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FEDERAL JUDGE TO RON DESANTIS: “IT’S THE FIRST AMENDMENT,
STUPID”  
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Dahlia Lithwick and Mark Joseph Stern
October 18, 2024
Slate
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_ Federal judge shoots down Ron DeSantis’ war against free speech _


Ron DeSantis, Gage Skidmore (CC BY-SA 2.0)

 

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
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voters, routinely prevents women
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receiving emergency health care and forces thousands
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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
[[link removed]] of taxpayer
money [[link removed]] 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
[[link removed]] the
media for carrying them. On this week’s Slate Plus bonus episode
of Amicus [[link removed]], 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
[[link removed]] 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
[[link removed]] 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
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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_
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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
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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
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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
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the courts, including the 11th U.S. Circuit Court of Appeals, whose
conservatives_ _have repeatedly said that DeSantis is crossing the
line
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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
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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
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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
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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
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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
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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
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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
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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
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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.

_DAHLIA LITHWICK writes about the courts and the law for Slate and
hosts the podcast Amicus [[link removed]]. MARK
JOSEPH STERN is a Slate senior writer._

Slate [[link removed]] is an online _magazine_ of news,
politics, technology, and culture. Combines humor and insight in
thoughtful analyses of current events and political news. Choose the
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Slatest.

 

* abortion
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* Reproductive rights
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* First Amendment
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* Florida
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* Ron DeSantis
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