The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
State Threatens Media with Criminal Punishment for Spreading Supposed Health-Related Disinformation
From a letter sent by the Florida Department of Health General Counsel to a television station about this ad that supports Florida's Amendment 4:
The Florida Department of Health has been notified that your company is disseminating a political advertisement claiming that current Florida law does not allow physicians to perform abortions necessary to preserve the lives and health of pregnant women.
{The advertisement is displayed on the home page of the Amendment sponsor's website under the title "Caroline." See https://floridiansprotectingfreedom.com/. The woman featured in the advertisement states: "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."}
This claim is categorically false. Florida's Heartbeat Protection Act does not prohibit abortion if a physician determines the gestational age of the fetus is less than 6 weeks. § 390.0111(1), Fla. Stat. After 6 weeks, an abortion may be performed 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." § 390.0111(1)(a), Fla. Stat. The two-physician requirement is waived in the case of an emergency medical procedure. § 390.011(1)(b), Fla. Stat. And while 'physicians must exercise professional skill, care, and diligence to preserve the life and health of a fetus in the third trimester, "if preserving the life and health of the fetus conflicts with preserving the life and health of the pregnant woman, the physician must consider preserving the woman's life and health the overriding and superior concern." § 390.0111(4), Fla. Stat.
The advertisement is not only false: it is dangerous. Women faced with pregnancy complications posing a serious risk of death or substantial and irreversible physical impairment may and should seek medical treatment in Florida. However, if they are led to believe that such treatment is unavailable under Florida law, 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. Such actions would threaten or impair the health and lives of these women.
Under section 386.01, Florida Statutes, "the commission of any act, by an individual, municipality, organization, or corporation … by which the health or life of an individual, or the health or lives of individuals, may be threatened or impaired" constitutes a "sanitary nuisance." The Department of Health, upon determining the existence of such nuisance, must notify the person or persons committing the nuisance "to remove or cause to be removed the same within 24 hours." § 386.03(1), Fla. Stat. If the nuisance is not removed within the time prescribed, the Department is authorized to institute legal proceedings under section 381.0012, Florida Statutes, to obtain an injunction. § 386.03(2)(c), Fla. Stat. The Department is further authorized to "[i]nstitute criminal proceedings in the county court in the jurisdiction of which the condition exists against all persons failing to comply with notices to correct sanitary nuisance conditions." § 386.03(2)(b), Fla. Stat. Creating, keeping, or maintaining a nuisance injurious to health is a second-degree misdemeanor. § 386.051, Fla. Stat.
While your company enjoys the right to broadcast political advertisements under the First Amendment of the United States Constitution and Article I, section 4 of the Florida Constitution, that right does not include free rein to disseminate false advertisements which, if believed, would likely have a detrimental effect on the lives and health of pregnant women in Florida.
The state's theory is thus apparently that it's criminal for people to spread false information about state law that could lead to danger to life or health.
I don't think that's consistent with the First Amendment, even if limited to knowingly false statements of fact. The Supreme Court has held that "prosecutions for libel on government have [no] place in the American system of jurisprudence," regardless of whether the government thinks it can show that the statements are knowingly false: Even outright lies that damage the government's reputation are thus constitutionally protected. Likewise, the 3-Justice dissent in U.S. v. Alvarez concluded that,
[T]here are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern would present such a threat. The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth.
And the 2-Justice concurrence in Alvarez endorsed this view. I would say that, under this rationale, the government can't suppress statements about the law, even if it thinks they are knowingly false, and even if the statements might lead some people to do something that undermines their health.
Recent laws dealing with misinformation in election campaigns have likewise been struck down after Alvarez. See Susan B. Anthony List v. Driehaus, 814 F.3d 466 (6th Cir. 2016); Commonwealth v. Lucas, 472 Mass. 387 (2015); 281 Care Comm. v. Arneson, 766 F.3d 774 (8th Cir. 2014); State ex rel. Public Disclosure Comm'n v. 119 Vote No! Comm., 135 Wash.2d 618 (1998). (Some decisions upheld such laws, but they came before Alvarez. In re Chmura, 608 N.W.2d 31 (Mich. 2000); State v. Davis, 27 Ohio App. 3d 65 (1985).)
To be sure, in some areas, the law can indeed police misinformation (especially knowing lies). Most obviously, if a doctor gives a patient false information that's potentially damaging to the patient's health, the doctor could be held liable for malpractice if harm results, and could be disciplined by the medical board even if harm doesn't result. Likewise, knowing lies about people or businesses can be punished under libel law and related doctrines.
Finally, the federal government has long been seen as having greater authority over broadcast television and radio (for instance, as to profanity or as to the Fairness Doctrine), and the FCC has taken the view that this extends to at least some sort of knowing falsehoods: The "broadcast hoaxes rule" provides,
(a) No licensee or permittee of any broadcast station shall broadcast false information concerning a crime or a catastrophe if:
(1) The licensee knows this information is false;
(2) It is foreseeable that broadcast of the information will cause substantial public harm, and
(3) Broadcast of the information does in fact directly cause substantial public harm.
(b) Any programming accompanied by a disclaimer will be presumed not to pose foreseeable harm if the disclaimer clearly characterizes the program as a fiction and is presented in a way that is reasonable under the circumstances.
(c) For purposes of this rule, "public harm" must begin immediately, and cause direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties. The public harm will be deemed foreseeable if the licensee could expect with a significant degree of certainty that public harm would occur. A "crime" is any act or omission that makes the offender subject to criminal punishment by law. A "catastrophe" is a disaster or imminent disaster involving violent or sudden event affecting the public.
But, as the Federal Communications Commission (which enforces this rule) has noted, "the Commission does not—and cannot and will not—act as a self-appointed, free-roving arbiter of truth in journalism. Even assuming for the sake of argument that Free Press's assertions regarding any lack of veracity were true, false speech enjoys some First Amendment protection, and section 326 of the Communications Act, reflecting First Amendment values, prohibits the Commission from interfering with freedom of the press or censoring broadcast communications…. [T]he Commission has applied [the broadcast hoaxes] rule narrowly in light of the substantial First Amendment concerns involved with the federal government policing the content of broadcast news."
And whatever the permissible scope of such regulations might be, the Florida Department of Health position seems to go far outside them. It applies not just to doctor-patient speech but to political advocacy aimed at the public. It applies not just to broadcasting (which in any case is generally governed by federal regulations, not state ones) but to all media. And indeed, if the Florida statute to which it's appealing is read to cover speech, it wouldn't even be limited to false statements, but could cover true statements and statements of opinion, if their spread might "threaten[] or impair[] people's "health or lives." The Department's action thus seems like an unconstitutional attempt to regulate political advocacy.
