By: Taylor Brewer
Published: August 7, 2025
In 2024, Florida was one of the many states to propose an amendment to its state Constitution to protect the right to abortion.[1] Amendment 4 would have both protected abortion up to the point of viability and permitted abortion after viability to protect the patient’s health.[2] While the amendment received fifty-seven percent of the vote, it did not meet the sixty percent threshold required for an amendment to pass.[3]
The intense campaigning from both sides leading up to the vote resulted in the state taking a public position against the amendment.[4] Florida’s Agency for Health Care Administration launched a website to oppose the amendment and ran public service announcements directing people to visit the page.[5] The Agency argued that Florida is protecting life and opponents to the state’s abortion ban are fearmongers who are spreading dangerous and inaccurate information.[6] While it is common practice for public offices to maintain political neutrality, governments are allowed to speak on topics of public concern, and they are allowed to pick sides.[7] Courts have accepted it as necessary that governments have some control over certain aspects of speech, such as setting curriculum in public schools;[8] however, Florida did not stop at promoting its own message—it also attempted to prevent supporters of the amendment from campaigning.[9] In doing so, the State spent a substantial amount of taxpayer dollars on partisan political advertising, sparking calls for legislative reform.[10]
State Surgeon Joseph Lapado and John Wilson, the then-top attorney at the health department, sent letters to television stations on October 3rd, instructing them to cease running a pro-choice advertisement.[11] The specific advertisement targeted was sponsored by Floridians Protecting Freedom, an organization campaigning to put abortion on the ballot.[12] The advertisement depicted a woman named ‘Caroline,’ who told a narrative story about her discovering that she had brain cancer twenty weeks into her pregnancy.[13] ‘Caroline’ stated that, due to the current law banning abortions after six weeks in Florida, she would be unable to get an abortion—even to save her own life.[14] Her message emphasized that her inability to get an abortion would mean that “I would lose my baby, I would lose my life, and my daughter would lose her mom.”[15]
In their letters to the television stations, Lapado and Wilson claimed this advertisement was false and dangerous because there are exceptions to the abortion statute to save the woman’s life.[16] They stated that by showing the advertisements, the television stations were disseminating false information and potentially putting pregnant individuals who believed the advertisement in danger.[17] Lapado and Wilson claimed legal authority under a Florida statute authorizing the Department of Health to remove nuisances as the basis for their notice.[18] The letter threatened criminal prosecution if the television stations failed to remove the advertisement from the air.[19]
Floridians Protecting Freedom sued Lapado, claiming the government was censoring speech in violation of the First Amendment.[20] They requested and received a temporary injunction from Judge Mark Walker of the Florida Northern District Court.[21] Judge Walker stated that the government could not suppress political speech it disagreed with under the guise that it is false.[22] In his own words, “It’s the First Amendment, stupid.”[23] Judge Walker found that because the actions of Lapado and Wilson constituted viewpoint discrimination, the letter needed to be narrowly tailored to serve a compelling government interest.[24] Even if the speech of the advertisement was false, as claimed, Judge Walker stated that the First Amendment encourages public debate on the issues, not a banning of one side.[25]
The suppression of disfavored speech is not new—nor is it permissible under the First Amendment.[26] The Supreme Court has repeatedly affirmed the right of individuals and groups to speak in ways that offend, including those that espouse hate speech such as members of the Ku Klux Klan and neo-Nazis.[27] However, the First Amendment has faltered on the principle that “Congress shall make no law…abridging the freedom of speech.”[28] The Supreme Court has permitted the limitation of the First Amendment in several ways, usually when necessary to protect the health and safety of others.[29] Though ultimately unsuccessful, Lapado and Wilson attempted to make this health and safety argument to prevent the pro-choice message from spreading.[30] However, in order for the First Amendment to maintain legitimacy, it must permit the free and uninhibited exchange of ideas—even those that are disfavored and abhorrent.[31] Without its protections, the government may simply bar speech and ideas that it disagrees with, a growing concern that people in the United States face every day.[32]
While Florida’s Amendment 4 ultimately did not pass, the Florida legislature has proposed a bill that would limit the spending of government funds on political advertising related to issues on ballot measures.[33] Limiting the amount of money that the government is allowed to spend on ballot measures could help prevent it from infringing on the First Amendment. However, the proposed bill would only limit the proliferation of government speech, not necessarily prevent the government from suppressing speech it disagrees with.[34]
While the government is generally unable to restrict the free speech of individuals, there is a distinction between the government speaking on behalf of itself and the government preventing others from contradicting its viewpoint. Ultimately, First Amendment violations are determined on a case-by-case basis, balancing the interests of the government with the interests of the people. Judge Walker makes a compelling point that the First Amendment was intended to prevent the government from creating narratives beyond suspicion or questioning, under the guise of “truth.”[35] He states that the government should not have a monopoly on the “truth” because the Founders intended that it should be up to each individual person to determine that for themselves.[36] Without the Constitutional safeguard, the government could engage in broad viewpoint discrimination under the guise of eliminating falsity.[37] That each individual may learn and grow to form their own beliefs by discussing controversial or disfavored viewpoints is the core of the First Amendment—whether we like it or not.
[1] 2024 abortion-related ballot measures and state context, Ballotpedia, https://ballotpedia.org/2024_abortion-related_ballot_measures_and_state_context (last visited June 12, 2025).
[2] See id.
[3] Briana Trujillo, Florida Amendments 3 & 4 got the majority vote, but still didn’t pass. Here’s why, NBC6 S. Fla. (Nov. 6, 2024, 6:46 PM), https://www.nbcmiami.com/news/local/amendments-3-and-4-got-the-majority-vote-but-still-didnt-pass-heres-why/3465584/.
