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.