Floridians Protecting Freedom's
ad is designed to build support for Amendment 4, which if approved by voters next month would alter the Florida Constitution to outlaw pre-viability prohibitions on abortion care, including Republican Gov. Ron DeSantis' six-week ban, which took effect earlier this year and has already been shown to harm patients.
The 30-second ad features a Tampa resident who was diagnosed with brain cancer while pregnant. Caroline, who already had one child at the time, says that "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," explains Caroline, who
received abortion care in 2020, before the U.S. Supreme Court reversed Roe v. Wade and enabled bans like the one signed by DeSantis. "Amendment 4 is gonna protect women like me. We have to vote yes."
Florida journalist Jason Garcia
revealed Monday that last week, John Wilson, general counsel at the state Department of Health (DOH), wrote to WFLA-TV vice president and general manager Mark Higgins, claiming that the ad contains information that is "categorically false" and constitutes a "sanitary nuisance," which could lead to criminal proceedings if it is not removed.
As
HuffPost reported Tuesday:
It's unclear if the agency only sent the letter to the NBC affiliate, or to others as well. Either way, a threat like this could have a chilling effect on publicly advocating for the pro-choice measure, just weeks away from when it will be in front of voters. Florida's Department of Health did not respond to HuffPost's request for comment.
The sanitary nuisance law is meant to curb conditions that can threaten or impair Floridians' health. It normally pertains to issues like overflowing septic tanks and problematic garbage disposals.
Attorneys for Floridians Protecting Freedom swiftly sent a letter to WFLA leaders, arguing that the DOH interjection "raises serious First Amendment concerns—indeed, it reflects an unconstitutional attempt to coerce the station into censoring protected speech," and "the advertisement is true."
The DOH letter "vaguely outlines the limited instances where abortions are allowed in Florida but fails to provide any evidence showing that Caroline's statements are false," the lawyers wrote. "Caroline was diagnosed with stage four brain cancer when she was 20 weeks pregnant; the diagnosis was terminal."
Florida's ban has limited exceptions for abortions after six weeks—before many people even know they are pregnant. In cases of rape and incest, patients can receive care up to 15 weeks, if they can manage the burdensome paperwork. Abortions to protect the health or life of a pregnant person require two physicians to assert in writing that such care is necessary.
"The only instances where the Agency for Health Care Administration has provided guidance that abortions are permitted after six-weeks' gestation are when there is an immediate threat to the pregnant person's life," the lawyers noted. "Caroline's diagnosis was terminal. Practically, that means that an abortion would not have saved her life, only extended it. Florida law would not allow an abortion in this instance."
The group of attorneys is far from alone in criticizing the Florida DOH's attempt to get the ad off the air. Aaron Terr, director of public advocacy at the Foundation for Individual Rights and Expression (FIRE), told Popular Information that the department's letter stretches "the meaning of sanitary nuisance beyond recognition."
"Terr told Popular Information that even if the ad was false and violated Florida's sanitary nuisance law, the enforcement of the law against a political ad would be unconstitutional," the outlet added. "Terr notes that the First Amendment contains 'no general exception for false speech or misinformation, and that's because of the danger of the government having a general power to dictate what is true or false, especially when it comes to political speech.'"
As Slate's Mark Joseph Stern reported Monday:
Rebecca Tushnet, a professor at Harvard Law School and a First Amendment specialist, told me that the DeSantis administration's threat is "about as blatant a violation of the First Amendment as you'll see."
Jennifer Safstrom, director of the First Amendment Clinic at Vanderbilt Law School, condemned the administration's letter as an unconstitutional "weaponization of state law to suppress speech" that's "designed to have a chilling effect on advocates during a time critical to voter outreach." Alexander Tsesis, a professor at the Florida State University College of Law, said it seemed "absurd to threaten prosecution," and pointed out that stations' own "editorial decisions" are protected by the First Amendment. Ciara Torres-Spelliscy, a professor at Stetson Law, called the incident yet another episode in DeSantis' "long recent history of violating the First Amendment with abandon."
Seth Stern, director of advocacy of Freedom of the Press Foundation, similarly said in a Wednesday statement that "this is the latest proof that there is no limit to how low DeSantis will stoop to censor free speech and punish dissent."
"It comes on the heels of his efforts to rewrite defamation law to make it easier for the rich and powerful to bankrupt their critics, his Stop WOKE Act stunt, and other similarly unconstitutional nonsense," Stern noted. "A governor who is confident in his policies and secure in his leadership would welcome debate and correct statements he believes are misleading rather than trying to weaponize trash disposal laws against the free press."
"But DeSantis is not that governor. His administration's conduct would be silly if it weren't such a transparent bully tactic," he added. "Floridians care about the First Amendment, which is why DeSantis' outrageous censorship campaigns keep failing. We hope the news outlets he targets will not only ignore him but loudly shame him."
The governor has come under fire for various actions throughout the fight for Amendment 4. As Garcia highlighted on social media, while targeting Caroline's ad, "the DeSantis administration is running taxpayer-funded television commercials attacking Amendment 4 on ESPN, CNN, Fox News, The Weather Channel, and more."
The ads are part of what the ACLU of Florida has called an "unconstitutional misinformation campaign," which also includes a government website. Additionally, as Common Dreams reported last month, multiple state residents have had law enforcement come to their homes to confirm that they signed the petition to get Amendment 4 on the ballot.
