The opinion
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
FLORIDIANS PROTECTING
FREEDOM, INC.,
Plaintiff,
v. Case No.: 4:24cv419-MW/MAF
JOSEPH A. LADAPO and
JOHN WILSON,
Defendants.
_________________________/
ORDER GRANTING TEMPORARY RESTRAINING ORDER
Floridians will vote on six proposed amendments to their state constitution
this election cycle, including Amendment 4, titled “Amendment to Limit
Government Interference with Abortion.” Voting has already begun.
The State of Florida opposes Amendment 4 and has launched a taxpayer-
funded campaign against it. Floridians Protecting Freedom, Inc., the Plaintiff in this
case, has launched its own campaign in favor of Amendment 4.
Plaintiff does not challenge the State’s right to spend millions of taxpayer
dollars opposing Amendment 4. The rub, says Plaintiff, is that the State has crossed
the line from advocating against Amendment 4 to censoring speech by demanding
television stations remove Plaintiff’s political advertisements supporting
Amendment 4 or face criminal prosecution.
Plaintiff’s argument is correct. While Defendant Ladapo refuses to even agree
with this simple fact, Plaintiff’s political advertisement is political speech—speech
at the core of the First Amendment. And just this year, the United States Supreme
Court reaffirmed the bedrock principle that the government cannot do indirectly
what it cannot do directly by threatening third parties with legal sanctions to censor
speech it disfavors. The government cannot excuse its indirect censorship of political
speech simply by declaring the disfavored speech is “false.” “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.” Thomas v.
Collins, 323 U.S. 516, 545 (1945) (Jackson, J., concurring). “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.” Id. To keep it simple for the
State of Florida: it’s the First Amendment, stupid.
I
Plaintiff is a Florida corporation and political committee sponsoring
Amendment 4. Plaintiff has actively advocated for the passage of Amendment 4
during this year’s general election and against arguments made by those who oppose
Amendment 4. To that end, on October 1, 2024, Plaintiff began running an
advertisement called “Caroline” on several TV stations across the state, in which a
woman recalls her decision to have an abortion in Florida in 2022. She states that
she would not be able to have an abortion for the same reason under the current law.1
Shortly after the ad began running, John Wilson, then general counsel for the
Florida Department of Health, sent letters on the Department’s letterhead to Florida
TV stations. The letters assert that Plaintiff’s political advertisement is false,
dangerous, and constitutes a “sanitary nuisance” under Florida law. The letter
informed the TV stations that the Department of Health must notify the person found
to be committing the nuisance to remove it within 24 hours pursuant to section
386.03(1), Florida Statutes. The letter further warned that the Department could
institute legal proceedings if the nuisance were not timely removed, including
criminal proceedings pursuant to section 386.03(2)(b), Florida Statutes. Finally, the
letter acknowledged that the TV stations have a constitutional right to “broadcast
political advertisements,” but asserted this does not include “false advertisements
which, if believed, would likely have a detrimental effect on the lives and health of
pregnant women in Florida.” At least one of the TV stations that had been running
Plaintiff’s advertisement stopped doing so after receiving this letter from the
Department of Health.
1 Yes on 4 Florida, Caroline, YouTube (Oct. 1, 2024), https://www.youtube.com
/watch?v=7jJiEE_AkPA.
On October 16, 2024, Plaintiff filed a verified complaint with this Court,
raising claims for unconstitutional coercion and viewpoint discrimination in
violation of the First Amendment of the United States Constitution. ECF No. 1.
Plaintiff sues Joseph Ladapo, the Surgeon General of Florida and head of the
Department of Health, and John Wilson, former general counsel of the Department
of Health, who signed the letters at issue. Plaintiff also filed an emergency motion
for temporary restraining order directed only at Defendant Ladapo in his official
capacity. ECF No. 2. In an abundance of caution, this Court set the motion for an
emergency hearing on October 17, 2024, in an effort to afford Defendant Ladapo an
opportunity to be heard. Both sides appeared at the hearing on October 17th with
their counsel of choice. Accordingly, having afforded both sides an opportunity to
be heard on an expedited basis, this Order now follows.
