Florida Elections Commission learns expensive free speech lesson

June 21, 2023   •  By Tiffany Donnelly   •    •  

This piece originally appeared in the Tallahassee Democrat on June 21, 2023.


If you can dish it out, you’ve got to be able to take it. That’s a lesson the Florida Elections Commission (FEC) is learning the hard way.

The state agency tasked with regulating campaigns is usually the one fining others for breaking the law. But recently, the FEC forked over $175,000 in plaintiff’s attorney’s fees for violating the political speech rights of Pensacola resident Kells Hetherington.

Hetherington ran for Escambia County School Board, hoping to use his experience in finance to help the county’s public schools. While he was happy to highlight his expertise with potential voters, Hetherington feared revealing his party membership, and for good reason. In a previous run for school board, the commission fined him $200 for telling voters that he was a “lifelong Republican” in a nonpartisan race.

Hetherington, with the help of the Institute for Free Speech – a nonprofit that promotes and defends First Amendment rights – filed a federal lawsuit challenging the Florida law he was punished for violating.

Hetherington’s attorneys argued that, while Florida is free to create nonpartisan races, the state cannot prohibit candidates from communicating their party affiliation to voters, especially since that information is a useful shorthand for conveying a set of beliefs and ideas.

In November, a federal judge agreed with Hetherington that candidates have a First Amendment right to speak to voters about their party membership. She ruled that Florida Statute 106.143(3) is unconstitutional and ordered the state to stop enforcing it against any candidate. Consistent with the judgment, in April, the FEC paid $175,000 for attorney’s fees as provided by federal law.

The Hetherington v. Madden decision means that candidates for nonpartisan offices in Florida are now free to express their party affiliation without being fined by the FEC.

It’s not just a win for the First Amendment, it’s also a victory for voters, who can now more clearly and quickly learn truthful information about candidates. This is especially valuable in crowded fields where candidates have limited opportunities to communicate.

Some worry the ruling will increase volatility in future school board races. But school board elections are already politically charged, even without candidates saying “magic words” like “Republican” or “Democrat.” The intensity of a candidate’s partisanship does not change just because he can suddenly express his party affiliation out loud. A candidate was already permitted to walk and talk like a duck, but he was fined for saying he was one.

Gov. DeSantis had the right idea when he lauded the victory earlier this year, noting that we should embrace candidates self-identifying how they wish. At a press conference, DeSantis remarked, “[T]he reality is, people should be able to run for office how they want to run for office. They have a First Amendment right to do that. They can identify with a party or not.”

Florida voters now have more transparency than ever about the candidates on the ballot. If a candidate doesn’t identify with a party, she won’t be forced to pretend that she does. Voters can decide for themselves if partisan affiliation is important. The more access voters have to truthful information about candidates, the better.

The Florida Elections Commission will hopefully be more careful about respecting the political speech rights of candidates from now on. But Hetherington’s case should serve as a warning to all states that they cannot limit a candidate’s right to convey basic political messages to voters without violating the First Amendment.

Tiffany Donnelly

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