Can Florida Require Bloggers to Register with the State? 'The Crucible' Comes to Academia in 2023

by Neil H. Buchanan

"Florida bill would require bloggers who write about the governor and legislators to register with the state," warns the headline of an NBC news article.  As it happens, I did not come across that article on my own; it was sent to me by one of my nieces, who added a question: "Have you seen this?"  Generally speaking, I assume that my family is only vaguely aware of what I do, so when one of them (who is a novelist, not a news junkie) brings something like this to my attention, I have to assume that it is big news even outside of my siloed world.

And that supposition, in turn, suggests to me that the state legislator who proposed the bill might merely be trolling.  How better to Own the Libs, after all, than to suggest something outrageous to grab attention, watching non-Republicans get their panties in a bunch about possible government censorship?  On the other hand, things that were only recently unimaginable in my current home state are now becoming grim reality, especially in education (at all levels).  Although this proposed law does not target only professors, it certainly is of a piece with the Sunshine State's Republicans' efforts to put pressure on scholars and other policy experts.

I will, therefore, for present purposes take this proposed censorship seriously -- which includes seriously questioning whether the appropriate response is to ridicule it and to play games in response to it.  I think the answer is ultimately that we have to be aware that these guys are not playing around, no matter how absurd such proposals might seem.  But there is some humor to be mined here as well.

One reason to take the proposal more seriously than otherwise is that it has in fact been filed as a proposed bill in the Florida Senate.  That is hardly enough to guarantee that it will become law, given how many thousands of bills are filed in legislatures and Congress every year that never see the light of day.  (How many bills purported to "repeal Obamacare," for example?)  But in any event, it does mean that we have text to analyze with a critical eye.  (Oh wait, "critical" is now a trigger-word.  My apologies.)

Jurisdiction: Right out of the gate, it is almost impossible not to lapse into mockery and ridicule, because the law seems to apply to any blogger, anywhere.  If Professor Dorf, for example, were to engage in the relevant behavior (which I will discuss momentarily), he would purportedly be required to register with the government of a state in which he does not reside, does not work, has no relatives, and has no investments.  He does have a co-blogger and an occasional co-author who is currently a Floridian, but what about a blogger at, say, the University of North Dakota who has exactly zero contact with Florida?  By the terms of the bill, it appears that the sponsor believes that he and his legislative colleagues can force Professor Dorf, Professor North Dakota, and anyone else to do what they demand.

Content: What are they trying to regulate?  Content, pure and simple.  Sec. 286.31(1)(c): "'Blog post' is an individual webpage on a blog which contains an article, a story, or a series of stories."  Sec. 286.31(2): "If a blogger posts to a blog about an elected state officer ... ."  So, the bill takes itself to be binding on any blogging about "an elected state officer," which means that the content being regulated is anything and everything about "the Governor, the Lieutenant Governor, a Cabinet officer, or any member of the Legislature," which is the definition of elected state officer in Sec. 286.31(1)(f).

I will return to another element that purportedly trigger legal liability shortly, but the key at this point is to emphasize that any person who writes anything at all about the human beings who are currently in the relevant positions of Florida's executive or legislative branches must obey this law.  Or do they?  What if a person blogs about the person who is currently the Lieutenant Governor (which I could not do, because I have no idea who she or he is), but not about their activities as the LG?  Maybe she/he is an avid bicyclist, and another bicyclist blogs about a non-governmental conversation that they had on a bike trail.  Is that "about an elected state officer"?  I guess?  If some law applied to anything written about a professor, would it apply to anything written about me, even in my non-professorial role?  Maybe?

On the other hand, if I were to write about "the Lieutenant Governor's office" doing something, without naming the LG or even treating the office as if it were headed by an officer/person, have I written about the LG, as this legislation defines it?  Even more plausibly, what about a blog post about "the legislature" that does not mention "any member of the Legislature," either by name or even by position held?  Is that blog post still covered, because mentioning the entire legislature is to mention every member, or is it not covered because it mentions no members but only the institution itself?

The point is not that this is a particularly difficult or unique set of questions about legal interpretation, but that the legislative language is either sloppy or overbroad.  On the other hand, as I will explain below, the legislation can surely be tightened up if needed at any time, and perhaps the whole point now is to be vague and overbroad.

Compliance: Once a person has written a blog post (or more) about any of the protected officers (however defined), the proposed law creates a filing requirement.  Sec. 286.31(2) concludes: "[T]he 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," and paragraph (3)(a) adds:

Upon registering with the appropriate office, a blogger must file monthly reports on the 10th day following the end of each calendar month from the time a blog post is added to the blog, except that, if the 10th day following the end of a calendar month occurs on a Saturday, Sunday, or legal holiday, the report must be filed on the next day that is not a Saturday, Sunday, or legal holiday.

The next paragraph generously allows that "[i]f the blogger does not have a blog post on a blog during a given month, the monthly report for that month does not need to be filed."