II
Temporary restraining orders, like preliminary injunctions, are emergency
measures that preserve the status quo pending a fuller hearing on the injunctive relief
requested. Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1229 (11th Cir.
2005). To obtain a temporary restraining order, a plaintiff must demonstrate that (1)
they are likely to succeed on the merits of their claim, (2) they are likely to suffer
irreparable harm in the absence of preliminary relief, (3) the balance of the equities
tips in their favor, and (4) an injunction is in the public interest. Ingram v. Ault, 50
F.3d 898, 900 (11th Cir. 1995). The Plaintiff must “clearly establish[] the burden of
persuasion as to the four prerequisites.” Schiavo, 403 F.3d at 1231 (internal
quotations omitted). None of the four elements are controlling. This Court must
consider the elements jointly, and a strong showing of one element may compensate
for a weaker showing of another. Fla. Med. Ass’n, Inc. v. U.S. Dep’t of Health, Educ.
& Welfare, 601 F.2d 199, 203 n.2 (5th Cir. 1979).2
A
Having set forth this standard, this Court begins with whether Plaintiff has
shown a substantial likelihood of success on the merits. This Court addresses this
factor first because, typically, if a plaintiff cannot “establish a likelihood of success
on the merits,” this Court “need not consider the remaining conditions prerequisite
to injunctive relief.” Johnson & Johnson Vision Care, Inc. v. 1-800 Contacts, Inc.,
299 F.3d 1242, 1247 (11th Cir. 2002). And because standing is always “an
indispensable part of the plaintiff’s case,” this Court begins its merits analysis with
standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
Over time, the Supreme Court has developed a three-part test for determining
when standing exists. Under that test, a plaintiff must show (1) they have suffered
an injury in fact that is (2) traceable to the defendant and that (3) can likely be
2 Decisions of the Fifth Circuit prior to October 1, 1981 are binding within the Eleventh
Circuit. Bonner v. City of Pritchard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
redressed by a favorable ruling. See Lujan, 504 U.S. at 560–61. And where a plaintiff
moves for emergency injunctive relief, “the district court . . . should normally
evaluate standing ‘under the heightened standard for evaluating a motion for
summary judgment.’ ” Waskul v. Washtenaw Cnty. Cmty. Mental Health, 900 F.3d
250, 255 (6th Cir. 2018) (quoting Food & Water Watch, Inc. v. Vilsack, 808 F.3d
905, 912 (D.C. Cir. 2015)); see also Cacchillo v. Insmed, Inc., 638 F.3d 401, 404
(2d Cir. 2011). Thus, “a plaintiff cannot ‘rest on such mere allegations, [as would be
appropriate at the pleading stage] but must set forth by affidavit or other evidence
specific facts, which for purposes of the summary judgment motion will be taken to
be true.’ ” Cacchillo, 638 F.3d at 404 (some alteration in original) (quoting Lujan,
504 U.S. at 561).
This Court finds that Plaintiff has demonstrated standing for purposes of the
present motion. Plaintiff alleges two theories of injury. First, Plaintiff alleges its right
to free expression has been chilled because it “reasonably fears the State will take
action [] against FPF itself.” ECF No. 2 at 14. Second, Plaintiff alleges that it
“suffered from an injury because WINK TV stopped running [Plaintiff’s]
advertisement in the face of the State’s threats.” Id.
As to Plaintiff’s first theory—that it is injured because its right to free speech
has been chilled by a credible threat of prosecution—Plaintiff has shown injury in
fact. In a pre-enforcement challenge like this one, a plaintiff satisfies the injury-in-
fact requirement where it alleges “an intention to engage in a course of conduct
arguably affected with a constitutional interest, but proscribed by a statute, and there
exists a credible threat of prosecution thereunder.” Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 159 (2014) (citation omitted). Here, Defendant’s “past
conduct and its threat of future enforcement is enough to meet the injury-in-fact
requirement.” LaCroix v. Town of Fort Myers Beach, 38 F.4th 941, 947 (11th Cir.
