The Volokh Conspiracy
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Court Holds the First Amendment Bars Florida from Threatening Media with Criminal Punishment for Spreading Supposed Health-Related Disinformation
The ACLU’s wise decision to defend the NRA in NRA v. Vullo bears fruit.
From Chief Judge Mark Walker's opinion today in Floridians Protecting Freedom, Inc. v. Ladapo:
Floridians will vote on six proposed amendments to their state constitution this election cycle, including Amendment 4, titled "Amendment to Limit Government Interference with Abortion." Voting has already begun.
The State of Florida opposes Amendment 4 and has launched a taxpayer-funded campaign against it. Floridians Protecting Freedom, Inc., the Plaintiff in this case, has launched its own campaign in favor of Amendment 4.
Plaintiff does not challenge the State's right to spend millions of taxpayer dollars opposing Amendment 4. The rub, says Plaintiff, is that the State has crossed the line from advocating against Amendment 4 to censoring speech by demanding television stations remove Plaintiff's political advertisements supporting Amendment 4 or face criminal prosecution.
Plaintiff's argument is correct. 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. The government cannot excuse its indirect censorship of political speech simply by declaring the disfavored speech is "false." "The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion." "In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us." To keep it simple for the State of Florida: it's the First Amendment, stupid….
Plaintiff is a Florida corporation and political committee sponsoring Amendment 4. Plaintiff has actively advocated for the passage of Amendment 4 during this year's general election and against arguments made by those who oppose Amendment 4. To that end, on October 1, 2024, Plaintiff began running an advertisement called "Caroline" on several TV stations across the state, in which a woman recalls her decision to have an abortion in Florida in 2022. She states that she would not be able to have an abortion for the same reason under the current law.
Shortly after the ad began running, John Wilson, then general counsel for the Florida Department of Health, sent letters on the Department's letterhead to Florida TV stations. The letters assert that Plaintiff's political advertisement is false, dangerous, and constitutes a "sanitary nuisance" under Florida law. The letter informed the TV stations that the Department of Health must notify the person found to be committing the nuisance to remove it within 24 hours pursuant to section 386.03(1), Florida Statutes. The letter further warned that the Department could institute legal proceedings if the nuisance were not timely removed, including criminal proceedings pursuant to section 386.03(2)(b), Florida Statutes. Finally, the letter acknowledged that the TV stations have a constitutional right to "broadcast political advertisements," but asserted this does not include "false advertisements which, if believed, would likely have a detrimental effect on the lives and health of pregnant women in Florida." At least one of the TV stations that had been running Plaintiff's advertisement stopped doing so after receiving this letter from the Department of Health.
The court concluded that this violated the First Amendment:
At the hearing, Defendant led with the argument that laws of general applicability are immune from First Amendment challenge. Nonsense. The line of cases Defendant cites to support this dubious argument are readily distinguishable from this case. Defendant's cases addressed a different issue—namely, whether enforcement of a law of general applicability against the press, which incidentally affects the press's ability to gather and report the news, offends the First Amendment. That is not this case. The issue here is whether the State can censor core political speech under the guise that the speech is false and implicates public health concerns. When state action "burdens a fundamental right such as the First Amendment, rational basis yields to more exacting review." With limited exceptions not applicable here, a government restriction on speech is subject to strict scrutiny if it is content based.
{A few "limited categories of speech are traditionally unprotected—obscenity, fighting words, incitement, and the like." "But what counts as unprotected speech starts and ends with tradition—'new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.'"But Defendant has not demonstrated that the political speech at issue falls within any of these categories. It is not commercial speech subject to a more relaxed standard permitting some government regulation, nor is it obscene, nor is it inciting speech that will imminently lead to harm to the government or the commission of a crime.
Defendant argues this is dangerous and misleading speech that could cause pregnant women harm in Florida. But there is no "general exception to the First Amendment for false statements." United States v. Alvarez (2012) (plurality opinion). Falsity alone does not bring speech outside the First Amendment absent some other traditionally recognized, legally cognizable harm. That is because "it is perilous to permit the state to be the arbiter of truth." Alvarez (Alito, J., dissenting).
Defendant seeks to fit a square peg into a round hole by suggesting that Plaintiff's speech is unprotected because it poses an "imminent threat" to public health. But this argument fails too. Speech is unprotected as an "imminent threat" when it incites or produces imminent lawless action, or poses a clear and present danger by bringing about the "substantive evils" that the government has a right to prevent, like obstacles to military efforts, obscenity, acts of violence, and charges to overthrow the government. But there is no suggestion that Plaintiff's ad would bring about the "substantive evils" that the Supreme Court has recognized, nor is there any suggestion that Plaintiff's ad would cause individuals to take any imminent lawless action.}
Government regulation of speech is content based if a law "applies to particular speech because of the topic discussed or the idea or message expressed." A "reliable way" to assess whether a regulation is content based is to ask "whether enforcement authorities must examine the content of the message that is conveyed to know whether the law has been violated." The government engages in "the greatest First Amendment sin"—viewpoint discrimination—when it targets not just a subject matter, but "particular views taken by speakers" on that subject matter.
