Judge strikes down Florida censorship of nonpartisan candidates

January 19, 2023   •  By Tiffany Donnelly   •    •  

This piece originally appeared in the South Florida Sun-Sentinel on January 11, 2023. 


You’ve probably heard Florida has what some call a “Don’t Say Gay” law. But did you know it had a “Don’t Say Political Party” law?

Until recently, Florida prohibited candidates in nonpartisan races from telling voters true information about their party affiliation.

When Escambia County School Board candidate Kells Hetherington chose to describe himself as a “lifelong Republican” in his candidate statement on a county website in 2018, Florida officials fined him. He wanted to make a similar statement when he ran for the same office in the last election, but refrained because he didn’t want to get fined again.

So Hetherington, with the help of attorneys at the Institute for Free Speech – a nonprofit that promotes and defends First Amendment rights – challenged the constitutionality of the law.

The Institute argued that while Florida is free to create nonpartisan races, the state can’t prohibit candidates from telling voters their party affiliation. Candidates have a First Amendment right to say they are Democrats, Republicans, or members of any other party.

Candidates have limited time and opportunity to communicate with voters. This is especially true in down-ballot races where it’s harder for a voter to get information on these more obscure races. For those candidates, expressing their party affiliation is an invaluable way to demonstrate to voters roughly what their political values are. In recent school board races, for example, it could take a significant effort to explain to voters one’s position on an array of controversial topics like critical race theory, curriculum choices, or content in school libraries.  But Democrats and Republicans generally approach these subjects in different ways. By telling voters your party, a candidate can quickly and effectively signal their general views. In that way, partisan descriptors are helpful to candidates and voters alike.

But under the challenged law, party affiliation is banned- and only for some. Because candidates are permitted to communicate their “partisan-related experience”, a hypothetical opponent of Mr. Hetherington could tell voters, “I am a member of the executive committee of the Republican Party” without breaking any rules or being subject to any fines while Hetherington was prevented from using the phrase “lifelong Republican.”

Similarly, because the statute only applies to official candidates, a nonpartisan officeholder could say he is a “lifelong Republican” up until the day before he announced his candidacy for re-election.

But when Hetherington did so? He was fined and silenced.

Not anymore. In November, U.S. District Judge M. Casey Rodgers of the Northern District of Florida, Pensacola Division recognized that the First Amendment protects Hetherington’s right to express his party affiliation.

Rodgers noted that the challenged statute allows the candidate to “dance around the issue of partisan affiliation, so long as they do not utter a few magic words.” She ruled that the statute is unconstitutional and ordered the state to stop enforcing it against any candidate.

Speaking out about his victory, Kells Hetherington said, “I thought the First Amendment protected my right to tell voters that I am a Republican and I’m pleased the Court agreed. It’s ridiculous that Florida fined me for giving truthful information to voters, and hopefully, this will never happen again to any other candidates.”

Here’s to hoping he’s right.

Tiffany Donnelly

Share via
Copy link
Powered by Social Snap