2022). Plaintiff faces a credible threat of prosecution as evidenced by Defendant’s
letter, which states Plaintiff’s “Caroline” ad violates section 386.01, and Defendant
may institute civil and criminal proceedings against those who violate the statute.
ECF No 1-1; ECF No. 1-3 ¶ 23. Defendant’s threat of prosecution is not limited to
the TV stations who received the letter—it includes all “persons committing the
nuisance” and “failing to comply with notices to correct” nuisance conditions. ECF
No. 1-1. Plaintiff intends to continue educating voters and promoting its ad, and
“fears that it will face prosecution by the Department, or other State agents, if it
continues” to do so. ECF No. 1-3 ¶¶ 25, 27, 31. This is sufficient to demonstrate
injury in fact.3
3 At the hearing, Defendant posited that Plaintiff must allege it will cease speaking to show
injury in fact. Not so. When First Amendment rights are involved, courts apply the injury-in-fact
requirement loosely, “lest free speech be chilled even before the law or regulation is enforced.”
Harrell v. The Fla. Bar, 608 F.3d 1241, 1254 (11th Cir. 2010).
Defendant offers Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) for the
proposition that Plaintiff has not alleged a required “certainly impending” injury.
But the Clapper plaintiffs’ fear of enforcement was predicated on a “highly
attenuated chain of possibilities,” including whether their foreign contacts would be
targeted and whether the challenged statute would be used. Id. at 410. Plaintiff need
not engage in such guesswork here. Defendant’s own letter targets Plaintiff’s
“Caroline” ad by name, states it is illegal, and threatens that Defendant can and will
proceed with civil and criminal prosecution against violators. ECF No. 1-1. Plaintiff
has shown “a threat of specific future harm” as required by Clapper, id. at 417–18.
Having found Plaintiff has established injury-in-fact, this Court also finds that
this injury is traceable to Defendant Ladapo. The letter reminds the reader that
Defendant Ladapo’s agency, the Department of Health, may “institute legal
proceedings . . . to obtain an injunction” and “[i]nstitute criminal proceedings”
against persons responsible for a sanitary nuisance—like the “Caroline” ad created
and distributed by Plaintiffs. ECF No. 1-1; §§ 386.03, 381.0012, 381.0061, Fla. Stat.
(2024). Further, Plaintiff has shown its injury would be redressed through this
litigation. See Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 287
(2008). For the same reasons Plaintiff’s injury is traceable to Defendant Ladapo, an
injunction prohibiting Defendant Ladapo, in his official capacity, from taking further
action under section 386 would provide redress by removing the credible threat of
prosecution that hangs over Plaintiff’s speech. Accordingly, Plaintiff has satisfied
all three elements of Article III standing to proceed with its motion for a temporary
restraining order on its First Amendment claim. Because Plaintiff has already
satisfied the elements of standing for its motion for temporary restraining order, this
Court need not decide Plaintiff’s second standing theory—that it is injured by WINK
TV’s removal of its ad—at this juncture.
B
Next, this Court addresses the merits of Plaintiff’s First Amendment claims.
At the hearing, Defendant led with the argument that laws of general applicability
are immune from First Amendment challenge. Nonsense. The line of cases
Defendant cites to support this dubious argument are readily distinguishable from
this case. Defendant’s cases addressed a different issue—namely, whether
enforcement of a law of general applicability against the press, which incidentally
affects the press’s ability to gather and report the news, offends the First
Amendment. See, e.g., Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991);
Villieux v. Nat’l Broad. Co., 206 F.3d 92 (1st Cir. 2000); Food Lion v. Cap.
