Ron DeSantis’ Administration Is Threatening to Prosecute the Media for Airing Pro-Choice Ads

Florida Gov. Ron DeSantis’ administration is threatening TV stations that air ads in support of an abortion rights ballot initiative with criminal penalties, including jail time.

DeSantis and his allies are already spending large sums of taxpayer dollars to fight Amendment 4, which would enshrine abortion rights in the state constitution if voted into law in November. His “election police” have interrogated and intimidated residents who signed petitions to put it on the ballot. His administration created a publicly funded, state-run website condemning the amendment, and has run ads promoting the current law, which bans abortions after six weeks.

Now, however, DeSantis is escalating the battle: On Oct. 3, his Department of Health sent a letter to at least one local NBC affiliate suggesting that prosecutors could bring criminal charges against the TV station for airing ads that encourage residents to vote for the amendment. The letter, first reported by investigative journalist Jason Garcia, asserted that the ads violate Florida’s “sanitary nuisance” law and that stations may commit a second-degree misdemeanor by carrying them, subjecting their employees to a 60-day jail sentence.

The Florida Department of Health’s allegations are absurd on several levels. The agency claims that the advertisement in question is “false” and “dangerous” because it informs viewers that the state’s six-week ban imperils the life and health of pregnant women. But it is demonstrably true that Florida’s ban jeopardizes the well-being of women. Moreover, even if the ad exaggerated these harms—indeed, even if it were arguably false—it would still receive bulletproof First Amendment protections. And TV stations would have an insurmountable constitutional shield against any punishment for airing it.

The advertisement in question, called “Caroline,” was sponsored by supporters of the amendment. It features a woman, Caroline, who was diagnosed with a brain tumor during her second pregnancy. “The doctors knew if I did not end my pregnancy,” she says, “I would lose my baby, I would lose my life, and my daughter would lose her mom. Florida has now banned abortion even in cases like mine.”

In its letter raising the threat of criminal charges, the Florida Department of Health protested that the ad contained false statements. Specifically, the department cited an exception to the ban that permits abortions when necessary to save the patient’s life, or to avert “substantial and irreversible physical impairment of a major bodily function.” This exception, the department claimed, means that Florida’s ban poses no risk to women’s health.

In reality, the six-week ban has directly harmed women’s health, as documented in a recent report by Physicians for Human Rights. Doctors accused of providing an abortion too early, before the exception applies, face a five-year prison sentence. They are therefore reluctant to terminate, even to save a woman’s life. Instead, they seek approval from the hospital—which causes lengthy and often harmful delays. Physicians for Human Rights found that many doctors refer patients out of state for a medically necessary abortion to avoid the risk of investigation, prosecution, and incarceration if the state disagrees with their judgment.

The problem is especially acute for cancer patients, like Caroline, who must undergo an abortion in order to receive chemotherapy. Florida’s exception does not clarify when a patient’s cancer is severe enough to justify termination. These women may have to wait until their tumor grows before a doctor will certify that it will cause “substantial and irreversible physical impairment.” In fact, Physicians for Human Rights interviewed a Florida doctor whose patient needed an abortion so she could undergo chemotherapy for metastatic pancreatic cancer. The doctor worked with lawyers to compile the immense amount of paperwork necessary to prove that her patient qualified for an exception. It took so long that she ultimately urged the patient to drive four hours to terminate elsewhere. This denial of medical care is precisely what “Caroline” warns against.

There is a perverse irony here. The Florida Department of Health claimed that airing the “Caroline” ad may violate the state’s ban on a “nuisance injurious to health,” a second-degree misdemeanor. (Yes, the department’s lawyers asserted that this law—which targets septic tanks and slaughterhouses—could somehow be applied to political speech.) The agency alleged that the advertisement may convince women that they cannot obtain emergency abortions in Florida, leading them to travel out of state for care or forgo it altogether. Yet women are already taking these steps—not because they saw “Caroline” on TV, but because the six-week ban forces them to do so. The DeSantis administration is therefore blaming the catastrophic public health consequences of its own abortion ban on an ad asking voters to overturn that ban.

