Wannabe Censor Ron DeSantis Is Now 0 For 2 With His Censorship Bills: Court Throws Out His ‘Stop WOKE Act’ As Unconstitutional
from the censorship-for-freedom dept
Ron DeSantis likes to pretend that he’s in favor of free speech. He talks about free speech quite frequently. But the fact is that he’s a garden variety authoritarian censor in a cheap suit. He keeps passing culture war pro-censorship bills that try to stifle the free speech rights of his critics — quintessential anti-1st Amendment censorship. And each time people, rightly, sue to protect their rights. And each time, DeSantis has to waste taxpayer money to defend his indefensible bills. And each time he loses as courts point out that, dude, the 1st Amendment doesn’t allow you to do that shit.
As you’ll recall, we wrote quite a bit about his attempt to block the editorial rights of websites with his content moderation bill. That bill was declared unconstitutional by both the district court and the appeals court (the latter with an opinion written by a Trump-appointed judge who many people insisted to me would certainly rule in favor of Florida).
But, of course, DeSantis has many culture wars to fight and many libs to own if he’s going to keep his name in the headlines to support his eventual White House bid as “Trump, but more competently authoritarian, rather than bumbling.” So he’s passed a bunch of similarly blatantly unconstitutional laws, including his bill to punish Disney for… mildly suggesting that DeSantis’ culture war attacks were not great.
Perhaps the blatantly unconstitutional bill that has received the most attention was DeSantis’ “Stop WOKE Act,” also called the “Individual Freedom Act” (or IFA, which is its official name and how it’s referred to by the court below). That bill, which (falsely) claimed to be an “antidiscrimination” law, attempted to ban a bunch of practices designed to bring about more diversity in the work place, and like so many bills these days, opened up companies to frivolous nuisance lawsuits by the public.
A Florida based tech company, HoneyFund, sued DeSantis over the law, and a district court has now granted a preliminary injunction blocking the enforcement of the law and saying it’s clearly unconstitutional. The court also sorta rejected DeSantis’ claim that he’s not the proper defendant — though it denied the part of the injunction targeting him, noting that he’s not really the guy enforcing the law (the injunction instead goes towards other Florida officials, such as the Attorney General of the state).
The federal judge, Mark Walker, recognizes the nonsense that is coming from the governor’s office these days. The opening of his ruling even cites that Netchoice v. Moody case (the social media content moderation law) to highlight how Florida and DeSantis are trying to ignore the 1st Amendment:
In the popular television series Stranger Things, the “upside down” describes a parallel dimension containing a distorted version of our world. See Stranger Things (Netflix 2022). Recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely. Compare NetChoice, LLC v. Moody, 546 F. Supp. 3d 1082, 1084 (N.D. Fla. 2021), with § 760.10(8)(a)–(b), Fla. Stat.
Now, like the heroine in Stranger Things, this Court is once again asked to pull Florida back from the upside down. Before this Court is a motion for a preliminary injunction, asking this Court to enjoin a host of Government officials from enforcing portions of the Individual Freedom Act—a law that prohibits employers from endorsing any of eight concepts during any mandatory employment activity. Because the challenged provision of the Act is a naked viewpoint-based regulation on speech that does not pass strict scrutiny, Plaintiffs’ motion for a preliminary injunction, ECF No. 18, is GRANTED in part.
All of Florida’s very weak excuses as to how the law was constitutional fail the laugh test. Florida said the law is okay because it targets conduct, not speech. Not so, notes the court:
To start—though trainings are admittedly at the center of this case—the IFA does far more than ban mandatory trainings. It bars “any . . . required activity” at which the eight forbidden “concepts” are discussed and endorsed. § 760.10(8)(a), Fla. Stat. (emphasis added). Conceivably, that includes trainings, phone calls, assignments, discussions—anything that is required and endorses the concepts.
More to the point, the IFA does not ban all mandatory employee trainings. Nor does it ban mandatory trainings addressing certain concepts. No, the IFA only prohibits trainings that endorse the covered concepts. Indeed, the IFA grants employers free rein to hold mandatory trainings addressing any of the eight concepts so long as those trainings condemn or take no position on those concepts
Take that idea further. Because the IFA covers any required activity, an employer could require every employee to read Woke, Inc., Inside Corporate America’s Social Justice Scam but could not require employees to read The Color of Law. Worse still, a nonprofit corporation devoted to promoting the idea that white privilege exists could not hold a required meeting at which it endorses the concept of white privilege. But a nonprofit holding the opposite view could freely hold meetings criticizing the concept of white privilege.
The bottom line is that the only way to determine whether the IFA bars a mandatory activity is to look to the viewpoint expressed at that activity—to look at speech. Plainly, the IFA regulates speech.
