Federal Judge Shoots Down Ron DeSantis’ War Against Free Speech
Florida Gov. Ron DeSantis, a Republican, is using every conceivable tool at his disposal to maintain his state’s six-week abortion ban. The law, which is deeply unpopular among voters, routinely prevents women from receiving emergency health care and forces thousands out of state for medical treatment. In November, they can overturn it by enacting Amendment 4, a ballot initiative that would restore reproductive rights in Florida. The initiative requires 60 percent support to pass, and DeSantis is spending vast sums of taxpayer money to defeat it.
This month, the governor escalated his battle against Amendment 4 by demanding the removal of pro-choice ads from the airwaves and threatening to prosecute and incarcerate the media for carrying them. On this week’s Slate Plus bonus episode of Amicus, Dahlia Lithwick and Mark Joseph Stern discussed a major legal blow to DeSantis’ unconstitutional censorship scheme, as well as his backup plan for countering a democratic rejection of his agenda. A preview of their conversation, below, has been edited for length and clarity.
Dahlia Lithwick: Last time we checked in on Amendment 4, Ron DeSantis’ Department of Health was threatening criminal penalties for TV stations that aired a factually true pro-choice ad, claiming it was false and dangerous. Tell us what’s happened this past week.
Mark Joseph Stern: Proponents of Amendment 4 filed a lawsuit in federal court alleging that these threats violated the First Amendment. They noted that some stations stopped airing the ad, which is not surprising: The DeSantis administration threatened their employees with 60 days in jail if they kept it on the airwaves. This was overtly tyrannical suppression of speech.
Thankfully, the lawsuit got assigned to Judge Mark Walker, an Obama appointee who has had very little patience for DeSantis’ suppression of free speech and voting rights. He very quickly held a hearing, then issued a restraining order directing the administration to stop threatening penalties against TV stations for airing the ad. He relied in large part on a recent, unanimous Supreme Court decision called NRA v. Vullo, which held that the government can’t coerce third parties into censoring speech it dislikes. And that, of course, is exactly what happened here.
It’s so interesting, because we’re heading into an election where everybody calls everyone a liar, and everything is “fake news.” Judge Walker’s opinion goes right to the heart of the issue of who gets to decide what is true and what is false, particularly in the realm of political speech. He wrote: “The government cannot excuse its indirect censorship of political speech simply by declaring the disfavored speech is ‘false.’ ”
He went on to quote Justice Robert H. Jackson: “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.” And then, gorgeously, Walker finished: “To keep it simple for the State of Florida: It’s the First Amendment, stupid.”
I think what Walker is driving at is that these efforts by DeSantis to be the sole arbiter of what is true are deeply creepy. The governor is taking it upon himself to tell us what can be played on the airwaves, because he will decide what is true.
And this decision is just the latest in a long line of attempts at speech suppression by DeSantis. He has tried to suppress free speech in support of ballot initiatives. He has tried to censor universities, public schools, even private workplaces. He has been continually shot down by the courts, including the 11th U.S. Circuit Court of Appeals, whose conservatives have repeatedly said that DeSantis is crossing the line and retaliating against free expression he dislikes. Yet it seems as if no number of court losses will thwart the governor’s quest to control what people say, and ultimately to prevent people from even thinking things he doesn’t approve of. He manipulates the tools of democracy and the channels of expression in relentless pursuit of that goal.
That’s not all the news on Amendment 4 this week, right?
Correct. DeSantis’ allies have also filed a lawsuit in state court trying to nullify Amendment 4, even as millions of Floridians are already voting on it, long after the Republican secretary of state approved the signatures to get it on the ballot. The plaintiffs claim, falsely, that there was mass fraud in the collection of signatures, so the courts must nix the whole amendment now, or overturn it if it is passes. They base their allegation on an absurd report by DeSantis’ own “election crimes” police, who put out a report alleging mass signature fraud without any meaningful evidence.
The immediate goal, I think, is to destabilize the campaign for this amendment, confusing voters about whether it’s even legal. But the long-term goal is to kill it in court if it passes. If DeSantis doesn’t suppress enough speech and enough votes to stop Amendment 4 at the ballot box, he’s got a Plan B to make sure Floridians never, ever get their reproductive rights back.
I think this really shows how powerful it can be to muddy the waters and to chill people from participating in direct democracy. But I ask you, as a former Florida man: Don’t Floridians prize their ability to participate in direct democracy?
Let me just remind you how the Florida Constitution begins. Article I, Section I: “All political power is inherent in the people.” In Florida, political power is not inherent in the Legislature or the governor or the courts, but in the citizenry. And Floridians are very proud of their ability to amend their own constitution—which is guaranteed in the constitution. It states that the power to propose an amendment “by initiative” is “reserved to the people.”
DeSantis has fundamentally rejected the foundational premise of the Florida government, which is that the people hold the power. Remember, one of the first things he did after he took office was gut a 2018 constitutional amendment that attempted to restore voting rights to former felons. He didn’t like that the people enacted it, so he overturned it. That was the road map for everything he’s done since.
The governor is declaring that he gets to decide when and how the law is changed. He acts like an authoritarian, or perhaps a king, consolidating all political power in his own governorship and prohibiting the people from overruling him when they don’t like what he’s done. He’s manipulating the freedom of speech. He’s manipulating the machinery of elections themselves. He’s sending out agents to intimidate people who support constitutional amendment he doesn’t like. He’s using every available tool of the authoritarian to prevent exercise of free speech and lawmaking power by those who ultimately hold it, which is the people. And he’s doing it to maintain political power that he weaponizes against women to prevent them from exercising control over their bodies. It should be a national scandal. It’s sick.
In this conversation about authoritarians and the deployment of government resources to quash democracy, is there any entity that can stand up to Ron DeSantis in Florida? And what does that look like?
If we’re looking for a bright spot, I’ll note that there are defectors. One is John Wilson, the Florida Department of Health general counsel who sent those threatening letters to TV stations in the first place. The Miami Herald has reported that shortly after he sent the letters, he quit, apparently in protest, and he said: “A man is nothing without his conscience. I cannot join you on the road that lies before the agency.” So there are people who are drawing a line. Not enough of them yet, but I hold out hope that there are more who come out of the woodwork and refuse to play along with DeSantis’ quest to permanently erode democracy in Florida.