Even if the ad did somehow constitute a criminal “nuisance” to women’s health, though, no media company could possibly be punished for airing it. That’s because media companies have a First Amendment right to air campaign ads that are exaggerated, tendentious, or alleged to be false. Political speech, particularly about ongoing campaigns, is the most highly protected form of expression; any state efforts to chill, censor, or punish this speech because of its “communicative content” is presumptively unconstitutional.

State regulation of “campaign speech” in particular, including advertisements, is subject to extraordinarily strict scrutiny: Supporters of a ballot initiative, like candidates themselves, have a sweeping First Amendment right to express their views—as do media companies that publish their speech. The First Amendment also protects citizens’ right to promote known falsehoods outside a few narrow exceptions like defamation, which are themselves still subject to free speech limitations.

Because of this case law, the federal government does not attempt to police the truth of campaign ads. As former chair of the Federal Communications Commission Tom Wheeler put it bluntly, “you’re allowed to lie.” States rarely attempt to penalize campaign ads or the media companies that air them, but when they do, they are consistently shot down in court. For instance, in 2014, the Supreme Court allowed an interest group to file a First Amendment suit against an Ohio law that criminalized false statements made during a campaign. A federal appeals court then struck down the law, finding that it unconstitutionally burdened “core protected political speech” by prohibiting “all false speech regarding a political candidate.” Other courts have reached identical conclusions about attempts to penalize false expression about matters of public concern.

The point here is that even if the statements made in “Caroline” were false, Florida would have no power to punish media companies that air the ad. But the statements are true, so the state is unquestionably prohibited from imposing any punishment. Rebecca Tushnet, a professor at Harvard Law School and a First Amendment specialist, told me that the DeSantis administration’s threat is “about as blatant a violation of the First Amendment as you’ll see.”

Jennifer Safstrom, director of the First Amendment Clinic at Vanderbilt Law School, condemned the administration’s letter as an unconstitutional “weaponization of state law to suppress speech” that’s “designed to have a chilling effect on advocates during a time critical to voter outreach.” Alexander Tsesis, a professor at the Florida State University College of Law, said it seemed “absurd to threaten prosecution,” and pointed out that stations’ own “editorial decisions” are protected by the First Amendment. Ciara Torres-Spelliscy, a professor at Stetson Law, called the incident yet another episode in DeSantis’ “long recent history of violating the First Amendment with abandon.”

Torres-Spelliscy raises an important point: This not-so-subtle threat of prosecution is best understood in the context of the DeSantis administration’s broader war against free speech in Florida. He has committed a head-spinning number of First Amendment violations since assuming office in 2019. A brief, partial sampling: A conservative appeals court struck down one of his signature laws, the STOP Woke Act, to ban speech about diversity in the workplace. A conservative judge invalidated two laws signed by the governor that would censor speech about ballot initiatives (like Amendment 4). A different conservative judge found that he unlawfully retaliated against pro-choice speech.

DeSantis quietly accepted a court settlement curtailing another signature law that had censored LGBTQ+ expression in public schools. He is fighting a separate decision invalidating a different policy that gags LGBTQ+ teachers’ speech. That ruling began with this lament: “Once again, the State of Florida has a First Amendment problem. Of late, it has happened so frequently, some might say you can set your clock by it.”

DeSantis’ approach is simple: The governor attempts to impose his policies by censoring expression, threatening those who disagree with gag orders, civil penalties, and even incarceration. He might lose in court later—but by then, the censorship may have had its intended effect. Amendment 4 needs 60 percent approval to pass; DeSantis and his administration are trying to suppress enough pro-choice speech to hold off supermajority support. Any criminal charges over the “Caroline” campaign ad would, of course, get thrown out in court. But if the governor can doom Amendment 4 by silencing speech now, he is unlikely to care that his intimidation tactics were built on constitutional quicksand.