U.S. District Courthouse for the Northern District of Florida, Tallahassee. Credit: Michael Moline
A federal judge fired back during a hearing Thursday morning at an attorney defending the DeSantis administration in the legal dispute over its threats to broadcasters airing an ad in support of the abortion-rights amendment.
Tallahassee U.S. District Judge Mark Walker asked Brian Barnes point-blank whether the ad at issue stated that Florida’s six-week ban lacks an exception to protect the life of the mother. Barnes, who represents Florida Surgeon General Joseph Ladapo in the suit filed by the sponsoring organization for Amendment 4, responded that the ad implied a lack of exceptions.
“I don’t want to waste my time with non-answers to my questions,” Walker said during their exchange about the ad’s contents.
Walker said he would rule Thursday afternoon on Floridians Protecting Freedom’s request for a temporary restraining order stopping the Florida Department of Health from coercing, threatening, or intimidating the organization or broadcasters for airing speech in favor of the amendment. Amendment 4 would forbid government interference in abortion access past viability, typically around 24 weeks, or to protect the life of the pregnant person.
The federal judge could put a stop to one of the ways in which Gov. Ron DeSantis has deployed state resources against Amendment 4, which needs at least 60% approval from voters to pass.
The group filed the case in the U.S. District Court for the Northern District of Florida on Wednesday following the health department’s Oct. 3 cease-and-desist letters to television stations running an ad from the Yes on 4 campaign.
Amendment 4 sponsor sues over DeSantis administration’s threat to broadcasters
State argues it’s a public safety matter
The DeSantis administration argues it didn’t violate First Amendment protections for political speech to threaten criminal prosecution of broadcasters playing the ad featuring a woman diagnosed with brain cancer. At least one station, WINK TV in Fort Myers, stopped airing the ad after receiving the letter, according to the complaint from Amendment 4’s organizer.
In the ad, a woman named Caroline says Florida’s abortion restrictions would have prevented her from getting an abortion had they been in place when she began chemotherapy.
Barnes argued the ad put other women at risk because Caroline’s statement might dissuade them from seeking medical attention for a pregnancy complication, Barnes said.
He insisted the state would also have interest in stopping a theoretical commercial stating that the 911 emergency line is not working.
“How in the world would a political ad supporting a political amendment constitute commercial speech?” Walker responded to Barnes’ hypothetical scenario.
Barnes also argued that Floridians Protecting Freedom lacked standing to sue because it couldn’t prove injury, since it continued playing the ad elsewhere and hadn’t stopped its campaign in support of the amendment.
Hefty litigation budger
The organization entered as evidence two contracts showing the health department hired law firms to pursue litigation against the political advertisements. The department contracted the firms on Oct. 10 and agreed to pay a combined $1.4 million dollars, according to the documents.
Those contracts demonstrate that the state’s threats against broadcasters are not hollow, said Ben Stafford, one of the plaintiffs’ attorneys.
Stafford called the DeSantis administration’s tactic the “most egregious First Amendment violation” he could remember.
Meanwhile, Floridians Protecting Freedom faces a suit from anti-abortion advocates asking a state trial court to remove Amendment 4 from the ballot. The plaintiffs in that Orange County case are fighting the legitimacy of the signatures collected to get the question in front of voters.
Their complaint cites an Oct. 11 preliminary report from the Florida Department of State accuses Floridians Protecting Freedom of “widespread election fraud.” The Florida Agency for Health Care Administration is also involved in the disputes between the governor and Floridians Protecting Freedom. In September, the agency published a webpage claiming Amendment 4 “threatens women’s safety.”
The Florida Supreme Court and a state trial court in Tallahassee allowed the webpage to stay live.