Cities/ABC, 194 F.3d 505 (4th Cir. 1999). That is not this case. The issue here is
whether the State can censor core political speech under the guise that the speech is
false and implicates public health concerns. When state action “burdens a
fundamental right such as the First Amendment, rational basis yields to more
exacting review.” NAACP v. City of Philadelphia, 834 F.3d 435, 443 (3d Cir. 2016).
With limited exceptions not applicable here,4 a government restriction on speech is
subject to strict scrutiny if it is content based. Reed v. Town of Gilbert, 576 U.S. 155,
163 (2015).
Government regulation of speech is content based if a law “applies to
particular speech because of the topic discussed or the idea or message expressed.”
Id. A “reliable way” to assess whether a regulation is content based is to ask
“whether enforcement authorities must examine the content of the message that is
4 A few “limited categories of speech are traditionally unprotected—obscenity, fighting
words, incitement, and the like.” Honeyfund.com, Inc. v. Governor, 94 F.4th 1272, 1277 (11th Cir.
2024) (quoting Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 791 (2011)). “But what counts as
unprotected speech starts and ends with tradition—‘new categories of unprotected speech may not
be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.’ ”
Id. But Defendant has not demonstrated that the political speech at issue falls within any of these
categories. It is not commercial speech subject to a more relaxed standard permitting some
government regulation, nor is it obscene, nor is it inciting speech that will imminently lead to harm
to the government or the commission of a crime.
Defendant argues this is dangerous and misleading speech that could cause pregnant
women harm in Florida. But there is no “general exception to the First Amendment for false
statements.” United States v. Alvarez, 567 U.S. 709, 718 (2012) (plurality opinion). Falsity alone
does not bring speech outside the First Amendment absent some other traditionally recognized,
legally cognizable harm. Id. at 718–722. That is because “it is perilous to permit the state to be the
arbiter of truth.” Alvarez, 567 U.S. at 752 (Alito, J., dissenting).
Defendant seeks to fit a square peg into a round hole by suggesting that Plaintiff’s speech
is unprotected because it poses an “imminent threat” to public health. But this argument fails too.
Speech is unprotected as an “imminent threat” when it incites or produces imminent lawless action,
or poses a clear and present danger by bringing about the “substantive evils” that the government
has a right to prevent, like obstacles to military efforts, obscenity, acts of violence, and charges to
overthrow the government. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969); Near v. Minnesota
ex rel. Olson, 283 U.S. 697, 716 (1931). But there is no suggestion that Plaintiff’s ad would bring
about the “substantive evils” that the Supreme Court has recognized, nor is there any suggestion
that Plaintiff’s ad would cause individuals to take any imminent lawless action.
conveyed to know whether the law has been violated.” Honeyfund.com, Inc. v.
Governor, 94 F.4th 1272, 1278 (11th Cir. 2024). The government engages in “the
greatest First Amendment sin”—viewpoint discrimination—when it targets not just
a subject matter, but “particular views taken by speakers” on that subject matter. Id.
at 1277–78.
By threatening criminal proceedings for broadcasting a “political
advertisement claiming that current Florida law does not allow physicians to perform
abortions necessary to preserve the lives and health of pregnant women,” ECF No.
1-1 at 2, Defendant has engaged in viewpoint discrimination. The letter sent by the
Department of Health to broadcasters claimed that Plaintiff’s ad violated Florida’s
sanitary nuisance statute because, “if believed, [it] would likely have a detrimental
effect on the lives and health of pregnant women in Florida.” Id. at 3. Defendant
would not be able to conclude that the ad may have a detrimental effect on the lives
and health of pregnant women in Florida without reference to the particular view
taken by the speaker—namely, that “Florida has now banned abortion even in cases
like mine.” Id. at 2, n.1.
