‘It’s the First Amendment, stupid’: Federal judge slams Florida for censoring abortion-amendment ads

Florida Gov. Ron DeSantis speaks out against Amendment 4 which would protect access to abortion during a news conference with Florida Physicians Against Amendment 4 Monday, Oct. 21, 2024, in Coral Gables, Fla. (AP Photo/Lynne Sladky)

“To keep it simple for the State of Florida: it’s the First Amendment, stupid,” snapped a federal judge in a ruling over Florida’s demands that television stations pull ads supporting a ballot initiative to protect abortion rights.

This election cycle, Florida voters will have the chance to vote on six proposed amendments to the state constitution that are collectively titled “Amendment to Limit Government Interference with Abortion.” One portion, known as Amendment 4, would add constitutional language that “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.” Amendment 4 would maintain the current constitutional provision that permits a law requiring parents to be notified before a minor can receive an abortion.

The state of Florida opposes Amendment 4, and has launched a public campaign against it. Advocacy group Floridians Protecting Freedom, Inc. (FPF), launched its own campaign in favor of Amendment 4. After broadcasters received letters early this month from the Florida Department of Health calling for them to stop running a FPF ad on the grounds that the ad included “dangerous information” and threatened possible criminal prosecution against the stations, FPF filed an emergency lawsuit.

In its case, FPF argued that the Sunshine State went too far in advocating against the amendment by demanding with threats of criminal prosecution that television stations remove FPF’s pro-Amendment 4 ads.

U.S. District Judge Mark Walker, a Barack Obama appointee, appeared to have no patience for Florida’s position in the case. On Thursday, Walker issued a temporary restraining order against Florida, enjoining the state’s health department from taking any further actions to coerce, threaten, or intimate repercussions directly or indirectly to television stations, broadcasters, or other parties for airing FPF’s ads. The specific ad in question featured a woman named Caroline, a mother and brain cancer patient who shared her harrowing story about receiving life-extending abortion care.

In their filing for a temporary order, FPF argued that the “Caroline” ad was core political speech squarely protected under the First Amendment, and that Florida’s cease and desist letters to press were a textbook violation of the group’s constitutional rights.

Walker agreed. In the 17-page emergency order, Walker took aim directly at Joseph Ladapo, Florida’s Surgeon General under Republican Gov. Ron DeSantis, and a named defendant in the lawsuit:

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.

Walker reminded that the very purpose of the First Amendment was to prevent government regulation of the press. The judge used some plainer language directed precisely at Florida: “To keep it simple for the State of Florida: it’s the First Amendment, stupid.”

Walker ruled that Florida’s demands over the broadcast ads likely constituted viewpoint discrimination, and that threats of criminal prosecution for speech bring a heavy presumption of constitutional invalidity. Florida, Walker said, is free to combat FPF’s ads with ads of its own — but it may not “subvert the rule of law” by “transform[ing] its own advocacy into the direct suppression of protected political speech.”

Walker ended his ruling by invoking the words of the Gadsden flag, a Revolutionary War slogan that has frequently been co-opted by conservatives.

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,”” the judge wrote. “Under the facts of this case, the First Amendment prohibits the State of Florida from trampling on Plaintiff’s free speech.

Walker’s ruling coincided with another filing Thursday that was recently made public. In it, former general counsel for the Florida Department of Health John Wilson told the court that his Oct. 10 sudden resignation from the health department came as a result of the letters sent to broadcasters.