‘To Keep It Simple… It’s the First Amendment, Stupid’: Judge Slams Florida’s Attempt To Censor Abortion Initiative Ads

Free Speech

from the judicial-clarity dept

It’s not unheard of for us, or other publications, to paraphrase what a court ruling says at times. This time, however, the quote in the headline is actually 100% a direct quote from Judge Mark Walker, the Chief Judge of the Northern District of Florida federal court in a ruling against the state of Florida.

Here’s the full quote:

To keep it simple for the State of Florida: it’s the First Amendment, stupid.

To be clear, Florida’s legislature and Ron DeSantis — despite claiming to be big “free speech” supporters — have shown themselves to be somewhat confused about how the First Amendment works. Over the last few years, we’ve covered multiple things done by the governor and the legislature that required courts to step in and explain the First Amendment.

And here we are again.

The background here is pretty straightforward. This year, in Florida, there’s a ballot initiative in the state that would amend the state’s Constitution to say that no law can restrict abortion “before viability” or when a healthcare provider deems it necessary. The group backing the ballot, Floridians Protecting Freedom, created some 30-second commercials and bought some airtime on TV networks promoting the initiative.

Then, John Wilson, the general counsel of Florida’s Department of Health, sent a fucked up letter to the stations running the ads. The letter claimed that the ads violated the state’s “sanitary nuisance” laws, which normally are used to deal with things like overflowing septic tanks or improper garbage disposals.

Claiming that a political ad violates that law is so obviously thuggish, censorial bullshit that (1) the lawyer who sent it, John Wilson, then resigned and admitted that his conscience couldn’t let him continue in that job after sending such a threat letter and (2) FCC Chair Jessica Rosenworcel issued a reminder that broadcasters have a First Amendment right to air what they want, and “threats against broadcast stations for airing content that conflicts with the government’s views are dangerous and undermine the fundamental principle of free speech.”

Floridians Protecting Freedom went to court on Wednesday with a complaint calling out how egregious the threats are. The complaint asked for a declaratory judgment that the letters violate the First Amendment, and for an injunction against the government to stop such letters from being sent going forward.

Just one day later, the court did exactly that. Here’s the longer version of the quote above:

Plaintiff’s argument is correct. While Defendant Ladapo refuses to even agree with this simple fact, Plaintiff’s political advertisement is political speech—speech at the core of the First Amendment. And just this year, the United States Supreme Court reaffirmed the bedrock principle that the government cannot do indirectly what it cannot do directly by threatening third parties with legal sanctions to censor speech it disfavors. The government cannot excuse its indirect censorship of political speech simply by declaring the disfavored speech is “false.” “The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion.” Thomas v. Collins, 323 U.S. 516, 545 (1945) (Jackson, J., concurring). “In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.” Id. To keep it simple for the State of Florida: it’s the First Amendment, stupid.

It then goes through a full explanation of just how stupid all this is. Florida’s argument is dismissed as “nonsense.”

At the hearing, Defendant led with the argument that laws of general applicability are immune from First Amendment challenge. Nonsense. The line of cases Defendant cites to support this dubious argument are readily distinguishable from this case. Defendant’s cases addressed a different issue—namely, whether enforcement of a law of general applicability against the press, which incidentally affects the press’s ability to gather and report the news, offends the First Amendment. See, e.g., Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991); Villieux v. Nat’l Broad. Co., 206 F.3d 92 (1st Cir. 2000); Food Lion v. Cap. Cities/ABC, 194 F.3d 505 (4th Cir. 1999). That is not this case. The issue here is whether the State can censor core political speech under the guise that the speech is false and implicates public health concerns. When state action “burdens a fundamental right such as the First Amendment, rational basis yields to more exacting review.” NAACP v. City of Philadelphia, 834 F.3d 435, 443 (3d Cir. 2016). With limited exceptions not applicable here,4 a government restriction on speech is subject to strict scrutiny if it is content based. Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).

Footnote 4 also does a good job explaining how there are limited exceptions to the First Amendment, but there’s no way that these ads fit into those categories:

A few “limited categories of speech are traditionally unprotected—obscenity, fighting words, incitement, and the like.” Honeyfund.com, Inc. v. Governor, 94 F.4th 1272, 1277 (11th Cir. 2024) (quoting Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 791 (2011)). “But what counts as unprotected speech starts and ends with tradition—‘new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.’ ” Id. But Defendant has not demonstrated that the political speech at issue falls within any of these categories. It is not commercial speech subject to a more relaxed standard permitting some government regulation, nor is it obscene, nor is it inciting speech that will imminently lead to harm to the government or the commission of a crime.

