The following article by Jackie Llanos appeared in the Florida Phoenix on Oct. 17, 2024.
Update: A federal judge temporarily barred the DeSantis administration from intimidating and coercing television stations that air ads in support of the proposed Amendment 4, which would bar government interference in abortion.
The ruling stops Surgeon General Joseph Ladapo as the head of the Florida Department of Health from acting against broadcasters the department has already threatened with criminal charges.
The temporary restraining order remains in effect until Oct. 29.
“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,” U.S. District Judge Mark Walker wrote. “Under the facts of this case, the First Amendment prohibits the State of Florida from trampling on Plaintiff’s free speech.”
“To keep it simple for the state of Florida, it’s the First Amendment, stupid,” Walker wrote.
An initial win for the abortion-rights backers
The ruling is a win for the sponsor of Amendment 4, Floridians Protecting Freedom. The organization argued that the health department’s cease-and-desist letters to television stations airing one of its ads amounted to coercion and viewpoint discrimination in violation of the First Amendment.
Lauren Brenzel, campaign director for Yes on 4, celebrated the ruling, calling it a critical initial victory.
“The court has affirmed what we’ve known all along: the government cannot silence the truth about Florida’s extreme abortion ban. It’s a deadly ban that puts women’s lives at risk,” Brenzel wrote in a press release. “This ruling is a powerful reminder that Floridians will not back down in the face of government intimidation.”
Shortly after sending the cease-and-desist letters, the health department contracted for $1.4 million with two law firms to pursue litigation against “false political advertisements.” The plaintiffs entered those contracts as evidence in the suit.
“Of course, the Surgeon General of Florida has the right to advocate for his own position on a ballot measure,” Walker wrote in the ruling. “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.”
The health department sustains its argument that the ad posed a risk to other women.
“The fact is these ads are unequivocally false and detrimental to public health in Florida,” wrote James Williams, the department’s communications director, in an email to Florida Phoenix. “The media continues to ignore the truth that Florida’s heartbeat protection law always protects the life of a mother and includes exceptions for victims of rape, incest, and human trafficking.”
Judge rebuked DeSantis admin’s attorney
Earlier, Walker fired back during a hearing Thursday morning at an attorney defending the DeSantis administration.
He asked Brian Barnes point-blank whether the ad at issue stated that Florida’s six-week ban lacks an exception to protect the life of the mother. Barnes, who represents Ladapo in the suit filed by Floridians Protecting Freedom, responded that the ad implied a lack of exceptions.
“I don’t want to waste my time with non-answers to my questions,” Walker said during their exchange about the ad’s contents.
Floridians Protecting Freedom sought a temporary restraining order stopping the Florida Department of Health from coercing, threatening, or intimidating the organization or broadcasters for airing speech in favor of the amendment.
Amendment 4 would protect abortion access through viability, typically around 24 weeks, or to protect the life of the pregnant person. It needs at least 60% approval from voters to pass.
The group filed the case in the U.S. District Court for the Northern District of Florida on Wednesday following the health department’s Oct. 3 cease-and-desist letters to television stations running an ad from the Yes on 4 campaign.
State argues it’s a public safety matter
The DeSantis administration argues it didn’t violate First Amendment protections for political speech to threaten criminal prosecution of broadcasters playing the ad featuring a woman diagnosed with brain cancer. At least one station, WINK TV in Fort Myers, stopped airing the ad after receiving the letter, according to the complaint from Amendment 4’s organizer.
In the ad, a woman named Caroline says Florida’s abortion restrictions would have prevented her from getting an abortion had they been in place when she began chemotherapy.
Barnes argued the ad put other women at risk because Caroline’s statement might dissuade them from seeking medical attention for a pregnancy complication, Barnes said.
He insisted the state would also have interest in stopping a theoretical commercial stating that the 911 emergency line is not working.
“How in the world would a political ad supporting a political amendment constitute commercial speech?” Walker responded to Barnes’ hypothetical scenario.
Barnes also argued that Floridians Protecting Freedom lacked standing to sue because it couldn’t prove injury, since it continued playing the ad elsewhere and hadn’t stopped its campaign in support of the amendment.
Hefty litigation budget
The organization entered as evidence two contracts showing the health department hired law firms to pursue litigation against the political advertisements. The department contracted the firms on Oct. 10 and agreed to pay a combined $1.4 million dollars, according to the documents.
Those contracts demonstrate that the state’s threats against broadcasters are not hollow, said Ben Stafford, one of the plaintiffs’ attorneys.
Stafford called the DeSantis administration’s tactic the “most egregious First Amendment violation” he could remember.
Meanwhile, Floridians Protecting Freedom faces a suit from anti-abortion advocates asking a state trial court to remove Amendment 4 from the ballot. The plaintiffs in that Orange County case are fighting the legitimacy of the signatures collected to get the question in front of voters.
Their complaint cites an Oct. 11 preliminary report from the Florida Department of State accuses Floridians Protecting Freedom of “widespread election fraud.” The Florida Agency for Health Care Administration is also involved in the disputes between the governor and Floridians Protecting Freedom. In September, the agency published a webpage claiming Amendment 4 “threatens women’s safety.”
The Florida Supreme Court and a state trial court in Tallahassee allowed the webpage to stay live.