Even if the Department of Health’s actions here did not amount to viewpoint
discrimination, where a government uses the “threat of invoking legal sanctions and
other means of coercion . . . to achieve the suppression” of disfavored speech, it
functionally creates “a system of prior administrative restraints” that bears “a heavy
presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372
U.S. 58, 67, 70 (1963). A government official “cannot do indirectly what [he] is
barred from doing directly: . . . coerce a private party to punish or suppress
disfavored speech on [his] behalf.” Nat’l Rifle Ass’n v. Vullo, 602 U.S. 175 (2024).
The present case bears all the hallmarks of unconstitutional coercion that the
Supreme Court identified in Bantam Books and Vullo.
First, Defendant has enforcement authority that would cause a reasonable
person to perceive their official communication as coercive. As cited in the letter,
the Department of Health has the authority, if an identified nuisance is not removed
within 24 hours, to institute criminal proceedings against all persons failing to
comply. § 386.03(2)(b), Fla. Stat. Second, the communication can reasonably be
understood as a threat. While the “threat need not be explicit,” Vullo, 602 U.S. at
193, here it was all but: the letter quoted Plaintiff’s ad, labeled it as dangerous,
suggested that it could threaten the health of women in Florida, identified any act
that could threaten or impair the health of an individual as a “sanitary nuisance,” and
noted the Department’s power under Florida law to criminally prosecute all persons
who failed to remove a sanitary nuisance within 24 hours. ECF No. 1-1 at 2–3. A
reasonable person would have no trouble connecting the dots to identify this as a
threat. Finally, the reaction from one broadcaster to cease airing the ad after
receiving the letter is further evidence of its coercive nature.5
To overcome the presumption of unconstitutionality, Defendant must show
that his actions were narrowly tailored to serve a compelling government interest.6
See Reed, 576 U.S. at 163. This is a high bar in any case, and so here. Even assuming
arguendo that Plaintiff’s advertisement is “categorically false,” ECF No. 1-1 at 2,
and that countering it is a compelling government interest, Defendant’s actions are
not narrowly tailored. As the Supreme Court identified in Alvarez, the narrowly
tailored solution to alleged falsehoods is counterspeech. 567 U.S. at 726 (plurality
opinion). That is because the First Amendment embodies a “profound national
5 When asked why this case was not governed by Vullo, Defendant’s response was that
Vullo concerned the state exercising its regulatory authority “in an effort to stop the NRA from
engaging in constitutionally protected speech.” But “the difference here,” he argued, is that “the
specific words being expressed” in this case don’t fall “within the ambit of the First Amendment.”
ECF No. 23 at 36–37. But that is beside the point. In Bantam Books, on which Vullo relied, the
state threatened enforcement on the basis that the speech was allegedly obscene—which the
Supreme Court acknowledged was “not within the area of constitutionally protected speech or
press.” 372 U.S. at 59, 65. Here, as discussed above, Defendant has not even shown that the speech
falls within one of the “traditionally unprotected” categories, let alone that such a distinction would
remove this case from the ambit of Vullo and Bantam Books.
6 As discussed above, Defendant’s actions are presumptively unconstitutional whether
analyzed as viewpoint discrimination or unconstitutional coercion to suppress speech. Viewpoint
discrimination may be per se unconstitutional, see Honeyfund.com, 94 F.4th at 1278, but at a
minimum, it is subject to strict scrutiny, see Reed, 576 U.S. at 163. The Supreme Court in Bantam
Books declared that coercive threats created a system of prior restraint bearing a heavy presumption
of unconstitutionality but did not identify a standard of review. 372 U.S. at 70. Vullo, considered
at the motion-to-dismiss stage, simply stated that “a government entity’s ‘threat of invoking legal
sanctions and other means of coercion . . . to achieve the suppression’ of disfavored speech”
violates the First Amendment. 602 U.S. at 180. Because the Supreme Court has not clearly
identified the standard of review applicable to these cases, this Court applies strict scrutiny.
commitment to the principle that debate on public issues should be uninhibited,
robust, and wide-open.” Honeyfund.com Inc., 94 F.4th at 1283. For all these reasons,
Plaintiff has demonstrated a substantial likelihood of success on the merits.
