund programs intended to help the most vulnerable Americans while creating slush funds for political allies, this is not what Congress should be focusing on.

“At a time when people are really struggling, and politicians need to be focused on lowering costs, they’re using queer and trans kids as political pawns,” Hack said. “They want to divide and conquer this country, and we need to stand up against them and unite behind values of inclusion and of trust in our teachers.”

David Stacy, the Human Rights Campaign’s vice president of government affairs, provided a statement to the Blade.

“Trans kids are not a political agenda — they are students who deserve safety and affirmation at school like anyone else,” Stacy said. “Despite the many pressing issues facing our nation, House Republicans continue their bizarre obsession with trans people. HR 2616 does not protect children. It targets them. This bill is cruel, and we’ll continue to fight to ensure it never becomes law.”

The bill will move to the U.S. Senate in the coming days and weeks, but it must first be reviewed by a Senate committee before leadership schedules it for a floor vote, where it will need 60 votes to pass.

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