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PolitiFact Florida: Are lawmakers protected by First Amendment against drug testing?

Miami Herald columnist Carl Hiaasen torched Florida lawmakers for passing a drug-testing bill for state workers that excluded one class of government employees: the elected officials who passed the law.

Hiaasen took particular issue with the proposal's House sponsor Rep. Jimmie Smith, a Republican from Lecanto, and his explanation why the law excludes Gov. Rick Scott and legislators.

"It was found to be unconstitutional to drug test elected officials because it prevents us, as citizens, from having that First Amendment right," Smith said.

Smith's defense is novel — and wrong, it turns out.

Smith told us he was referencing Chandler vs. Miller, a 1997 Supreme Court decision that overturned a Georgia law requiring candidates for office to pass a urinalysis drug test within 30 days of qualifying for the ballot.

Lower courts upheld the law, finding that the drug tests were okay because of the substantial trust voters hold for their elected officials. But the Supreme Court, in an 8-1 vote, overturned the lower courts, arguing the drug-testing requirement violated the Fourth Amendment, which protects citizens from unreasonable search and seizure.

"However well-meant, the candidate drug test Georgia has devised diminishes personal privacy for a symbol's sake," wrote Justice Ruth Bader Ginsburg for the majority opinion. "The Fourth Amendment shields society against that state action."

The law was not a response to a legitimate public safety concern about drug use among political candidates, Ginsburg continued, which might make blanket drug tests permissible.

The court did not factor the First Amendment into its decision, even though a Libertarian candidate-turned-plaintiff tried.

To recap: The Supreme Court tossed out a drug-testing requirement for candidates — not elected officials (as Smith said) — based on the Fourth Amendment, not the First (as Smith said). The law wasn't tossed out on the grounds that they were candidates, rather it was ruled invalid because it diminished someone's personal privacy.

We consulted First Amendment attorney Patsy Palmer to be sure we weren't missing something. "There is nothing that I know of which would extend First Amendment privileges exclusively to lawmakers in the field of urine testing," she said. "There's utterly no case law on that as far as speech is concerned."

We should note the American Civil Liberties Union, which has suggested it will sue over Smith's law, agrees that lawmakers should not be drug-tested. But not because of the First Amendment.

The group thinks state employees and elected officials should both be protected by the Fourth Amendment.

"If the Fourth Amendment applies in the halls of the Florida House of Representatives — and it does — it applies to other state office buildings as well," said ACLU spokesman Derek Newton.

Our ruling

Smith made the claim that elected officials have a special First Amendment protection from being tested for drugs. No court has gone close to that far. In a Georgia case, the Supreme Court ruled that candidates for office cannot be forced to take a drug test because it violates the Fourth Amendment — that's not the one dealing with freedom of speech.

Opponents to Florida's drug-testing law say the Fourth Amendment protects elected officials, candidates and state workers from being require to be tested for drugs.

While that issue will likely be settled in the court system, Smith's claim can be decided by the Truth-O-Meter. It's False.

The statement

"It was found unconstitutional to drug test elected officials because it prevents us, as citizens, from having that First Amendment right."

State Rep. Jimmie T. Smith, Feb. 24, in a House committee debate

The ruling

PolitiFact ruling: False
The court case Smith is referring to was about candidates for office, not elected officials. And it was thrown out because of the Fourth Amendment, not the First Amendment. Courts have not granted elected officials a special exemption from being tested for drugs. We rate this claim False.

PolitiFact Florida: Are lawmakers protected by First Amendment against drug testing? 04/01/12 [Last modified: Sunday, April 1, 2012 9:05pm]

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