We are all paying for DeSantis’ defiance of the First Amendment

Florida Gov. Ron DeSantis (R) is an attorney; he should know at least the rudiments of the U.S. Constitution. Then why would he propose an extremist law that is obviously unconstitutional, get his allies to push it through the Florida Legislature, and now announce that he will defend it in a federal appeals court after a judge slapped it down — all at taxpayer expense? 

Just how wrongheaded — and illegal — DeSantis’ HB 1 anti-protest law is was laid out Sept. 9 by U.S. District Court Judge Mark Walker. Walker blocked a major provision of the law and, along the way, gave the governor a refresher course in the Constitution.

DeSantis first proposed HB 1 in 2020 after the murder of George Floyd by a policeman in Minneapolis and the subsequent rallies calling for racial justice for Black lives. The overwhelming majority of protests in Florida were peaceful. DeSantis responded not by proposing legislation to address police brutality, but with a bill aimed at stifling peaceful and totally legal protest in Florida, especially by Black people. DeSantis was sued over the law by Dream Defenders and other Black-led organizations.

HB 1 attempts to violate basic freedoms by redefining the word “riot” in Florida statutes. Before HB 1, to be charged with rioting three or more people had to act with common intent to breach the peace in a violent manner. HB 1’s new “riot” definition is so vague and overbroad that it allows police to arrest a person for rioting if they simply are present at an event where three or more other people assist each other in violent and disorderly conduct resulting in actual or imminent danger of injury to another person or damage to property.

In other words, a person participating peacefully in a rally could be charged with a felony if three perfect strangers in the crowd turn violent. They could very well be strangers who oppose the cause in question, infiltrate the rally and commit an act of violence, purposely causing all the innocent protesters to be hauled off to jail. Such a possibility would certainly dampen the willingness of many Floridians to exercise their constitutionally guaranteed right to protest, which was the idea in the first place. In his ruling, Walker foresees the obvious dangers.

“If this Court does not enjoin the statute’s enforcement, the lawless actions of a few rogue individuals could effectively criminalize the protected speech of hundreds, if not thousands, of law-abiding Floridians,” he wrote. “This violates the First Amendment.”

Walker ruled that HB 1 is so vague and overbroad that it makes it unclear what it means to participate in a riot, and therefore also violates the Due Process Clause of the Fourteenth Amendment. 

“The vagueness of this definition (of rioting) forces would-be protesters to make a choice between declining to jointly express their views with others or risk being arrested and spending time behind bars, with the associated collateral risks to employment and financial well-being,” Walker wrote.

“HB1’s new definition of ‘riot’ both fails to put Floridians of ordinary intelligence on notice of what acts it criminalizes and encourages arbitrary and discriminatory enforcement, making this provision vague to the point of unconstitutionality,” he added. “Its vagueness permits those in power to weaponize its enforcement against any group who wishes to express any message that the government disapproves of.”

Again, DeSantis is an attorney. He’s supposed to know the First Amendment. But this isn’t the first time he’s signed into law a bill that violated basic tenets of freedom of expression. Earlier this year another federal judge halted DeSantis’ unconstitutional attempt to crack down on the Florida activities of social media companies. He did that after former president Donald Trump, a close ally of DeSantis, was kicked off of several platforms for spreading misinformation and fomenting threats to public safety, such as the Jan. 6 riot in Washington, D.C. 

U.S. District Court Judge Robert Hinkle ruled that in doing so DeSantis had violated the First Amendment rights of private social media companies that are entitled to set their own standards for users.

DeSantis is appealing that to the U.S. Circuit Court of Appeals in Atlanta, using yet more taxpayer resources to do so. A spokesperson for the governor has said he will also appeal the HB 1 ruling.  

Anyone who thinks DeSantis is on the right path with these attacks on freedom of expression should heed something else Judge Walker says in his ruling:

“While there may be some Floridians who welcome the chilling effect that this law has on the Plaintiffs in this case, depending on who is in power, next time it could be their ox being gored.”

In other words, next time it could be you. 

Micah Kubic is executive director of the ACLU of Florida.