Florida abortion laws that made its largest student newspaper break away from the University of Florida more than 50 years ago have rattled the outlet again decades later.
The Independent Florida Alligator, a student newspaper based in Gainesville that covers the University of Florida and its surrounding community, rejected a medical nonprofit’s bid to run an advertisement last week promoting abortion pill access for Florida students, in fear of violating a Florida statute that bans such ads.
Shaun O’Connor, the newspaper’s general manager, said in a statement posted to the paper’s public alumni Facebook group that he made the decision to not run the ad under legal advice. He believed, however, that the statute expressly prohibited the ad’s publication. “My personal views, my beliefs on the constitutionality of the law on the books were not determining factors,” he wrote.
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The Alligator’s editorial board wrote on Thursday that it was not consulted prior to O’Connor’s decision and would publish its own story on the ordeal. O’Connor said that, if the editors chose to publish the ad as part of their news story, he would not interfere. “I have their back unconditionally,” he said. “I will defend them unconditionally.”
That law in question, Florida Statute 797.02, makes it a first-degree misdemeanor to print an advertisement that promotes abortion pills or advises people on where they can access abortion pills. Violation of the law could risk a one-year prison sentence or a fine of $1,000.
A version of the law was struck down as unconstitutional in the 1970s and, according to legal experts who spoke with The Daily Beast, its current iteration is decidedly in violation of the First Amendment.
The advertisement in question read, “Abortion pills. Through the mail. Even at UF.” It was produced by Mayday Health, a nonprofit that provides information on abortion pill access. Similar advertisements have run in Florida, including a placement in the April 19 edition of the Miami Herald. “DeSantis doesn’t want you to know: you can still get abortion pills by mail in all 50 states,” the Herald ad read.
“We at Mayday Health know the unjust environment this paper must operate in—both at the University of Florida where their current President has extremist views on abortion and in the state of Florida where Gov. Ron DeSantis has enacted multiple laws that attempt to suppress and punish free speech,” said Dr. Jennifer Lincoln, the nonprofit’s executive director,in a statement to The Daily Beast. “We also know that statute 797.02 is brazenly unconstitutional as it violates the First Amendment right to free speech—and if it were enforced against us by a prosecutor, we would be prepared to challenge it.”
The statute’s sheer perseverance over time reflects an increasingly conservative political climate in Florida, one where a legislature has effectively rubber-stamped Republican Gov. Ron DeSantis’ agenda with potentially damaging effects on some constitutional rights.
“I’m not in Florida, but it does not look like a happy place for free speech,” Bruce Johnson, a lawyer who specializes in First Amendment issues involving commercial speech and co-authored the treatise Advertising and Commercial Speech: A First Amendment Guide, told The Daily Beast. “DeSantis’ Florida is not something that I would want to fight unless I had unlimited resources to do it.”
The statute itself has a checkered past. A Florida judge struck down the law in 1971 (at the time, it banned the publication of abortion information) after a college newspaper editor published a list of abortion referral agencies. The judge at the time said the section violated both the United States and Florida constitutions.
The newspaper in question was The Florida Alligator, then under the purview of the University of Florida. The paper was later pushed off Florida’s campus and became The Independent Florida Alligator, now owned by Campus Communications. (Full disclosure: This reporter was employed by the Alligator for eight months between 2020 and 2021.)
In a Facebook post on the public alum group, that editor—Ron Sachs, now a media consultant in Tallahassee—said O’Connor made the best possible decision under Florida’s political climate and that the paper’s editorial staffers make the ad’s contents available to readers.
“That cynical political superpower being exercised on a daily basis in Florida's state executive and legislative branches seems fearless in its actions to take down opposition—be it Disney World or duly elected local officials,” Sachs wrote. “Right or wrong, that is the kind of power being wielded in our state today.”
Since then, the statute has been rewritten to ban the advertisement of medication used to induce abortions. Still, its constitutionality has been questioned by legal experts on the basis of its free speech restrictions.
Lawyers who spoke to The Daily Beast pointed to the 1975 Supreme Court decision in Bigelow v. Virginia, which ruled that commercial speech was protected by the First Amendment. The case, coincidentally, centered around an advertisement placed in a Virginia newspaper that provided resources to obtain an abortion in New York, where it was legal at the time.
“As Bigelow showed, back in 1975, basically dealing with facts that preexisted Roe v. Wade, advertising a legal product or service was protected by the First Amendment, period,” Johnson said.
Abortion pills are currently legal in Florida. DeSantis signed a law in April that restricted access to such pills and banned the mailing of them, but its effective date is contingent upon the Florida Supreme Court upholding the state’s current 15-week abortion ban. The court heard oral arguments in the case on Friday.
The April law, which does not ban abortion pills entirely, also limits abortions to six weeks.
“At the end of the day, it’s a lawful product, and I think there’s definitely a way for a college student newspaper to run these ads—they may need to include some disclaimers—that would be lawful,” said Mike Heistand, a senior lawyer with the Student Press Law Center (SPLC).
Another legal protection is the Central Hudson test, a four-part standard established by a 1980 Supreme Court case that determined whether a restriction on an advertisement violated the First Amendment. The prongs include whether the advertisement is protected speech, especially if it advertises a lawful activity; the government’s interest in regulating the speech; whether the regulation advances the government’s interest; and if there is a less intrusive way to accomplish the government’s goal.
Both Heistand and Johnson found the law did not meet such thresholds—but it did, however, reflect the political reality within the state.
“It’s chilling the speech,” Heistand said. “I’m sure there’s some concern of the legality, so it definitely has a chilling effect.”
O’Connor said in an interview that he considered some of the federal cases protecting commercial speech and acknowledged the paper’s history with abortion issues, but he said his decision not to run the ad was necessary to protect the paper. If the law changed, he said, he would revisit the issue.
“I did what I thought best protected my organization,” he said. “Knowingly challenging a law that’s on the books in 2023 did not do what I felt was best for this organization.”
For the law to be ruled unconstitutional would require such a challenge, whether by a test case or through a preemptive request with a judge. The latter is hard to obtain because of issues involving standing, Johnson said, and the former can be financially prohibitive with a risk of jail.
“Does anybody want to risk their lives, fortunes, and possibly jail time to test a law?” Johnson said. “I will never second guess somebody who says I want to publish as much as I can but I’ve got a family to support.”
Hiestand, the attorney at the SPLC, said a number of organizations—including his own—would likely jump to help the paper if it chose to test the law.
“Right now, you kinda got to pick your battles. Maybe they want to wait and see who would help them,” he said. “If it is fear of the law, they would probably find a number of allies out there.”
