Just a week before Election Day, a federal judge on Tuesday said he would extend a restraining order blocking state officials from taking action against TV stations running a controversial ad urging voters to support a ballot measure aimed at enshrining abortion rights in the Florida Constitution.
The Floridians Protecting Freedom political committee, which is sponsoring what appears as Amendment 4 on the November ballot, filed a lawsuit seeking a temporary restraining order and preliminary injunction after the state Department of Health sent threatening letters to broadcasters alleging the ad posed a public “health nuisance.”
The letters are among a number of steps Gov. Ron DeSantis and his administration have taken to try to prevent the proposed constitutional amendment from receiving the required 60 percent approval from voters to pass.
The lawsuit alleged the letters, signed by former Department of Health General Counsel John Wilson, violated the First Amendment. Chief U.S. District Judge Mark Walker on Oct. 17 granted the committee’s request for a temporary restraining order blocking state officials from taking action against broadcasters airing the ad. Walker’s order also prohibited state officials from taking action against the committee.
During a hearing Tuesday, attorney Brian Barnes, who represents the state, likened the abortion commercial to a “hypothetical” scenario in which a political candidate “goes on television” and asserts that all 911 operators have been fired and emergency services are no longer available to the public.
“We see this case as being controlled by the same legal principle that would apply to that 911 scenario,” Barnes, a lawyer with the Washington, D.C.-based Cooper & Kirk firm, argued, adding that the state must be allowed to step in “to prevent a public health crisis.”
But Walker appeared unconvinced. “It’s not that simple, is it?” the judge asked.
The Oct. 3 letters to the TV stations alleged that the ad included false and “dangerous” information and threatened to seek injunctions or possible criminal prosecution against the stations.
But Walker’s Oct. 17 order said the ad “is political speech — speech at the core of the First Amendment.” The DeSantis administration “cannot excuse its indirect censorship of political speech by simply declaring the disfavored speech is ‘false,’” the judge wrote.
Floridians Protecting Freedom launched the constitutional amendment drive after DeSantis and the Republican-controlled Legislature in 2023 approved a law that largely prevents abortions after six weeks of pregnancy.
The law includes exceptions for rape, incest and human trafficking until 15 weeks of pregnancy. The law also allows abortions after six weeks of pregnancy “to save the pregnant woman’s life or avert a serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman other than a psychological condition.”
Critics of the law maintain that the documentation required for the exceptions is onerous and can prevent women from obtaining emergency abortions. Doctors also face hefty fines and jail for violating the law.
The controversial ad, dubbed “Caroline,” tells the story of a woman who was diagnosed with brain cancer when she was 18 weeks pregnant. Doctors told the woman they could not treat her with chemotherapy or radiation while pregnant, so she had an abortion.
The woman in the ad says that “doctors knew if I did not end my pregnancy . . . I would lose my life” and that “Florida has now banned abortion even in cases like mine.”
In court documents, DeSantis administration lawyers wrote that the “statute is crystal clear. If an abortion is necessary to save a woman’s life, she may obtain the procedure.”
But the committee’s attorneys filed a statement from a doctor who said that, under the law, she “could not certify” that the woman in the ad met the criteria for an abortion because it would not necessarily save her life.
Barnes said the ad erroneously leads people to believe that the law bans abortions when the life of a pregnant woman is in danger.
“Then riddle me this, Batman,” Walker responded, saying the state’s positions were contradictory.
Lawyers for the DeSantis administration maintain that the ad could cause women to forgo emergency abortions when their lives are at risk but also in court documents have conceded that that the health department “is currently unaware of any harm” related to the commercial.
“If this is danger, red alert, women are going to bleed out all over the state,” but at the same time “we’ve identified no harm … it seems to me” the state’s position is “inconsistent,” Walker said.
Barnes said the state was trying to “strike a balance” to protect the public.
"The First Amendment yields to the political interests of political folks in Florida.” ~Chief U.S. District Judge Mark Walker
“Or another way of putting it, the First Amendment yields to the political interests of political folks in Florida,” Walker retorted.
Walker issued an order Tuesday extending the restraining order for 14 days, as permitted by court rules.
The hearing also addressed whether a preliminary injunction would be moot after the Nov. 5 election.
The judge questioned Barnes about part of a document filed by the state that said, “If injuries do occur in the future, they will constitute ‘legally cognizable harm’ that the state may remedy through its laws.”
Walker called the language “squirrely” and asked Barnes what would happen if a woman delayed getting medical assistance because she watched the ad and subsequently died.
“I think your example is a good one,” Barnes said. “That would be a scenario where we would have legally cognizable harm.”
Ben Stafford, an attorney representing Floridians Protecting Freedom, told Walker that an injunction was necessary to block the state from punishing anyone after the election.
He equated the committee’s situation with the parable of a scorpion who asks a frog to trust him and give him a ride across a river but kills the frog when they get to the other side.
“We’re just waiting to get stung,” Stafford said, adding that uncertainty about future prosecutions amounts to a “coercive threat” by the administration.
The ad is “core political speech” protected by the First Amendment, said Stafford, who works for the Washington, D.C.-based Elias Law Group.
“The department doesn’t have a straight-faced argument that its actions pass muster,” Stafford said.
Stafford insisted the commercial is true but that its veracity doesn’t matter.
“It’s very well established that false political speech does not lie outside of the First Amendment” protections, he said.
Walker issued a written ruling Tuesday saying the hearing “identified new issues” and that he needed “additional time” before ruling on the motion for a preliminary injunction.