So ... what exactly?  Anyone who writes about the relevant officers now has to file papers with the state.  For what purpose?  To file papers with the state.  What information must the papers include?  Sec. 286.31(3)(d) says that every filing must include the name of "[t]he individual or entity that compensated the blogger for the blog post," the amount of the compensation, the date of the blog post (and the dates of any other blog posts in the same "series"), and the "website and website address where the blog post can be found."

Penalties: And if a person fails to file papers with the state, as directed?  Per sec. 286.31(5), the penalties must include, "but need not be limited to," a "fine of $25 per day per report for each day late, not to exceed $2,500 per report."  After offering an onerous appeal process, the bill states (in sec. 286.31(5)(g)) that "[f]ines that remain unpaid for a period in excess of 100 days after final determination are eligible for recovery through the courts of this state."

As I noted above, the definition of a blog post in sec. 286.31(2) includes an additional key element, to which my discussion above indirectly referred: money.  The law applies to blog posts for which the blogger "receives, or will receive, compensation."  One is tempted, then, to say that none of this matters.  I am not compensated by the person who runs Dorf on Law (ahem), nor does he receive any compensation himself, because he refuses to make money from the enterprise.  Are we thus free and clear of all of this?  Maybe not, because the law defines compensation as "anything of value," and it is quite valuable to me to be able to write regularly on this site -- and not only psychically, because one could surely make the argument that I attained my current job (and thus salary) in part because of the fame/notoriety of my rather extensive body of work herein.

Again, the larger picture matters, because this legislation appears to be designed to chill speech; and if I say that I am not compensated even as I go about writing (most likely quite disapprovingly) about the actions of the relevant state officers, how long will it be before the legislation is reinterpreted by the state's courts (or broadened by the gerrymandered legislature) to cover what I am doing here, money or no money?

The sponsor of the legislation has said that "[p]aid bloggers are lobbyists who write instead of talk. They both are professional electioneers. If lobbyists have to register and report, why shouldn’t paid bloggers?"  That is a truly jaw-dropping analogy, but it is merely an attempt to justify the new regulation.  The law itself does not rise or fall on whether the analogy works, and if a court is motivated to allow the State of Florida to regulate blogging, "compensation" can be found somewhere in a blog's ecosystem -- or, again, the law could simply be rewritten to drop the compensation requirement entirely.

Or can it?  NBC News's piece ends with this: "Ron Kuby, a First Amendment lawyer in New York, said the law would not survive a court challenge if it is passed.  'It's hard to imagine a proposal that would be more violative of the First Amendment,' Kuby said. 'We don't register journalists. People who write cannot be forced to register.'"  For now, maybe.  But if Republicans are trying to get cases to the Supreme Court's emboldened majority to cut back on New York Times v. Sullivan -- and they are -- how long will it be before Mr. Kuby's confident prediction will sound wistful and quaint?

Let us, then, consider seriously what a future would look like in which blogging is a regulated activity in Republican-led states (or nationwide).  As I noted above, the side of my brain that loves clever lawyering would be tempted to make arguments to show that I have not violated the law, such as my example about writing about the legislature without writing about legislators.  As I noted in a related context in a column last week, however, "[i]f you were teaching in Florida right now, and you cared about your job security and had been accused of violating [the law], would you reply breezily that you" technically did not violate the letter of the law?  Hardly.  That is what chilling effects are all about.  People over-correct, precisely because they know that the people who wrote and interpret the law will not be constrained by arguments about wording.

All of which brings me to the second half of the title of today's column: "'The Crucible' Comes to Academia in 2023."  The United States went through a time in which this kind of targeting of intellectuals was common.  Among the people who tried to navigate his way through the McCarthy Era was the playwright Arthur Miller, one of whose greatest plays is "The Crucible."  Miller wrote his play about the Salem witch trials as a barely veiled analogy to the anti-communist hearings in Congress.  That literary device is a time-honored method by which artists attempt to evade punishment for writing things that would displease the powers-that-be.  Would it work to do something like that in a future that this Florida legislation might be a part of?

In a column several months ago, I laid out a list of things that Florida's governor and his allies in the legislature have done.  To be cute, I framed the list as hypothetical: "Imagine that there was, say, a governor who ... ."  After listing what my state's governor and ruling party have in fact done, I then wrote: "I am not saying that such a governor necessarily exists ... ."  Gosh, am I not crafty?

The thing is, Arthur Miller did not get away with it.  In fact, he was called to testify in McCarthy's hearings, and when he refused to name names, he was found guilty of contempt of Congress by a federal judge, sentenced to a fine and a prison sentence, blacklisted, and his passport was canceled.  His conviction was later overturned, but only because the appellate court concluded that the chair of the committee had lied to Miller to get him to testify in the first place.  And even that appellate outcome only happened after McCarthy had long since been discredited, in a far different political environment.  Would judges appointed by a McCarthyite governor or president have been so fair-minded?

The point is that attempts to "work around" oppressive laws, as important as those attempts are, must necessarily come from a position of weakness.  Those in a position of strength, meanwhile, can change the rules of the game at will, such that every work-around can be closed off, retrospectively if not prospectively.  It is tempting to make light of the kind of legislation that I have described here, but there is nothing lighthearted about it.