Part of Florida’s “Stop WOKE Act” Blocked By Federal Appeals Court
The State of Florida, under the leadership of Republican Governor Ron DeSantis, enacted the Individual Freedom Act in the spring of 2022, which became effective July 1 of that year. The Act is commonly referred to as Stop WOKE, for Stop Wrongs to Our Kids and Employees but also referencing the modern term of wokeness which has come to mean having an awareness of social injustice. Among other restrictions, the new law regulates how private companies can teach diversity and inclusion in the workplace. Four companies objected to the Act because it “exceeds the bounds” of the First Amendment’s guarantee of freedom of speech by regulating workplace training on race, color and national origin.
On March 4 of this year, a three-justice panel of the United States Court of Appeal for the Eleventh Circuit upheld a trial court’s August 2022 injunction of the Act, issued by District Judge Mark E. Walker who found the Act to be “unconstitutionally vague and an unlawful content- and viewpoint-based speech restriction.” The appellate court’s order came as a result of a lawsuit filed by plaintiffs Honeyfund.Com, Inc., Chevara Orrin, Whitespace Consulting LLC, and Primo Tampa LLS. These companies sued because they sought to “host mandatory training sessions they characterize as highlighting “diversity, equity, and inclusion” issues. They say the Act “prohibits them from sharing their viewpoints.” Florida appealed, claiming an abuse of discretion.
In a unanimous opinion authored by Eleventh Circuit Court of Appeal Justices Charles A. Wilson, with concurrences by Justices Britt C. Grant and Andrew L. Brasher on March 4, the justices wrote, “This is not the first era in which Americans have held widely divergent views on important areas of morality, ethics, law, and public policy. And it is not the first time that these disagreements have seemed so important, and their airing so dangerous, that something had to be done. But now, as before, the First Amendment keeps the government from putting its thumb on the scale.”
The ruling begins by explaining the Individual Freedom Act. It says that Florida is seeking to bar employers from holding mandatory meetings that “endorse viewpoints the state finds offensive, but does not stop meetings if the speakers share the viewpoints approved by the state.” Grant calls these distinctions that are based on viewpoint “the most pernicious of dividing lines under the First Amendment.” He points out that Florida incorrectly insists the law does not restrict speech, only conduct. The State also claims that the Act is an anti-discrimination law.
The opinion quickly disagreed with both contentions, saying “We cannot agree, and we reject this latest attempt to control speech by recharacterizing it as conduct. Florida may be exactly right about the nature of the ideas it targets. Or it may not. Either way, the merits of these views will be decided in the clanging marketplace of ideas rather than a codebook or a courtroom.”
The words of the Act do little to offer clarity. According to the law’s description, employment training that “compels” employees to “believe specified concepts” constitutes discrimination based on race, color, sex, or national origin. The law therefore aims to revise requirements everywhere from training in private employment workspaces to classroom instruction, stating in general terms what subjects and topics will henceforth be prohibited from discussion under the law.
As the court noted, what is clear from the language of the Act is that the “rejected ideas” are all related to race, color, sex, or national origin. The court’s opinion continues by explaining that the Act does not bar discussions of these topics, only endorsements of topics that are not objectively put forth. Judge Wilson wrote that regardless of the various viewpoints that Florida communities may have, the Act “targets speech based on content… and penalizes certain viewpoints—the greatest First Amendment sin.”
Florida conceded that this is true but kept insisting that the Act was solely a “ban on conduct,” because only meetings, not speech, were restricted. Wilson added, “The only way to discern which mandatory trainings are prohibited is to find out whether the speaker disagrees with Florida. That is a classic—and disallowed—regulation of speech.” He went on to discuss allowable regulations under the First Amendment, which include “obscenity, fighting words, incitement and the like.” But he also explained that ‘”content-based restrictions of speech are presumptively invalid” and subject to strict scrutiny, which he said is an “exacting standard,” and one that reflects our Constitution’s fundamental commitment to the free exchange of ideas.
He also dismissed several inappropriate precedents that Florida tried to argue were similar restrictions not on speech, but on conduct. Wilson wrote that none of them were persuasive here because the Act’s “restrictions are obviously and admittedly content based.” After dismissing a series of the State’s arguments, he concluded that none of them “threaten(ed) our conclusion that Florida’s law contains an illegal per se ban on speech the state disagrees with.” The opinion concludes “We therefore AFFIRM the district court’s order preliminarily enjoining the operation of that provision.” A DeSantis spokesman told the Washington Post that the “state plans to appeal the decision.”
The Washington Post also pointed out that the Act’s concepts “were parroted from Executive Order 13950, issued by then-President Trump and rescinded by President Biden.
This Eleventh Circuit ruling, whether Florida wins its appeal or not, will not be the end of the Stop WOKE Act because the decision only covers enforcement of the law’s provisions that deal with training by private employers such as the plaintiffs. The entire Act, however, also covers training about race, color, sex, or national origin in public schools, colleges and universities.
News reports of libraries removing books and teachers revising lesson plans demonstrate the extreme consequences of the Act. The American Civil Liberties Union also filed for an injunction last July and received it in August. The Eleventh Circuit is yet to issue an opinion on the education-related section of the Act that the ACLU said “reaffirms the serious injury posed to educators and students.” Litigation may yet provide the Eleventh Circuit with the opportunity to follow its latest ruling with a decision on the classroom instruction and teacher training aspects of Florida’s law, which arguably have more critical and far-reaching consequences for generations of Floridians.
