Judge slams Florida for censoring political ad: “It’s the First Amendment, stupid”

US District Judge Mark Walker had a blunt message for the Florida surgeon general in an order halting the government official’s attempt to censor a political ad that opposes restrictions on abortion.

“To keep it simple for the State of Florida: it’s the First Amendment, stupid,” Walker, an Obama appointee who is chief judge in US District Court for the Northern District of Florida, wrote yesterday in a ruling that granted a temporary restraining order.

“Whether it’s a woman’s right to choose, or the right to talk about it, Plaintiff’s position is the same—’don’t tread on me,'” Walker wrote later in the ruling. “Under the facts of this case, the First Amendment prohibits the State of Florida from trampling on Plaintiff’s free speech.”

The Florida Department of Health recently sent a legal threat to broadcast TV stations over the airing of a political ad that criticized abortion restrictions in Florida’s Heartbeat Protection Act. The department in Gov. Ron DeSantis’ administration claimed the ad falsely described the abortion law, which could be weakened by a pending ballot question.

Floridians Protecting Freedom, the group that launched the TV ad and is sponsoring a ballot question to lift restrictions on abortion, sued Surgeon General Joseph Ladapo and Department of Health general counsel John Wilson. Wilson has resigned.

Surgeon general blocked from further action

Walker’s order granting the group’s motion states that “Defendant Ladapo is temporarily 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 or engaging in other speech protected under the First Amendment.”

The order expires on October 29 but could be replaced by a preliminary injunction that would remain in effect while litigation continues. A hearing on the motion for a preliminary injunction is scheduled for the morning of October 29.

The pending ballot question would amend the state Constitution to say, “No law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider. This amendment does not change the Legislature’s constitutional authority to require notification to a parent or guardian before a minor has an abortion.”

Walker’s ruling said that Ladapo “has the right to advocate for his own position on a ballot measure. But it would subvert the rule of law to permit the State to transform its own advocacy into the direct suppression of protected political speech.”

Federal Communications Commission Chairwoman Jessica Rosenworcel recently criticized state officials, writing that “threats against broadcast stations for airing content that conflicts with the government’s views are dangerous and undermine the fundamental principle of free speech.”

State threatened criminal proceedings

The Floridians Protecting Freedom advertisement features a woman who “recalls her decision to have an abortion in Florida in 2022,” and “states that she would not be able to have an abortion for the same reason under the current law,” Walker’s ruling said.

Caroline, the woman in the ad, states that “the doctors knew if I did not end my pregnancy, I would lose my baby, I would lose my life, and my daughter would lose her mom. Florida has now banned abortion even in cases like mine. Amendment 4 is going to protect women like me; we have to vote yes.”

The ruling described the state government response:

Shortly after the ad began running, John Wilson, then general counsel for the Florida Department of Health, sent letters on the Department’s letterhead to Florida TV stations. The letters assert that Plaintiff’s political advertisement is false, dangerous, and constitutes a “sanitary nuisance” under Florida law. The letter informed the TV stations that the Department of Health must notify the person found to be committing the nuisance to remove it within 24 hours pursuant to section 386.03(1), Florida Statutes. The letter further warned that the Department could institute legal proceedings if the nuisance were not timely removed, including criminal proceedings pursuant to section 386.03(2)(b), Florida Statutes. Finally, the letter acknowledged that the TV stations have a constitutional right to “broadcast political advertisements,” but asserted this does not include “false advertisements which, if believed, would likely have a detrimental effect on the lives and health of pregnant women in Florida.” At least one of the TV stations that had been running Plaintiff’s advertisement stopped doing so after receiving this letter from the Department of Health.

The Department of Health claimed the ad “is categorically false” because “Florida’s Heartbeat Protection Act does not prohibit abortion if a physician determines the gestational age of the fetus is less than 6 weeks.”

Floridians Protecting Freedom responded that the woman in the ad made true statements, saying that “Caroline was diagnosed with stage four brain cancer when she was 20 weeks pregnant; the diagnosis was terminal. Under Florida law, abortions may only be performed after six weeks gestation if ‘[t]wo physicians certify in writing that, in reasonable medical judgment, the termination of the pregnancy is necessary to save the pregnant woman’s life or avert a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition.'”

Because “Caroline’s diagnosis was terminal… an abortion would not have saved her life, only extended it. Florida law would not allow an abortion in this instance because the abortion would not have ‘save[d] the pregnant woman’s life,’ only extended her life,” the group said.

Judge: State should counter with its own speech

Walker’s ruling said the government can’t censor the ad by claiming it is false:

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.”

State officials must show that their actions “were narrowly tailored to serve a compelling government interest,” Walker wrote. A “narrowly tailored solution” in this case would be counterspeech, not censorship, he wrote.

“For all these reasons, Plaintiff has demonstrated a substantial likelihood of success on the merits,” the ruling said. Walker wrote that a ruling in favor of the state would open the door to more censorship:

This case pits the right to engage in political speech against the State’s purported interest in protecting the health and safety of Floridians from “false advertising.” 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.

Walker then noted that Ladapo “has ample, constitutional alternatives to mitigate any harm caused by an injunction in this case.” The state is already running “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,” Walker wrote. “The State can continue to combat what it believes to be ‘false advertising’ by meeting Plaintiff’s speech with its own.”