Federal judge condemns Florida for threatening TV stations over Amendment 4 advertising

Florida residents will vote this fall on a constitutional amendment to limit government intervention in abortion. Therefore, the authorities decided to intervene in freedom of expression to prevent voters from restricting the government’s right to interfere in reproductive decisions. The state threatened television channels with criminal sanctions for running an ad supporting the abortion initiative (known as Amendment 4).

A federal judge is not impressed. “To keep it simple for the state of Florida: It’s First Amendment stupid,” U.S. District Judge Mark E. Walker wrote in an Oct. 17 opinion.

Walker temporarily banned Florida from attempting to censor the ad and granted the request from Floridians Protecting Freedom, the group that supports Amendment 4.

“Importantly, this is an injunction and is generally not appealable,” noted legal writer Chris Gender, author of the book Law moron Newsletter, on BlueSky. “The injunction hearing is scheduled for October 29, and the state may appeal.”

Florida has pulled out all the stops to prevent Amendment 4 from passing. The state has used taxpayer money to run ads opposing the change while preventing people from seeing an ad supporting it.

The ad in question is “political speech—speech at the heart of the First Amendment,” Judge Walker noted. “And just this year, the United States Supreme Court reaffirmed the principle that the government cannot indirectly do what it cannot do directly by threatening third parties with legal sanctions to censor speech of which it disapproves. The government cannot excuse its indirect censorship of political speech simply by declaring the disapproving speech ‘false.’

This is the core of the state’s argument against the Floridians Protecting Freedom ad. It’s about a woman named Caroline who was diagnosed with brain cancer while pregnant with her second child. “The doctors knew that if I didn’t terminate my pregnancy I would lose my baby, my life and my daughter would lose her mother,” she says. “Florida has now banned abortions, even in cases like mine,” she added.

The Florida Department of Health claimed the ad constituted a “sanitary nuisance” – an act “which may endanger or impair the health or life of any individual or by which or through which the direct or “Indirectly, disease can be caused.” John Wilson, the department’s former general counsel, sent letters to television stations in Florida saying that anyone found to be committing such harassment must remove it within 24 hours , otherwise he will face legal proceedings, including possible criminal proceedings.

While television networks have the right to air political advertising, this does not include “false advertising, which, if believed, would likely have harmful effects on the lives and health of pregnant women in Florida,” Wilson told television stations.

That’s wrong: TV networks are not required to fact-check political ads before they air, nor are they required to remove ads simply because they contain controversial facts or statements that officials believe are untrue. If this were the case, those in power would have the ability to stifle or suppress all forms of political speech simply by claiming that the content of the speech is false.

“There is no ‘general exception to the First Amendment for false statements,'” Walker noted, citing the 2012 Supreme Court case United States v. Alvarez. “Just the falsehood
does not bring speech outside the First Amendment unless there is some other traditionally recognized, legally cognizable harm,” because (Alvarez again) “allowing the state to be the arbiter of truth is dangerous.”

(As a reminder, Florida’s six-week abortion ban includes exceptions for abortions necessary to save a pregnant woman’s life or “an important bodily function.” However, what types of scenarios fall under this exception are up to the discretion of doctors and the state. )

After Wilson’s letters were sent, “at least one of the television stations that were on got in touch.”
“Plaintiff’s advertising has stopped there,” Judge Walker noted.

Floridians Protecting Freedom responded with a complaint in the U.S. District Court for the Northern District of Florida, arguing that its First Amendment rights had been violated. The group asked the court to find that Wilson and Florida Surgeon General Joseph Ladapo engaged in unconstitutional coercion and speech discrimination and to issue a preliminary injunction against Lapado, the head of the Florida Department of Health, against further action to take the notice or organizations that spread it.

At an emergency hearing on Oct. 17, the state argued that it was enforcing a law of general application and was therefore immune from a challenge to the First Amendment.

“Nonsense,” Judge Walker wrote. “The defendants’ cases addressed a different issue—namely, whether the enforcement of a law of general application against the press, which otherwise impairs the ability of the press to gather and report news, violates the First Amendment . That is not the case. The issue here is whether the state can censor key political speech under the pretext that the speech is false and implicates public health concerns.”

Walker also rejected the idea put forward by the state that the Caroline advertisement posed an “imminent threat” to public health. Speech constitutes an imminent threat only “if it directly incites or provokes unlawful acts or poses a clear and present danger by causing “substantial evils” that the government has the right to prevent, such as obstacles to military efforts , profanity or other acts of violence and allegations of attempting to overthrow the government,” he wrote. “But there is no indication that Plaintiff’s notice would bring about the ‘substantial evils’ recognized by the Supreme Court, nor is there any indication that Plaintiff’s notice would cause individuals to take immediate unlawful action seize.”

The judge ultimately concluded that Floridians Protecting Freedom was likely to succeed in this case and issued a preliminary injunction against Florida’s Surgeon General, prohibiting him from taking “any further action to coerce, threaten, or threaten to have a direct or indirect impact on television.” to seize”. Broadcasters, broadcasters, or other parties for broadcasting Plaintiff’s speech or for taking enforcement action against Plaintiff for placing political advertisements or engaging in other speech protected by the First Amendment. The injunction is valid until October 29th at 5 p.m. A hearing on the injunction is scheduled for earlier in the day.

“Of course the Surgeon General of Florida has the right to advocate for himself
“But it would undermine the rule of law if the state could turn its own advocacy into the direct suppression of protected political expression.”

“This decisive first victory is a triumph for every Floridian who believes in democracy and the sanctity of the First Amendment,” Yes on 4 campaign manager Lauren Brenzel said in a statement. “The court confirmed what we always knew: the government cannot silence the truth about Florida’s extreme abortion ban.”