UPDATE: "It's the First Amendment, Stupid"

An advertisement by Floridians Protecting Freedom (Screenshot/YouTube)

Earlier this month, Popular Information reported that the Florida Department of Health had threatened TV executives with jail time if they continued to run an ad supporting a ballot initiative to protect reproductive rights in the state. The threat, sent by Florida Department of Health General Counsel John Wilson, claimed the ads by Floridians Protecting Freedom (FPF) violated Florida's law against "sanitary nuisance." It was a creative legal interpretation, considering that law 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." 

In response, FPF sent a response to TV executives asserting the efforts by Florida to get the ad pulled were "a textbook example of government coercion that violates the First Amendment." Nevertheless, the gambit reportedly convinced WINK TV, a CBS affiliate in Southwest Florida, to stop running the ad.

As it turns out, it wasn't only FPF who believed the Florida Department of Health's letter was inappropriate. Wilson, who signed the letter, decided to resign as General Counsel of the Florida Department of Health on October 10 rather than continue to be involved in the intimidation campaign. 

According to an affidavit by Wilson first reported by the Tampa Bay Times, top deputies for Florida Governor Ron DeSantis (R) gave Wilson pre-written letters "and told [him] to send them under his own name." In the affidavit, Wilson said that he "resigned from my position as general counsel in lieu of complying with directives… to send out further correspondence to media outlets."

Wilson notes that, prior to resigning, he was directed to contract with outside law firms to continue "enforcement proceedings" against television stations that ran the ads. Those contracts will cost Florida taxpayers $1.4 million.

Wilson's affidavit was submitted as part of litigation by FPF against Florida to stop them from coercing TV stations. Last Thursday, U.S. District Judge Mark Walker granted FPF's request for a preliminary injunction against the state. An excerpt from Walker's ruling:

Plaintiff’s political advertisement is political speech—speech at the core of the First Amendment. And just this year, the United States Supreme Court reaffirmed the bedrock principle that the government cannot do indirectly what it cannot do directly by threatening third parties with legal sanctions to censor speech it disfavors. The government cannot excuse its indirect censorship of political speech simply by declaring the disfavored speech is “false.” 

Walker then quotes the 1945 Supreme Court case of Thomas v. Collins:

The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion. In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.

"To keep it simple for the State of Florida: it’s the First Amendment, stupid," Walker concludes. 

The DeSantis administration's unprecedented effort to void the abortion rights amendment

Earlier this month, the DeSantis administration released a 348-page report alleging that FPF committed “widespread petition fraud” while collecting the signatures required for the amendment to appear on the ballot. The report, issued by the Office of Election Crimes and Security (OECS), claimed that FPF submitted a “large number of forged signatures or fraudulent petitions.” The group was fined $328,000 for the alleged violation. . 

The report contains multiple accusations against FPF, but as the DeSantis administration did not file a criminal charge against the group, they do not have to provide evidence to support these allegations. For example, the report states that “county elections supervisors referred ‘an unusually high volume of complaints’ to the state,” but it does not provide data on how many complaints other ballot initiatives have received. It was also published after the deadline to challenge signatures for ballot initiatives.

The report states that the investigation was originally focused on complaints related to petition forms that were deemed invalid. OECS, however, “became concerned that a substantial number of forged signatures submitted by FPF were mistakenly verified as valid by Supervisors of Elections.” In other words, the DeSantis administration began doubting the workers trained and tasked with validating signatures. Election office workers “go through a state training on signature matching” prior to every election, the Tampa Bay Times reported.

Ballot initiatives in Florida require at least 891,523 supporting signatures in order to appear on the ballot. FPF submitted 1.4 million petitions in support of the amendment as a precaution, as it is common to have some signatures rejected. Over 997,000 (or 71.2%) of the group’s submitted petitions were validated. This is consistent with the rate of past ballot initiatives in the state, which “have generally seen 25% to 33% of petitions invalidated,” the Orlando Sentinel reported.

The OECS report, however, claims that many of the validated petitions should have been rejected. According to the report, OECS “reviewed and analyzed a total of 13,445 validated petition forms” and determined that at least 2,849 petitioners should have been rejected “due to statutory deficiencies or a clear mismatch between the signature on the petition and any signature on file.” (According to the ACLU, signature matching is a delicate process as a “voter’s signature can change for many reasons.”) OECS then extrapolated their findings to hundreds of thousands of petitions it did not review. OECS argues that there is “an average total invalidity rate of 16.4%,” which would cause the total valid signatures to fall short of the required 891,523 valid petitions. 

Elections supervisors called the decision to reexamine already approved petitions an “unprecedented move” and said that “they couldn’t recall the state ever requesting validated petitions for a fraud investigation,” according to the Tampa Bay Times. Lauren Brenzel, FPF’s campaign director, denounced the report, saying that the collection of signatures was “above board and followed state law at every turn.” Brenzel called the OECS report a “dishonest distraction[] and [a] desperate attempt[] to silence voters.” 

Shortly after the report was released, anti-abortion advocates filed a lawsuit based on the report that alleges that FPF’s process of collecting signatures contained “widespread fraud.” The lawsuit aims to remove the amendment from the ballot or void the results of the election. Former Florida Supreme Court Justice Alan Lawson filed the lawsuit on behalf of four anti-abortion activists. Lawson said they “acted as soon as we had the evidence of the fraud,” stating that the ballot measure “shouldn’t be voted on.”