Florida Censors Pro-Abortion Rights TV Ads

Under Gov. DeSantis’ administration, Florida has become a laboratory for state censorship.

Florida Governor Ron DeSantis speaks after signing three education bills on the campus of New College of Florida in Sarasota, Fla. on Monday, May 15, 2023. (Photo by Thomas Simonetti for The Washington Post via Getty Images)

Under Gov. Ron DeSantis, Florida has become the epicenter of an alarming assault on core American freedoms, with free speech in the cross hairs. From schools to universities to private business, DeSantis’ administration seems bent on dismantling the pillars of the First Amendment.

This month, the Florida Health Department continued this trend by threatening several Florida television stations, including a Tampa outlet, for airing an advertisement supporting Amendment 4, an abortion rights amendment on the ballot this November. The stations were ordered to take down the ads within 24 hours or face civil and criminal penalties.

The Health Department’s justification: An absurd argument that a state law regarding “sanitary nuisances,” commonly used to deal with “overflowing septic tanks” and “improper garbage disposal,” allows it to suppress speech that the state has deemed false.

But the Constitution does not bend so easily. In a temporary restraining order, Judge Mark Walker wrote, “The government cannot excuse its indirect censorship of political speech simply by declaring the disfavored speech is ‘false,’ To keep it simple for the state of Florida: it’s the First Amendment, stupid.”

Even if, as the state claims, this advertisement is misleading or false—and pro-choice advocates say otherwise—the answer is not to suppress speech. More than 20 years ago in Lorillard Tobacco Co. v. Reilly, Justice Clarence Thomas confirmed the same in regards to restrictions concerning tobacco advertisements. Despite the clear and present health risks associated with tobacco, Justice Thomas quoted Justice Louis Brandeis’ concurring opinion from 1927, noting that if the state’s “concern is that tobacco advertising communicates a message with which it disagrees, it could seek to counteract that message with ‘more speech, not enforced silence.’“

Lorillard is notable because the protection it afforded a product advertisement—the First Amendment offers even stronger protection to the Amendment 4 ad, since the state is targeting protected political speech. This type of overreach is precisely what the First Amendment was designed to prevent; the government cannot suppress speech simply because it doesn’t like it.

This is far from an isolated incident.

Under DeSantis’ administration, Florida has become a laboratory for state censorship. The Stop WOKE Act, which seeks to silence discussions on race and gender, and the expanded “Don’t Say Gay” bill, were both designed to muzzle perspectives disfavored by state leaders. Florida also has the unfortunate distinction of leading the nation in book banning in public schools.

This type of overreach is precisely what the First Amendment was designed to prevent; the government cannot suppress speech simply because it doesn’t like it.

Before Florida initiated this wave of censorship, it would have seemed unthinkable for a state to veer so far off the Constitutional path.

This current attack on political speech is not only part of this larger pattern of censorship, it also represents another transparent example of Florida leadership using taxpayer funds to promote its own political agenda while suppressing contrary viewpoints.

While the state has an obligation to provide factual health information and resources—especially in the event of an actual “sanitary nuisance”—it is prohibited from using taxpayer funds to “support,” “oppose,” or “affect the results” of an issue in a partisan election. But once again, the state is disregarding critical legal guardrails. The Florida Department of Health is hosting a website specifically advocating against Amendment 4, including such partisan warnings as “don’t let the fear mongers lie to you.”

Judge Walker is right: in a fundamental way, these assaults on the First Amendment are just plain stupid. But they are also deeply disturbing. If we can’t protect core tenets of our democracy, how do we expect it to last?

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About

Katie Blankenship, a lawyer, is the senior director of PEN America Florida.