By Yaël Ossowski | Florida Watchdog
ST. PETERSBURG — Free speech is a great idea, but it doesn’t extend to military funeral protesters and political smear campaigns.
That’s the attitude of several Florida state lawmakers throwing their weight behind a pair of bills, each establishing restrictions on speech that could be considered either harmful or disgraceful and handing out big penalties for those who run afoul of the established rules.
Florida’s legislative session doesn’t officially begin for another three months, but that hasn’t stopped lawmakers from imposing new rules.
The first bill, SB 114, sponsored by state Sen. Maria Sachs, D-Boca Raton, aims to make it a felony for groups to put out intentionally misleading or false political advertisements.
The push behind Sachs’ bill most likely stems from the barrage of accusations launched her way in the recent election, including claims that she billed luxury limousine companies for public travel expenses and ran up the tab in order to pocket the money.
“It’s gotten to the point where we’ve become overloaded with negative ads that are defamatory and do not directly go back to a candidate,” Sachs told Florida Today. “The law needs to be expanded to bring in electioneering committees to follow the same rules that political candidates follow – and that is truth in politics.”
Her proposal also would require that political candidates file an oath along with every campaign ad, swearing by penalty of perjury that the “content of the political advertisement is truthful,” according to the bill.
If groups run an ad that is found to be libelous or misleading, they could be fined up to $5,000.
“The courts have generally said that you need a free and robust public debate and sometimes that means you’ll have mistaken statements made,” said Timothy Lenz, a professor of political science at Florida Atlantic University in Boca Raton.
He said the proposed law leaves a lot of room for abuse of free speech and expression in politics and would likely be struck down by any court.
“So many ads are not dealing necessarily with truth or falsities, but interpretation. Even if you were to write a statute that provided for recovery of damages from clear false statements, I’m not sure whether it’d pass muster,” Lenz said.
“You’re dealing with public officials and public figures,” he told Florida Watchdog. “At some point, that means they’ll have to put up with harmful or false statements made about them much less than allegations about their positions on the issues.”
The anti-Westboro law
Another bill tabled this week in Tallahassee by state Sen. Lizbeth Benacquisto, R-Fort Myers, would target “unlawful protesters” at funerals of specific groups.
The federal ban, initially proposed by U.S. Sen. Olympia Snowe, R-Maine, was intended to stop the Topeka, Kan.-based Westboro Baptist Church, which routinely pickets and protests military funerals because they say military deaths are “ordered by God” as a result of “America’s sins,” such as homosexuality, abortion and adultery.
Florida’s proposed law would extend the protest-free radius to 500 feet from the funeral, burial or memorial service of fallen soldiers, first responders, politicians and anyone under the age of 18.
Both the federal and state laws have been proposed in spite of last year’s Supreme Court ruling on protected free speech at military funerals, upheld by a majority on the bench.
“Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to special protection under the First Amendment,” Supreme Court Chief Justice John Roberts wrote in the majority opinion.
‘Picking and choosing speech’
Critics point out both the funeral protest bill and the bill on misleading political ads are taking the wrong attitude toward free speech.
“Surely the Legislature has better things to be doing than working on new ways to limit the speech of Floridians,” said Baylor Johnson, spokesman for the ACLU of Florida. ”Both of these bills clearly have First Amendment implications.”
He said the most important part of the First Amendment to the Constitution protects speech that is considered unsavory by the majority of the population.
“Expression – including unpopular and even ugly expression—is protected by the First Amendment. Laws that broadly restrict the ability of individuals to express themselves, or that target certain kinds of speech based on who is speaking, who is being spoken to, or the content of the speech would be subject to a First Amendment challenge,” Baylor said.
“We don’t believe the answer to ugly or hateful speech is censorship or silencing speakers, especially when the proposed restrictions are so broad that they could rope in and restrict the speech of others. We believe the answer is more speech, and that the role of government is to protect the rights of all to express themselves, not pick and choose what kinds of speech get expressed in our state.
State lawmakers begin their session on March 5 in Tallahassee.
Contact Yaël Ossowski, Watchdog.org’s Florida Bureau Chief, at Yael@Watchdog.org
— Yaël (@YaelOss) December 19, 2012