There’s New Evidence Against Ron DeSantis in Abortion Censorship Case

On Oct. 3, TV stations across Florida received letters from the state’s Department of Health threatening prosecution if they continued airing an advertisement in support of Amendment 4, the ballot initiative that would overturn the state’s six-week abortion ban. These letters were signed by John Wilson, who was then serving as the department’s general counsel; they threatened jail time for any media outlet that refused to take down the pro-choice ad. Floridians Protecting Freedom—which sponsored the ad, along with Amendment 4 itself—filed suit against Wilson.

When their lawyers arrived at a Tallahassee courthouse for a hearing last Thursday, they were approached by Wilson’s personal attorney. According to sources in the courtroom, Wilson’s attorney offered Floridians Protecting Freedom’s legal team a declaration from her client. It was a bombshell: The document alleged that Gov. Ron DeSantis’ top advisers, not Wilson, had concocted the entire scheme to censor ads for Amendment 4. The governor’s advisers drafted the threatening letters, then compelled Wilson to sign them. Wilson sent out the first round of letters, but resigned after DeSantis’ office pressured him to send more. He was now cooperating with the plaintiffs who had sued him just 24 hours earlier. The defendant had become a whistleblower.

Hours after Thursday’s hearing, U.S. District Judge Mark Walker handed down a restraining order prohibiting the Florida Department of Health from censoring pro-choice speech. Wilson’s change of heart, though, suggests that this case will not end with a restraining order, or after the November election. His declaration points toward a plot among DeSantis and his advisers to suppress the First Amendment rights of Amendment 4’s advocates—and to do so when it matters most, in the weeks before the election. It raises the possibility that DeSantis’ lieutenants could soon find themselves in serious legal jeopardy, potentially facing down damages for personally violating the Constitution.

Wilson’s declaration points the finger at three specific officials: Ryan Newman, general counsel for the executive office of the governor; Jed Doty, deputy general counsel for the executive office of the governor; and Sam Elliott, assistant general counsel for the executive office of the governor. These three men provide a wide range of both legal and ethical advice to DeSantis. (Because they work so closely with the governor, it is hard to imagine that they would have set this plan into motion without DeSantis’ approval; nonetheless, the declaration does not state that DeSantis himself was involved.)

Wilson attested that Elliott sent him the draft letters to send to TV stations on Oct. 3 without any prior discussion. Newman and Doty then “directed” him to sign them, “under my name and on behalf of the Florida Department of Health.” A week later, Wilson resigned “in lieu of complying with directives from Newman and Doty to send out further correspondence to the media outlets.” Before he did, though, Newman “directed” Wilson “to execute contracts for outside counsel” to help “with enforcement proceedings” against outlets that continued to carry the ads. These contracts will cost the public up to $1.4 million.

The Miami Herald reported that in his resignation letter, Wilson wrote: “A man is nothing without his conscience. It has become clear in recent days that I cannot join you on the road that lies before the agency.” (Through his lawyer, Wilson declined to comment for this story.)

These revelations prompted Floridians Protecting Freedom—through its attorneys with the Elias Law Group and the American Civil Liberties Union of Florida—to dismiss Wilson as a defendant on Monday. FPF had sued Wilson in his individual capacity, seeking monetary compensation, including punitive damages, to make up for the violation of rights and “deter repetition.” By dismissing him from the suit, the group essentially acknowledged that Wilson was not the driving force behind this deprivation of constitutional liberties. It was, lawyers wrote, “unnecessary to pursue” the claims against him. That dismissal left one remaining defendant in the case, Joseph Ladapo, the DeSantis-appointed state surgeon general and head of the Florida Department of Health.

But Floridians Protecting Freedom is now considering the possibility of bringing individual capacity claims against Newman, Elliott, and Doty, according to sources close to the legal team. The organization remains focused on making sure it can speak freely about Amendment 4 before the election. Down the road, though, it may file an amended complaint. And while no final decisions have been made, that complaint could name Elliott, Newman, and Doty as defendants, seeking damages from all three men for an illegal deprivation of civil rights.

Emma Olson Sharkey, an attorney representing FPF, told me that one goal of the lawsuit is to deter other states from wielding censorship tactics against sponsors of a ballot measure. “What we’ve seen in the past is that when something appears to work in one state where conservatives control the government, which is the case in Florida, we see those actions spread,” she said. “We have a concern about making sure this doesn’t spread and making sure those who conducted this are held accountable.” The legal team’s next steps, while still under consideration, will be designed to further this deeper aim.

If Floridians Protecting Freedom names DeSantis’ advisers as defendants, all three men could be in serious trouble. Federal law allows plaintiffs to collect damages from state officials who violate their civil rights. Through a doctrine known as qualified immunity, the Supreme Court has limited liability to situations in which officials violated “clearly established” law. But it is hard to think of more clearly established law than the First Amendment principles flouted in this case. Just last term, in National Rifle Association v. Vullo, the Supreme Court unanimously ruled that government officials can’t coerce third parties into suppressing an advocacy group’s speech. It is uncanny how closely Vullo tracks the facts of this case (though the case involved far subtler coercion).

“Vullo is directly on point,” Ben Stafford, another lawyer for FPF, told me. “Any official reading it would know darn well that a letter like the letter that was sent in our case was unconstitutional. Full stop.” The law here, in other words, is “clearly established” to an unusually specific degree. That means any future defendants will have serious trouble using qualified immunity to avoid liability.

In some ways, FPF has already suffered harm beyond repair. Some stations quickly stopped airing the Amendment 4 ad after receiving the state’s letter, suppressing vital speech about a matter of immense public concern. FPF will never get back the opportunities it has lost to educate the public about the amendment. Damages are meant to give a plaintiff the next best thing: compensation for irreparable wrongs that double as a deterrent against future misconduct. Win or lose in November, abortion rights advocates have a compelling reason to seek accountability from the officials who schemed to silence their speech.