Amid a rash of new bills in Florida, many of which have caused concern and drawn condemnation from people within the state and beyond, is House Bill 991, a drastic revision of laws regarding defamation of public figures. If signed into law, the bill would make it easier for public figures to sue (and win against in court) their critics—specifically, by accusing them of discrimination. Florida Governor Ron DeSantis has made it clear that he would support such a measure, and his allies in the state legislature have followed a rationale that is not hard to perceive. As lawmakers, university officials, and others in the Sunshine State ratchet up their discriminatory rhetoric and actions, they are simultaneously trying to dissuade or punish those who criticize them for those actions.
H.B. 991 is a blunt instrument, of questionable constitutionality, for silencing dissent. It has been described, and rightly derided, as an attack on journalists, as it would undo the “actual malice” standard, established in 1964, by which journalists cannot be found guilty of libel or defamation unless they intentionally and maliciously misrepresent the facts. But the bill also, perhaps unexpectedly, tells us something about the nature of belief in American society and law, as well as the overlapping interests and strategies of right-wing political actors. Embedded in the bill are exceptions for “religious expression or beliefs” and “scientific beliefs.” If a public figure expresses religious and/or scientific beliefs, these cannot be considered evidence of discrimination. What type of beliefs are these? Before getting into that, we need to understand H.B. 991 and what it purports to do.
In addition to the conventional definition of defamation, which is to make untrue statements meant to demean a person’s character and thus harm their public image, the bill states, “An allegation that the plaintiff has discriminated against another person or group because of their race, sex, sexual orientation, or gender identity constitutes defamation per se.” If you accuse someone of such things, you have necessarily defamed them, and they can sue you. The bill is clearly designed to have a chilling effect on criticism—or not just criticism but, it seems, simple descriptions that accurately identify discriminatory actions and practices. Furthermore, according to the proposed measure, the public figure does not need to demonstrate that the accused defamer acted out of “actual malice.” It does not matter whether they were or were not trying to damage their reputation.
If you are sued for defamation, the only way to win your case would be to show that what you said was true—and that it does not portray the plaintiff in a “false light.” So you had better have your facts straight and, to be safe, set some not-unflattering lighting.
But there is a catch: “A 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.” And a second catch: Nor can a defendant cite a plaintiff’s “scientific beliefs.”
What would this actually look like in practice? Let’s imagine a hypothetical scenario. A public figure—say, a candidate for the state House of Representatives—makes a bigoted or discriminatory statement regarding sex and gender. At a campaign event, she says something like, “I sincerely believe that the trans agenda is evil and that the radical left is trying to sexualize our kids, and I’m going to stop them.” Let’s say that I, as a nonjournalist—say, a religious studies professor at a private liberal arts college—write an article or make a comment on a podcast in which I refer to that statement as discriminatory. Perhaps I characterize the public figure as “anti-trans.” Under the new law, that figure can sue me on the grounds that my characterization is defamatory. If she prevails in her suit, she is entitled to damages of no less than $35,000. Naturally, I can win the case if I provide hard evidence that her statements were in fact discriminatory and that my allegation was true. But this is where the catch comes in: My accuser can maintain that her statements were religious expressions.
This bill is part of not only a nationwide spate of anti-LGBTQ legislation but also a related campaign to promote religious freedom—that is to say, the freedom of a select few. As I wrote in The New Republic last year, right-wing political groups, including Christian legal organizations such as the Alliance Defending Freedom, have been hard at work transforming the character of the “sincere religious believer” as a novel construction within the law. Inevitably, the individual right to free religious expression will conflict with the rights of others. ADF has worked on a number of recent high-profile cases in which a cake baker or website designer or football coach, as sincere believers, are protected from doing business with or accommodating others, even if it harms them.