Defendant argues this is dangerous and misleading speech that could cause pregnant women harm in Florida. But there is no “general exception to the First Amendment for false statements.” United States v. Alvarez, 567 U.S. 709, 718 (2012) (plurality opinion). Falsity alone does not bring speech outside the First Amendment absent some other traditionally recognized, legally cognizable harm. Id. at 718–722. That is because “it is perilous to permit the state to be the arbiter of truth.” Alvarez, 567 U.S. at 752 (Alito, J., dissenting).

Defendant seeks to fit a square peg into a round hole by suggesting that Plaintiff’s speech is unprotected because it poses an “imminent threat” to public health. But this argument fails too. Speech is unprotected as an “imminent threat” when it incites or produces imminent lawless action, or poses a clear and present danger by bringing about the “substantive evils” that the government has a right to prevent, like obstacles to military efforts, obscenity, acts of violence, and charges to overthrow the government. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931). But there is no suggestion that Plaintiff’s ad would bring about the “substantive evils” that the Supreme Court has recognized, nor is there any suggestion that Plaintiff’s ad would cause individuals to take any imminent lawless action.

The court then explains how this law doesn’t come even remotely close to passing the high bar for strict scrutiny. Again, some of the meatiest bits are in the footnotes. Florida tried to claim that the recently decided Vullo case (in which a unanimous Supreme Court rejected efforts by government officials to coerce third parties into punishing people for their speech) didn’t apply because the speech here wasn’t protected by the First Amendment. The court explains that this is not how this works:

When asked why this case was not governed by Vullo, Defendant’s response was that Vullo concerned the state exercising its regulatory authority “in an effort to stop the NRA from engaging in constitutionally protected speech.” But “the difference here,” he argued, is that “the specific words being expressed” in this case don’t fall “within the ambit of the First Amendment.” ECF No. 23 at 36–37. But that is beside the point. In Bantam Books, on which Vullo relied, the state threatened enforcement on the basis that the speech was allegedly obscene—which the Supreme Court acknowledged was “not within the area of constitutionally protected speech or press.” 372 U.S. at 59, 65. Here, as discussed above, Defendant has not even shown that the speech falls within one of the “traditionally unprotected” categories, let alone that such a distinction would remove this case from the ambit of Vullo and Bantam Books.

Furthermore, the court notes that these threats from the Florida government are unconstitutional under two separate analyses: for both being an unconstitutional coercion in an attempt to suppress speech and for viewpoint discrimination, both of which are forbidden under the First Amendment.

The judge points out that if this was allowed to stand, the state could just deem any speech it dislikes a “sanitary nuisance” and threaten criminal charges if it wasn’t removed:

It is no answer to suggest that the Department of Health is merely flexing its traditional police powers to protect health and safety by prosecuting “false advertising”—if the State can rebrand rank viewpoint discriminatory suppression of political speech as a “sanitary nuisance,” then any political viewpoint with which the State disagrees is fair game for censorship. Moreover, the record demonstrates that Defendant has ample, constitutional alternatives to mitigate any harm caused by an injunction in this case. The State of Florida has actively undertaken its own anti-Amendment 4 campaign to educate the public about its view of Florida’s abortion laws and to correct the record, as it sees fit, concerning pro-Amendment 4 speech. The State can continue to combat what it believes to be “false advertising” by meeting Plaintiff’s speech with its own

And thus, Florida is “enjoined from taking any further actions to coerce, threaten, or intimate repercussions directly or indirectly to television stations, broadcasters, or other parties for airing Plaintiff’s speech, or undertaking enforcement action against Plaintiff for running political advertisements….”

This is a good, strong outcome, but it remains absolutely ridiculous that this situation happened in the first place. Again, the idea that the modern GOP supports “free speech” is laughable given continued actions like this one.

The modern GOP needs to be reminded time and time again, “it’s the First Amendment, stupid,” but they have made it clear that they don’t care. They will continue to take every action they can to suppress views they dislike, because shutting up critics and “owning the libs” is way more important to them than actually upholding the Constitution.

Filed Under: 1st amendment, abortion, ballot initiative, coercion, florida, florida department of health, john wilson, mark walker, political advertising, ron desantis