I am sure most of you have been following efforts of the Florida government to oppose Amendment 4.
The most recent controversy surround an ad titled "Caroline;"it features a pregnant woman with terminal cancer who wanted to terminate her 20+-week pregnancy to receive life-extending (but not life-saving care) and states that she could not obtain that abortion under current Florida law (but could under the law Amendment 4 would create). The state responded by sending letter to several tv stations demanding they stop running the ad; because they insist the statement that Caroline could not receive an abortion is false, they threatened prosecution or civil enforcement for public nuisance for making false statements that could injure the public. Recent reports state that the state has hired private law firms to pursue these cases. Floridians Protecting Freedom, the initiative sponsor, filed an EpY/§ 1983 action against the state surgeon general and the lawyer who signed the letter to the tv stations, seeking a declaration that threats violate the First Amendment (and, necessarily, a declaration that the ad is constitutionally protected).
This reflects EpY in action. Rather than wait for state enforcement--and knowing that they suffer harm in the interim should any tv stations yield to the threat and pull the ads--they take the offensive and go to (federal) court first.
The case raises some interesting issues beyond EpY, namely standing (. The state directed the threats at the tv stations and the tv stations would be the targets of any enforcement action (although FPF likely could and would intervene in that suit). So this is a bit different than the typical EpY, in which the state defendant is the state plaintiff. We get to standing after 11th Amendment, perhaps as early as next Tuesday, stay keep this in mind.
Update: That was fast. The standing analysis begins on p.4; it will make more sense in a couple weeks. For purposes of what we already have covered, note that the order is styled a TRO and expires in 14 days and thus us not immediately reviewable. But it issued following adversarial proceedings, albeit fast and limited. It is possible that, should the state attempt to appeal, the 11th Circuit might treat it as a preliminary injunction.
Also, a PR moment: The lawyer who wrote the letter quit, loudly (contains link to a paywalled Herald article, if you have subscription)--"A man is nothing without his
conscience. It has become clear in recent days that I cannot join you on
the road that lies before the agency." Note that this course was obvious before and while he was writing that letter. And resigning after the fact did not stop him from getting sued.