Legal scholars call these “third-party harms.” If a conflict is simply between a religious believer and the government—for example, a religious person needs a dietary accommodation while incarcerated—no one else’s rights are affected. Thomas Jefferson, one of the framers of American religious freedom, famously wrote that “it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” But what happens when someone’s religious opinions, and their actions based on them, are in fact harmful? When they do more than pick your pocket or break your leg but, worse, deny you life-saving medical care? There is real material danger when public figures circulate anti-LGBTQ rhetoric, not least because it leads to changes in policy and practice that severely undermine public health. This is about life and death. And yet the defining feature of this new character, the sincere believer, is that they are unaccountable to others.
Can religious beliefs be bigoted, discriminatory, or harmful? H.B. 991 seems to suggest they cannot. There is no conceptual space in the bill for a public figure’s rhetoric to be both discriminatory and religious. Or, another way to think of it: Religious beliefs might be discriminatory, but to say so is defamatory.
Critics of discriminatory religions sometimes claim that they are not really religious. “White Christian nationalism” is a political ideology, or it is a corrupted version of Christianity. These critiques end up supporting the underlying logic of H.B. 991. They say if it is discriminatory, it is not religious. The bill says if it is religious, it is not really discriminatory. In our secular public sphere, it is difficult to have public conversation about whether a religious belief is true, but now we are increasingly without a way to argue whether a religious belief is, in fact, bad—even when that sincere religious belief is sincerely constructed to do material harm to the interests of others.
Even if we are not publicly deliberating about the truth or falsity of religion, there exist powerful if unspoken assumptions about which beliefs are or are not religious. In fact, lawmakers have snuck these distinctions right into H.B. 991. Remember, the bill states that any accusation of discrimination because of “race, sex, sexual orientation, or gender identity” is defamation. But the carve-out for religious belief applies only to the last two, “sexual orientation” and “gender identity.” What happened to race and sex? Is anti-LGBTQ bigotry authentically religious in a way that racism or sexism apparently is not?
As a historian of American religion, I am interested in how these categories shift, and how these often unspoken and undetected ideas about religion structure our political and social life. Earlier this year, at a panel on my book Sincerely Held, the scholar Vincent Lloyd asked the provocative question, “Is it really possible to sincerely be committed to hegemonic ideology?” What he meant was that people have to assert a sincere (religious) belief only when their view is not mainstream. It seems strange to say, “I sincerely believe that democracy is good” or “It is my personal belief that Earth is round.” Sincerity claims have a tone of defiance. In what other tone can one answer a question like, “Do you sincerely believe that?”
On the Christian right today we see two types of arguments. One is made to protect religious people whose beliefs (for instance, same-sex marriage is wrong) are now minority views. As Justice Sam Alito wrote in his Obergefell dissent, “If they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.” Their sincere religious beliefs must be asserted as such because they are out of step with hegemonic ideology.
This brings us, finally, to that second carve-out. It is not just religious beliefs that cannot be used as evidence of discrimination but also “scientific beliefs.” Many of the same right-wing figures make another type of argument: that “biology” provides evidence for anti-trans policies. ADF, which has written and supported many anti-trans “save women’s sports” bills, consistently argues that it is simply defending not just women’s rights but scientific realities. It has used the hashtag #BiologyMatters to brand these bills. In this case, the wager is that you do not have to cling anachronistically to sincere beliefs that men and women are biologically different and that these differences naturally and uncontroversially lend themselves to sex-segregated sports teams or bathrooms. (Again, the specification of “sexual orientation” and “gender identity” is worth noting; are there not “scientific beliefs” about race and sex that might be called discriminatory? Why don’t those count?) ADF and its allies are making a bad-faith argument, but it matters because it is different from the arguments in favor of protecting sincere believers. Simply put, you do not really need religious belief if you can instead say, “Science is real,” “Trust the science,” or #BiologyMatters.
H.B. 991 thus plays alternately on the deeply personal nature of religious belief and the supposedly neutral nature of scientific belief. Both moves protect the speaker from criticism by, in part, exempting the content of the speech from public scrutiny. How could religion, which is good and private and constitutionally protected, be discriminatory? How could science, which is secular and rational and neutral, be discriminatory? If you suggest otherwise, you are the one who has done harm, and the damages are calculable: no less than $35,000.
