Florida threatens TV executive with jail time for airing ad in support of abortion rights

This November, Florida residents will decide whether to amend their state constitution to protect reproductive rights, overturning the state's near-total abortion ban after six weeks of pregnancy. If Amendment 4 passes, the following text would be added to the Florida Constitution: "No law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider." 

The primary group supporting Amendment 4, Floridians Protecting Freedom, is running television ads supporting its passage. One such ad is a first-personal narrative of a woman named Caroline who was diagnosed with brain cancer while pregnant with her second child. "The doctors knew that if I did not end my pregnancy, I would lose my baby, I would lose my life, and my daughter would lose her mom," Caroline says in the ad. "Florida has now banned abortion, even in cases like mine." Caroline urges voters to support Amendment 4 to "protect women like me." 

On October 3, the Florida Department of Health sent a letter to Mark Higgins, the General Manager of WFLA, Tampa's NBC affiliate. The letter, sent by Florida Department of Health General Counsel John Wilson, claimed that airing the ad violates Florida law. Wilson cites Florida's law against "sanitary nuisance," which prohibits "the commission of any act… by which… the health and lives of individuals… may be endangered." Wilson argues that WFLA's decision to air the ad could "threaten or impair the health and lives of women." Wilson advised Higgins that, now that he has been notified that the ad is creating a "sanitary nuisance," WFLA must stop airing it within 24 hours. Failure to do so, Wilson writes, would be a crime punishable by up to 60 days in prison under Florida law. The letter was first reported by investigative reporter Jason Garcia. 

Aaron Terr, Director of Public Advocacy for the Foundation for Individual Rights and Expression (FIRE), a non-profit dedicated to preserving free speech, told Popular Information that the Florida Department of Health letter stretches "the meaning of sanitary nuisance beyond recognition." The statute deals with issues like "untreated or improperly treated human waste," "[t]he keeping of diseased animals," and the "causing of any condition capable of breeding flies, mosquitoes, or other arthropods capable of transmitting diseases." While the statute includes a catch-all for "any other condition determined to be a sanitary nuisance," there is no mention of political ads.

But assuming for the sake of argument that Florida's "sanitary nuisance" law applies, how does airing an ad supporting abortion rights endanger women? Wilson argues that the ad is "categorically false" because Florida law allows abortion after six weeks if "two physicians certify in writing that, in reasonable medical judgment, the termination of the pregnancy is necessary to save the pregnant woman's life or avert a serious risk of substantial and irreversible physical impairment." The suggestion that life-saving abortion care is not available in Florida, Wilson argues, could cause women to seek care from "unlicensed providers."

Floridians Protecting Freedom, in an October 4 letter to WFLA, rejects the Florida Department of Health's contention that the ad is false. In the letter, Floridians Protecting Freedom notes that Caroline "was diagnosed with Stage 4 brain cancer at 20 weeks pregnant" and "the diagnosis was terminal." Florida's Agency for Health Care Administration (AHCA) has advised that abortion is permitted after six weeks of pregnancy only if there is "an immediate threat to the pregnant person's life." The AHCA has said that premature rupture of membranes, ectopic pregnancy, and molar pregnancy meet that standard. None of those exceptions applied to Caroline. 

Moreover, 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. 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." The letter from Floridians Protecting Freedom calls the DeSantis administration's efforts "a textbook example of government coercion that violates the first amendment." 

The Chair of the Federal Communications Commission (FCC), Jessica Rosenworcel, agrees. "The right of broadcasters to speak freely is rooted in the First Amendment," Rosenworcel said in a statement released Tuesday. "Threats against broadcast stations for airing content that conflicts with the government’s views are dangerous and undermine the fundamental principle of free speech.”

The DeSantis administration is spending taxpayer dollars on political ads opposing Amendment 4

The DeSantis administration is also diverting taxpayer money to run ads defending its current abortion laws and opposing Amendment 4. The ads stress that women cannot go to jail for getting an abortion, that abortion is still available in Florida during the first six weeks of pregnancy, and that there are exceptions for rape and incest. 

The ads, produced by the AHCA, refer people who want “accurate information about all your options” to a state-run website. The website, also created using taxpayer funds, tells users not to “let the fearmongers lie to you.” The website states that “Current Florida Law Protects Women, Amendment 4 Threatens Women’s Safety.” It also argues that Amendment 4 “threatens to expose women and children to health risks which the Florida Legislature has spent years working to mitigate.” 

The website says that the “[t]ruth” is that Amendment 4 will cause the Florida Legislature to “lose the ability to protect basic, common-sense health care regulations.” It claims that, if Amendment 4 passes, Florida will become an "abortion tourism destination state.” 

Florida Governor Ron DeSantis (R) claims that the AHCA website is “not political,” and gives citizens “factual information” about the ballot initiative. “Everything that is put out is factual. It is not electioneering,” DeSantis said at a press conference. “I am glad they are doing it.” 

In September, the American Civil Liberties Union (ACLU) of Florida and the Southern Legal Counsel filed a lawsuit to block the website on behalf of Floridians Protecting Freedom, arguing that the AHCA is disseminating “false, inflammatory, and misleading information.” The lawsuit alleges that the ads and website “misrepresent what the Amendment would do, make allegations that are explicitly refuted by the language of the Amendment itself, and mislead through both inaccurate statements and through omission of countervailing information.” 

The lawsuit also argues that the website contains “multiple statements that lead only to the conclusion that AHCA is using its official authority or influence for the purpose of interfering with an election, or to influence votes,” which is a violation of state law. A Florida circuit judge denied the ACLU's request for an injunction against the ads and the website last week.

The right-wing "financial impact statement" attached to Amendment 4

Also appearing on the ballot next to Amendment 4 is a financial impact statement. In June, a state court judge ordered a panel of budget experts to revise a financial impact statement to appear with the ballot initiative. Florida Republicans, however, managed to fill the panel of experts with anti-abortion advocates. The panel included a research fellow from the right-wing Heritage Foundation, who was placed on the panel by Florida House Speaker Paul Renner (R). DeSantis also put “his longtime budget adviser” on the panel, “who brought in an anti-abortion professor from the Catholic University of America as an adviser.” 

The statement claims the “proposed amendment would result in significantly more abortions and fewer live births per year” and that there is “uncertainty about whether the amendment will require the state to subsidize abortions with public funds.” The statement also asserts that more permissive abortion laws “may negatively affect the growth of state and local revenues over time.” DeSantis argues that the financial impact statement “provides some clarity" to voters.

Lawyers for Floridians Protecting Freedom filed a petition to remove the financial impact statement from the ballot. The Florida Supreme Court rejected the request.