C
As explained above, in addition to the likelihood of success on the merits,
three other factors influence the propriety of a temporary restraining order—namely,
whether “irreparable injury will be suffered if the relief is not granted,” whether “the
threatened injury outweighs the harm the relief would inflict on the” Defendant, and
“whether entry of the relief would serve the public interest.” Schiavo, 403 F.3d at
1225–26.
A First Amendment violation does not automatically require a finding of
irreparable injury. However, when the injury flowing from the violation constitutes
“direct penalization, as opposed to incidental inhibition of First Amendment rights,”
the injury cannot “be remedied absent an injunction.” KH Outdoor, LLC v. City of
Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006) (quoting Hohe v. Casey, 868 F.2d
69, 72–73 (3d Cir. 1989) (internal quotation marks omitted)). Here, Plaintiff has
shown a substantial likelihood of proving an ongoing violation of its First
Amendment rights through the threatened direct penalization of its political speech.
Therefore, this case involves a corresponding irreparable injury that cannot be
remedied without an injunction. Plaintiff intends to engage in protected activity that
is at serious threat of prosecution—namely, advocating in favor of Amendment 4 by
running its “Caroline” ad in the final days leading up to the general election. But
Defendant is threatening to prosecute anyone that continues to broadcast Plaintiff’s
political speech. One television station has pulled Plaintiff’s political advertisement
from broadcast. Accordingly, this Court finds that Plaintiff has satisfied the
irreparable injury prong for a preliminary injunction.
Likewise, the balance of hardships favors Plaintiff. This case pits the right to
engage in political speech against the State’s purported interest in protecting the
health and safety of Floridians from “false advertising.” It is no answer to suggest
that the Department of Health is merely flexing its traditional police powers to
protect health and safety by prosecuting “false advertising”—if the State can re-
brand rank viewpoint discriminatory suppression of political speech as a “sanitary
nuisance,” then any political viewpoint with which the State disagrees is fair game
for censorship. Moreover, the record demonstrates that Defendant has ample,
constitutional alternatives to mitigate any harm caused by an injunction in this case.
The State of Florida has actively undertaken its own anti-Amendment 4 campaign
to educate the public about its view of Florida’s abortion laws and to correct the
record, as it sees fit, concerning pro-Amendment 4 speech. The State can continue
to combat what it believes to be “false advertising” by meeting Plaintiff’s speech
with its own.
Similarly, this Court is persuaded that an injunction, at this juncture, would
not be adverse to the public interest. Instead, this Court finds that enjoining the
Defendant from threatening further enforcement against protected speech, “would
advance the public’s interest in freedom of speech.” FF Cosmetics, 866 F.3d at 1298.
Of course, the Surgeon General of Florida has the right to advocate for his own
position on a ballot measure. But it would subvert the rule of law to permit the State
to transform its own advocacy into the direct suppression of protected political
speech.
* * *
Whether it’s a woman’s right to choose, or the right to talk about it, Plaintiff’s
position is the same—“don’t tread on me.” Under the facts of this case, the First
Amendment prohibits the State of Florida from trampling on Plaintiff’s free speech.
Accordingly,
IT IS ORDERED:
1. Plaintiff’s motion for a temporary restraining order, ECF No. 2, is
GRANTED.
2. Defendant Ladapo is temporarily enjoined from taking any further
actions to coerce, threaten, or intimate repercussions directly or indirectly to
television stations, broadcasters, or other parties for airing Plaintiff’s speech, or
undertaking enforcement action against Plaintiff for running political
advertisements or engaging in other speech protected under the First
Amendment.
3. This order expires at 5:00 p.m. (ET) on October 29, 2024.7
4. The Clerk shall notice this matter for a preliminary injunction hearing
at 9:00 a.m., October 29, 2024.
SO ORDERED on October 17, 2024.
s/Mark E. Walker ____
Chief United States District Judge
7 This is well within the 14 days permitted under Rule 65.