By threatening criminal proceedings for broadcasting 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," Defendant has engaged in viewpoint discrimination. The letter sent by the Department of Health to broadcasters claimed that Plaintiff's ad violated Florida's sanitary nuisance statute because, "if believed, [it] would likely have a detrimental effect on the lives and health of pregnant women in Florida." Defendant would not be able to conclude that the ad may have a detrimental effect on the lives and health of pregnant women in Florida without reference to the particular view taken by the speaker—namely, that "Florida has now banned abortion even in cases like mine."
Even if the Department of Health's actions here did not amount to viewpoint discrimination, where a government uses the "threat of invoking legal sanctions and other means of coercion … to achieve the suppression" of disfavored speech, it functionally creates "a system of prior administrative restraints" that bears "a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan (1963). A government official "cannot do indirectly what [he] is barred from doing directly: … coerce a private party to punish or suppress disfavored speech on [his] behalf." NRA v. Vullo (2024). The present case bears all the hallmarks of unconstitutional coercion that the Supreme Court identified in Bantam Books and Vullo.
First, Defendant has enforcement authority that would cause a reasonable person to perceive their official communication as coercive. As cited in the letter, the Department of Health has the authority, if an identified nuisance is not removed within 24 hours, to institute criminal proceedings against all persons failing to comply. Second, the communication can reasonably be understood as a threat. While the "threat need not be explicit," here it was all but: the letter quoted Plaintiff's ad, labeled it as dangerous, suggested that it could threaten the health of women in Florida, identified any act that could threaten or impair the health of an individual as a "sanitary nuisance," and noted the Department's power under Florida law to criminally prosecute all persons who failed to remove a sanitary nuisance within 24 hours. A reasonable person would have no trouble connecting the dots to identify this as a threat. Finally, the reaction from one broadcaster to cease airing the ad after receiving the letter is further evidence of its coercive nature.
{When asked why this case was not governed by Vullo, Defendant's response was that Vullo concerned the state exercising its regulatory authority "in an effort to stop the NRA from engaging in constitutionally protected speech." But "the difference here," he argued, is that "the specific words being expressed" in this case don't fall "within the ambit of the First Amendment." But that is beside the point. In Bantam Books, on which Vullo relied, the state threatened enforcement on the basis that the speech was allegedly obscene—which the Supreme Court acknowledged was "not within the area of constitutionally protected speech or press." Here, as discussed above, Defendant has not even shown that the speech falls within one of the "traditionally unprotected" categories, let alone that such a distinction would remove this case from the ambit of Vullo and Bantam Books.}
To overcome the presumption of unconstitutionality, Defendant must show that his actions were narrowly tailored to serve a compelling government interest. This is a high bar in any case, and so here. Even assuming arguendo that Plaintiff's advertisement is "categorically false," and that countering it is a compelling government interest, Defendant's actions are not narrowly tailored. As the Supreme Court identified in Alvarez, the narrowly tailored solution to alleged falsehoods is counterspeech. That is because the First Amendment embodies a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open."
{As discussed above, Defendant's actions are presumptively unconstitutional whether analyzed as viewpoint discrimination or unconstitutional coercion to suppress speech. Viewpoint discrimination may be per se unconstitutional, Honeyfund.com, Inc. v. Governor (11th Cir. 2024), but at a minimum, it is subject to strict scrutiny. The Supreme Court in Bantam Books declared that coercive threats created a system of prior restraint bearing a heavy presumption of unconstitutionality but did not identify a standard of review. Vullo, considered at the motion-to-dismiss stage, simply stated that "a government entity's 'threat of invoking legal sanctions and other means of coercion … to achieve the suppression' of disfavored speech" violates the First Amendment. Because the Supreme Court has not clearly identified the standard of review applicable to these cases, this Court applies strict scrutiny.}
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." Under the facts of this case, the First Amendment prohibits the State of Florida from trampling on Plaintiff's free speech.
See also my post from last week on this case.
Note that NRA v. Vullo, the 2024 Supreme Court precedent on which the court relied, was argued by David Cole of the ACLU (representing the NRA); the petition was filed by the Brewer Law Firm and by me. I think the visible ACLU-NRA / left-right alliance helped the NRA prevail, but also, as this case illustrates, helped ACLU in its broader agenda. The underlying principle—that the First Amendment limits the government's power to deter speech by threatening intermediaries (banks or insurance companies in NRA v. Vullo, TV stations here)—protects all speech, whether the NRA's pro-gun-rights speech or pro-abortion-rights speech such as that of the plaintiffs here.
Christina Ford, Emma Olson Sharkey, Daniel Tilley, Samantha Past, and Nicholas Warren (ACLU Foundation of Florida), Ben Stafford and Renata O'Donnell (Elias Law Group LLP), and Jennifer Blohm (Meyer, Blohm and Powell, P.A.) represent plaintiffs.