[4] Romy Ellenbogen & Lawrence Mower, Florida pushed anti-abortion nonprofit to run ads against Amendment 4, Tampa Bay Times (April 25, 2025), https://www.tampabay.com/news/florida-politics/2025/04/23/desantis-abortion-amendment-pregnancy-center/.
[5] Romy Ellenbogen, Florida health agency launches anti-Amendment 4 site, spurs complaints, Tampa Bay Times (Sept. 6, 2024) https://www.tampabay.com/news/florida-politics/2024/09/06/florida-abortion-amendment-ahca-website-desantis/.
[6] See id. (including a tweet from Jason Weida—Chief of Staff to Ron DeSantis—advertising the website, stating that it is an “improved transparency page” meant to clarify abortion laws in Florida).
[7] See Pernell v. Fla. Bd. of Governors of State Univ. Sys., 641 F.Supp.3d 1218, 1237-38 (N. D. Fla. 2022) (recognizing the tension between government speech and speech of the government’s employees).
[8] See id. (determining that the state went too far in setting educational standards by engaging in viewpoint discrimination).
[9] Geoff Mulvihll, Abortion rights group sues after Florida orders TV stations to stop airing ad, Associated Press (Oct. 16, 2024, 10:45 AM), https://apnews.com/article/florida-abortion-commercial-desantis-lawsuit-979cd3059d79c92a2b8038585fa922e0.
[10] See Floridians Protecting Freedom, Inc., v. Lapado, 754 F. Supp. 3d 1165, 1171 (N.D. Fla. Oct. 17, 2024) (noting that Plaintiff did not challenge the State’s ability to spend “millions” of taxpayer dollars advocating against Amendment 4); Kate Payne, Florida sued for using taxpayer money on website promoting GOP spin on abortion initiative, Associated Press (Sept. 13, 2024, 12:24 PM), https://apnews.com/article/florida-abortion-amendment-4-website-lawsuit-de510053ee9799d6d6da3d4b203052f3 (discussing an earlier suit by the ACLU arguing that the state was unlawfully using taxpayer funds).
[11] Brief for Petitioner, at 3, Lapado, 754 F. Supp. 3d 1165 (No. 4:24-cv-00419-MW-MAF).
[12] Floridians Protecting Freedom, https://floridiansprotectingfreedom.com/.
[13] Yes on 4 Florida, Caroline, YouTube (Oct. 1, 2024), https://www.youtube.com/watch?v=7jJiEE_AkPA.
[14] See id.
[15] See id.
[16] See Brief for Petitioner, Exhibit A, Lapado, 754 F. Supp. 3d 1165 (No. 4:24-cv-00419-MW-MAF).
[17] See id.
[18] See id.; Fla. Stat. § 386.03(1) (2025).
[19] See Exhibit A, Lapado, 754 F. Supp. 3d 1165 (No. 4:24-cv-00419-MW-MAF); Lapado, 754 F. Supp. 3d at 1172 (finding that at least one television station found the threat credible and removed Floridians Protecting Freedom’s advertisement from the air).
[20] See Brief for Petitioner, at 2, Lapado, 754 F. Supp. 3d 1165 (No. 4:24-cv-00419-MW-MAF).
[21] Lapado, 754 F. Supp. 3d at 1170.
[22] See Lapado, 754 F. Supp 3d at 1171.
[23] See id.
[24] See id. at 1176.
[25] See id. (citing United States v. Alvarez, 567 U.S. 709, 726 (2012)).
[26] See id. at 1171.
[27] See Brandenburg v. Ohio, 395 U.S. 444 (1969) (ruling in favor of the defendant, a member of the Ku Klux Klan, who broadcasted statements arguing that the country was suppressing the white race and that if these actions continued, “revengeance” may have to be taken); R.A.V. v. St. Paul, 505 U.S. 377 (1992) (striking down St. Paul City’s Bias-Motivated Crime Ordinance that targeted hate speech, such as a burning cross or a Nazi swastika).
[28] U.S. Const. amend. I (emphasis added); Schenck v. United States, 249 U.S. 47 (1919) (creating the clear and present danger test to determine whether speech was protected under the First Amendment); Samantha Barbas, The Story of New York Times v. Sullivan: How Free Speech Rights Were Intertwined With The Civil Rights Movement, 15 ConLawNOW 207, 211 (2024) (discussing how libel laws limited freedom of speech).
[29] See Carey Brian Meadors, Comment, Time to Reflect: When Should “Dangerous” Speech Lose its First Amendment Shield, 36 Ct. Rev. 46, 47 (1999) (describing the various types of unprotected speech including examples of obscenity, libel, and incitement).
[30] See Lapado, at 1171.
[31] See Meadors, supra note 29 at 54 (examining a Fourth Circuit case about the book Hit Man and arguing that expanding the categories of non-protected speech is poor public policy).
[32] See id. at 54 (arguing that banning disfavored speech provides a slippery slope that could lead to government restriction of speech reminiscent of the Sedition, Comstock, and Espionage eras). But see, Alexander Tsesis, Deliberative Democracy, Truth, and Holmesian Social Darwinism, 72 SMU L. Rev. 495, 496 (2019) (arguing that the ‘marketplace of ideas’ approach to the First Amendment suppresses minority views and the Court should adopt a balancing test to analyze restrictions on free speech).
[33] See Mitch Perry, Committee would ban use of state funds to advocate on ballot measures, Fla. Phoenix (Mar. 10, 2025, 5:28 PM), https://floridaphoenix.com/2025/03/10/committee-would-ban-use-of-state-funds-to-advocate-on-ballot-measures/ (discussing the support and opposition to the proposed bill).
[34] See id.
[35] See Lapado, at 1171.
[36] See id.
[37] See id. at 1177