Florida health department defies First Amendment, threatens to prosecute TV stations for airing abortion rights ad

Last week, the Florida Department of Health sent letters to two local TV stations threatening to prosecute them for creating a “sanitary nuisance.” 

Had the stations dumped raw sewage in a river? Were they pumping noxious gas into the air? 

Not even close. The stations aired a political ad about Florida’s abortion law that state officials accused of being deceptive. The department’s letter is the latest example of a government agency coercing a private entity to censor First Amendment-protected speech — a phenomenon known as jawboning.

FIRE wrote its own letter to the Florida Department of Health today, calling on the department to remedy the constitutional nuisance it created by retracting its censorship demands.

The ad in question features a woman named Caroline from Tampa,  who talks about needing an abortion after she developed a brain tumor. In the ad, Caroline says Florida now bans abortions in cases like hers, and she urges viewers to vote in favor of a ballot provision that would overturn the state’s current abortion law.

The Florida Department of Health, however, took issue with the ad’s characterization of Florida’s current abortion law. In its letter to WFLA-TV, the agency claims the ad is “categorically false” and “dangerous.” The letter argues that the ad misinforms women about the availability of abortions for those experiencing life-threatening pregnancy complications, which in turn could “threaten or impair the lives of these women” if they then travel out of state to seek emergency medical treatment or if they seek emergency treatment from unlicensed providers. 

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The letter cites a Florida statute that says “the commission of any act . . . by which the health or life of an individual, or the health or lives of individuals, may be threatened or impaired” is considered a “sanitary nuisance.” Examples include “improperly treated human waste,” “noisome odors which are harmful to human or animal life,” and “unclean or filthy places where animals are slaughtered.” The agency cited its authority under the statute to bring criminal proceedings against “all persons failing to comply with notices to correct sanitary nuisance conditions.” 

The letter acknowledges that the TV station “enjoys the right to broadcast political advertisements under the First Amendment of the United States Constitution” but claims the station does not have the right to “disseminate false advertisements which, if believed, would likely have a detrimental effect on the lives and health of pregnant women in Florida.” 

In essence, Florida officials are claiming the TV stations distributed harmful misinformation by airing the ad. But the First Amendment makes no exception for what the state considers misinformation or disinformation, and the state has no authority to twist public health regulations to suppress constitutionally protected speech.

It doesn’t matter if the issue is COVID-19 or abortion. The government cannot be trusted with a general power to police the truthfulness of political discourse. 

Why? There are a few reasons:

• The truth is often incredibly hard to ascertain, consensus on an issue can change, and everyone — including government officials — makes mistakes. 
• Misinformation is a vague concept that can be applied to everything from flat-out lies to speech that might be missing context to rhetorical hyperbole and statements of opinion.
• Political biases and blindspots tend to shape our perception of whether something is dangerous misinformation.
• Government officials would have strong incentives to abuse this power to exclude viewpoints they disagree with from the public conversation.

That’s a recipe for selective and arbitrary enforcement and, ironically, suppression of true speech. The First Amendment provides a far superior framework by guaranteeing Americans’ right to hash out disagreements in the arena of public debate, free from government interference.

When state officials believe a political ad includes false information, they have options besides unconstitutionally threatening to prosecute media outlets that broadcast it.

The group that sponsored the ad, Floridians Protecting Freedom, strongly disputes the state’s characterization of the ad’s factual accuracy in its own letter to the TV stations. The group charges that the ad is true and that the wording of the law and the state’s narrow interpretation of its exceptions do prohibit abortions for patients like Caroline.

That debate should and must be allowed to play out. The danger of the government having the power to shut down debate on the meaning of the laws it passes cannot be overstated.

As FIRE explained in today’s letter, when state officials believe a political ad includes false information, they have options besides unconstitutionally threatening to prosecute media outlets that broadcast it. They can express disagreement with the ad’s message. They can explain to the public why they think it’s inaccurate. And they can promote media literacy. What they may not do is manipulate public debate using the threat of fines and imprisonment. 

FIRE requested a response from the Florida Department of Health by Oct. 24, confirming that the department has withdrawn its unconstitutional censorship demands.