Courts, Government

Judge Rebukes DeSantis Admin: 'It's The First Amendment, Stupid.'

It's not 'speech,' it's 'sanitary nuisance!'

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First Amendment textFlorida Governor Ron DeSantis is getting spanked in court again. And once again it’s at the hands of Judge Mark Walker, who granted a temporary restraining order against the state’s Department of Health on Friday.

“To keep it simple for the State of Florida: it’s the First Amendment, stupid,” the judge wrote scornfully.

It would appear that DeSantis (HLS ’05) requires the court to explain the concept of free speech to him, as if to a toddler. Because the governor and his minions are under the impression that that they can censor their constituents simply by rebranding their speech as a “sanitary nuisance,” akin to pollution dumped in the waterways.

The ruling comes in response to the state’s efforts to dissuade voters from supporting Amendment 4, a ballot referendum which would enshrine the right to an abortion in the state’s constitution. DeSantis and his cronies are engaged in extensive shenanigans to block it including: a taxpayer-funded advertising campaign; threats to prosecute the ballot organizers for signature fraud; and screwing with the financial impact statement to include the litigation cost of defending the law in court from the very people pushing for its passage.

That last one is ironic in light of the fact that DeSantis’s pre-enactment antics include hiring a law firm which calls itself First & Fourteenth PLLC — get it? get it? — to attack supporters of the referendum, at a projected cost of about $1 million.

The debacle started on October 3, when John Wilson, the now-former general counsel for the Florida Department of Health, sent multiple cease and desist letters to local television stations threatening them with prosecution if they failed to take down an ad in which a woman named Caroline describes needing an abortion after a cancer diagnosis. The woman says that she would have been denied this medically necessary treatment under Florida’s Heartbeat Protection Act.

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Wilson threatened to prosecute the stations for continuing to air the ad under a provision of  the Florida Clean Air Act usually reserved for slaughterhouses and factories releasing effluent. His theory was that Caroline was lying about the Heartbeat Bill (she wasn’t), and that this lie harmed public health by leading women “to believe that such treatment is unavailable under Florida law, [so that] such women could foreseeably travel out of state to seek emergency medical care, seek emergency medical care from unlicensed providers in Florida, or not seek emergency medical care at all.”

Floridians Protecting Freedom (FPF), the group which pushed the ballot, sued in federal court to block the state, and Judge Walker granted the TRO through October 29.

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. 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.

In the meantime, Wilson has not only resigned his position with the Department of Health; he’s filed an affidavit claiming that the letter bearing his name came directly from the governor’s office; that he’d been instructed to hire outside counsel to actually sue the TV stations for running the ads; and that he’d resigned rather than obey a direct order to send further threatening letters.

It would probably be churlish to point out that Wilson knew damn well that the first letter was a gross violation of the First Amendment, and it didn’t seem to bother him until every major media outlet in the country picked up the story and started pointing out how wildly inappropriate it was. The important thing is he’s here now. And I think we’ve all learned a valuable lesson here. And that lesson is …

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… STREISAND EFFECT.

Because if Florida voters weren’t paying attention to this bill before, they sure are today.

Floridians Protecting Freedom v. Ladapo [Docket via Court Listener]

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

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