Q&A of the Day – Is Florida’s New Public Nuisances Law Anti-Free Speech?

Q&A of the Day – Is Florida’s New Public Nuisances Law Anti-Free Speech? 

Each day I feature a listener question sent by one of these methods.   

Email: brianmudd@iheartmedia.com  

Social: @brianmuddradio 

iHeartRadio: Use the Talkback feature – the microphone button on our station’s page in the iHeart app.    

Today’s Entry: @brianmuddradio I don’t approve of DeSantis signing an anti speech bill on his foreign trip. I’d like to hear you talk about this.  

Bottom Line: On Thursday, while in Jerusalem, Governor DeSantis signed the Public Nuisances, or anti-Semitism bill into law. The new law, which was drafted and passed based specifically around the rising incidents of anti-Semitic behavior in South Florida, is far wider reaching as it further defines illegal hate speech as being on the basis of one’s religion or ethnicity, to a felony. The bill was authored by Palm Beach County State Representative Mike Caruso who took it to the governor for the signing overseas. Since the signing I’ve heard from several people, including the listener who sent this note – all expressing concerns about the new law inhibiting free speech. Notably, the legislation passed both chambers of the Florida legislature unanimously, so this legislation was anything but partisan in its passage. Did the legislature pass a bill and did Governor DeSantis sign something into law that inhibits our First Amendment rights? 

In time, if the new law truly inhibited freedom of expression, a legal challenge bought to it would result in a court striking the law down. In that respect there will be a settled answer in time. For now, let's look at what the law actually does and how the language reads. Here’s the official summary of the law: 

Prohibits person from distributing onto private property any material for purpose of intimidating or threatening owner, resident, or invitee; prohibits person from willfully & maliciously harassing, threatening, or intimidating another person based on person's wearing or displaying of any indicia relating to any religious or ethnic heritage; requires violations be reported as hate crimes; prohibits display or projection of images onto building, structure, or property without permission; prohibits person who willfully enters campus of state university or Florida College System institution for purpose of threatening or intimidating another person from remaining on such campus after being warned to depart. 

The key to this law, in understanding its constitutionality and also what it’s effectively done, rests within one word. Private. The First Amendment’s protections for freedom of expression apply to public spaces. They don’t apply to private property. Private property rights allow the owner of the property to regulate acceptable speech on their property. Though seldom discussed this is readily understood. We’re all aware we can’t walk into a place of business, say whatever we want and conduct ourselves however we want, without recourse for the business owner. Likewise, people understand that employers are able to terminate employees for their personal conduct and speech if it reflects poorly on their employer.  

In the grand scheme of settled Constitutional law, private vs. public speech rights are about as settled as they come. The United States Supreme Court has taken up three related cases historically, the most recent of which was in 1980, all finding private property owners can regulate speech on their property. And practically if you think about it, that makes sense. Should anyone have a right to come to your home and say whatever they want to you without you having any recourse? Of course not. And that principally is where I respectfully disagree that Florida’s new law is anti-free speech. The law didn’t inhibit freedom of expression. What it did was provide greater recourse for victims of what is already unlawful expression. 

Harassment is already against the law. Likewise, trespassing is as well. However, the penalties for those actions are light, so much so that effectively law enforcement’s role if they respond is to see to it that it stops. Rarely in those circumstances are there arrests made and prosecutions sought. What we’d seen specifically with anti-Semites in recent years has been an effort to maximize the impact of unlawful speech while attempting to distance themselves from recourse for the behavior. This has commonly come in two forms. Distributing hateful messages onto private property and projecting them onto private property. The projecting of messages on private property was a legal loophole which had become exploited by anti-Semites which was the final straw leading to the creation of the legislation. Again, should someone be able to project whatever message they want to onto your home? Should someone be able to come onto your property and distribute materials you find highly offensive? Unless the answer to those questions is yes, there’s nothing that’s principally changed with this law pertaining to speech except providing real teeth to what was already unlawful expression. By making offenses felonies as opposed to weak misdemeanors, it’s much less likely unlawful speech will be perpetuated and there’s real recourse for those targeted by unlawful speech if it does occur.  


Sponsored Content

Sponsored Content