First Amendment Rights for Everyone Except Abortion Supporters

Floridians have the option to protect abortion during this election by voting “yes” on Amendment 4, which reads, “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.” But apparently, Florida Governor Ron DeSantis doesn’t want Floridians to hear arguments in favor of the measure.

Currently, abortion is prohibited after six weeks in the state, making it all but inaccessible, as few women know they are pregnant that early. Exceptions for rape and incest are available until 15 weeks, but access depends on “documentation.” And, as in other states where exceptions for the patient’s health exist, confusion and fear of legal action mean care isn’t always forthcoming.

But Floridians Protecting Freedom (FPF), the coalition supporting the adoption of Amendment 4, had to go to court last week to protect its ability to run ads in support of the measure. They sued Florida’s state health department in federal court, alleging it shut down a television ad they placed.

In the ad, a woman identified as Caroline from Tampa, Florida, explains she was diagnosed with brain cancer while pregnant. “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,” she says, adding, “Florida has now banned abortion even in cases like mine.”

That’s where things got dicey. We’re used to political battles over what laws a state should adopt when it comes to abortion, but here, the state of Florida injected itself into the election, using state agencies and state funding to try and prevent the measure from passing. The Florida health department sent cease-and-desist letters to local news stations to keep them from running the ad. A University of North Florida poll indicates that 60% of voters support Amendment 4. That is both the threshold of votes in favor it would need to become law and a number that could have interesting implications for the presidential race in Florida.

The First Amendment prohibits the government from placing prior restraints on speech, and core political speech, like the debate over adopting a constitutional amendment, is highly protected. Jessica Rosenworcel, the Federal Communications Commission chair, condemned the cease-and-desist letters, saying, “The right of broadcasters to speak freely is rooted in the First Amendment. Threats against broadcast stations for airing content that conflicts with the government’s views are dangerous and undermine the fundamental principle of free speech.”

The cease-and-desist letters were signed by John Wilson, who was the general counsel for the health department until he resigned several days after sending the letters. Today we learned more when he filed an affidavit in the case, where he swore under oath that Governor Ron DeSantis’ office ordered him to send out the letters and that he subsequently resigned rather than send out more of them. This would seem to put responsibility squarely on the governor’s doorstep.

A federal judge has already issued a temporary restraining order that prevents the state from sending additional letters. Chief Judge Mark Walker in the Northern District of Florida wrote in his order that the state had engaged in “unconstitutional coercion.” Judge Walker wrote, “Whether it’s a woman’s right to choose, or the right to talk about it, the First Amendment prohibits the State of Florida from trampling” on the First Amendment rights of freedom of choice advocates.

DeSantis, who clearly has higher political ambitions, although he failed to best Donald Trump in the Republican primary, is rightly viewed as an archconservative. That’s his right, and it’s the right of Florida voters to elect him if they choose to. But what he can’t do is use his state authorities—and taxpayer dollars—to advance his own political agenda in violation of the First Amendment. At this juncture, the courts have reined him in. That’s something we need more of—courts constraining unlawful behavior by politicians before they get too far down the road with it. But for all the focus on the presidential race, it’s clear that the culture Trump has enabled extends beyond him and that restoring democracy after the election will involve work that extends beyond Washington, D.C.

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We’re in this together,

Joyce