Florida has become the state where elements of a future, second-Trump-presidency America already come into view. We’re seeing some of these things happening right now in Florida. The example I’m about to share with you legitimately shocked me. (That’s a high bar.) It’s about the pro-choice ballot amendment which would restore Roe protections in Florida if it gets the support of 60% of voters. As in most other states, getting to 50% isn’t that difficult. 60% is much harder. To head off even the chance that the ballot initiative might hit that challenging high bar, the state of Florida is already spending a substantial amount of tax payer dollars campaigning against the initiative. Now we learn that the state is quite literally threatening jail time for the employees of stations that agree to run one of the ads for the pro-choice amendment. You heard that right — not sue under some claim of defamation but actual criminal charges.
When I first read this I thought it was one of those civil suits. Opposing campaigns will occasionally do this to scare stations out of running their opponent’s ads. I’ve never seen a state government do it, but particularly litigious campaigns occasionally do. But it’s not a civil suit. They’re threatening criminal charges.
A few fact points to explain what’s going on.
Florida currently has a six-week abortion ban. The ad claims that the law endangers women who have a pressing medical need for an abortion and can’t get one in the state. The Florida State Department of Health, the agency threatening prosecution, says the law has exceptions for anyone in this situation. Technically, it does. If you’ve followed these cases, though, you’ll know it’s not that simple. The law can state an exception for the “life of the mother.” But just what kind of danger gets you into that category is never explained. What’s more, doctors are leery of acting on their interpretation of the law for fear they could be prosecuted for manslaughter or murder if the state disagrees. That’s a big risk. Put simply, the penumbra of legal jeopardy that hangs over these decisions frequently forces women to get perilously close to dying or actually go past the point they can be saved before doctors will treat them. We’ve seen versions of this story in red states around the country. It’s that issue. The state of Florida says that airing this ad, making that demonstrably accurate claim, is a criminal offense because it confuses women about state law and might lead them not to seek care.
To threaten this, the state’s lawyers shoehorn in a law that makes it a misdemeanor to create a public health nuisance — like maybe a blood bank dumping extra blood out on a public side walk or running a private salmonella hatchery in your backyard. That’s not a matter for lawsuits. In Florida, it’s a misdemeanor criminal offense. The state says agreeing to run that ad creates just such a public health nuisance.
This would pretty clearly never pass muster in court. But the station employees are being threatened with going to jail for 60 days. When you’re the one who might go to jail, confidence that a court will eventually toss the charges isn’t that reassuring. The First Amendment gives pretty ample protections even for demonstrably false claims, certainly in the realm of political speech. But what’s being claimed here is clearly accurate. If you were being as generous as possible to the state of Florida, you would still have to say that both sides of the factual dispute have a good-faith belief that their argument is correct. That’s a textbook example of a case where it’s precisely the political process which is the place to sort out the disagreement.
In a dire Trumpian future, you’re almost certainly not going to have an end to elections. They still have elections in Hungary, Turkey, even Russia. What you’d have is stuff like this, states acting as what amounts to an active belligerent in the political process by mobilizing state power.
It’s already happening in Florida.