There are a bunch of other similarly silly arguments made by Florida, but I’ll highlight just one. Florida claimed that striking down the law would “directly threaten the validity of Title VII’s protections against hostile working environments.” It’s no secret that the people who put together the law tried to model it on civil rights law to make this argument. But that’s an argument that only works on very, very silly people. And the judge is not silly:
Title VII does not regulate speech. Rather, it targets conduct—discriminating “with respect to . . . compensation, terms, conditions, or privileges of employment”—and only incidentally burdens speech. 42 U.S.C. § 2000e-2(a)(1); see Wisconsin v. Mitchell, 508 U.S. 476, 487 (1993) (calling Title VII “a permissible content-neutral regulation of conduct”); see also R.A.V., 505 U.S. at 389; FAIR, 547 U.S. at 62; Sorrell, 564 U.S. at 567. That prohibition on conduct includes a bar on “requiring people to work in a discriminatorily hostile or abusive environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). In turn, to be sure, it can be mostly speech that creates this environment, but only when such speech is both objectively and subjectively offensive and when it is sufficiently severe or pervasive. This “severity or pervasiveness” requirement—“that is, a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work”—provides “shelter for core protected speech.” DeJohn v. Temple Univ., 537 F.3d 301, 317–18 (3d Cir. 2008).
The IFA is the inverse. It targets speech—endorsing any of eight concepts— and only incidentally burdens conduct. Even the slightest endorsement of any of the eight concepts at any required employment activity violates the statute; the IFA requires no evidence that the statement be even subjectively offensive. Nor does the IFA require that the statement create a severely or pervasively hostile work environment. Thus, the IFA, by design, “provides no shelter for core protected speech.”
Given that the law impacts speech, the court runs it through the strict scrutiny test and… finds that it fails. Easily.
In sum, the IFA sweeps up an enormous amount of protected speech to ban a sliver of offensive conduct that exists somewhere between the trainings Plaintiffs wish to hold and what the FCRA already bars. It is, to borrow a phrase from defense counsel, self-evident. The IFA is not narrowly tailored. And so, the IFA violates the First Amendment.
The judge then — somewhat beautifully — turns the whole free speech stuff around on the state of Florida and notes that if it believes this stuff is so horrible, it can express its opinion on it, but it can’t ban it:
Florida’s Legislators may well find Plaintiffs’ speech “repugnant.” But under our constitutional scheme, the “remedy” for repugnant speech “is more speech, not enforced silence.” Whitney v. California, 274 U.S. 357, 377 (1927). Indeed, “it is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969). If Florida truly believes we live in a post-racial society, then let it make its case. But it cannot win the argument by muzzling its opponents. Because, without justification, the IFA attacks ideas, not conduct, Plaintiffs are substantially likely to succeed on the merits of this lawsuit
There’s a lot more in the ruling, but once we’ve gotten to the point that the law is so blatantly unconstitutional the rest isn’t important. You may see that the injunction request was only granted “in part,” but the only part that wasn’t granted (as discussed above) is the part enjoining DeSantis himself, since he has no real enforcement authority directly. The injunction basically blocks everyone who could actually enforce the law.
It’s notable that this lawsuit, from an employer in the state, focused on the parts of the law that blocked certain kinds of diversity training in the workplace. The same day that this ruling came out, a bunch of students, represented by the ACLU, have also sued the state over the classroom parts of the bill…
Of course, at some point, I’d love to hear the supposedly “fiscally conservative Republicans” who “support the Constitution” defend the fact that their governor is throwing away taxpayer dollars pushing blatantly unconstitutional bills that make a mockery of the 1st Amendment solely to “own the libs” and further his own political ambitions. Feel free to display your cognitive dissonance in the comments.
Filed Under: 1st amendment, diversity, florida, ron desantis, stop woke act
Companies: honeyfund
Comments on “Wannabe Censor Ron DeSantis Is Now 0 For 2 With His Censorship Bills: Court Throws Out His ‘Stop WOKE Act’ As Unconstitutional”
I can already tell you what the answer will be.
“lol cry more libcuck”
You may see that the injunction request was only granted “in part,” but the only part that wasn’t granted (as discussed above) is the part enjoining DeSantis himself, since he has no real enforcement authority directly.
Damn! Now watch the wanker pass another shitty law just like the Individual ‘Freedom’ Act in the future because he hasn’t been enjoined from doing so.
Re:
Court denied injunction because plaintiffs lacked standing against DeSantis (but did have standing against the other defendants). Even if it had enjoined him, that wouldn’t stop him from, like, signing more laws, only from enforcing the law at issue in the case.
Re: Re:
So you’re saying the court couldn’t have enjoined Don DeSantis* from signing shitty bills?
*Not a misspelling of Ron, but a correct spelling of Don as in a head of a Mafia ‘family’.
Re: Re: Re:
Given that would allow the courts to determine what laws were and were not allowed to be presented before they were created no, not really.
The courts can smack them down after the fact but there’s not much they can do to prevent it from reaching that point, something which is probably a good thing as while this court in this case is blocking a garbage bill it’s all too easy to imagine a judge going the other way and preemptively shutting down good bills due to an opposing political leaning or some other form of bias.
Re: Re: Re:2
Fair enough. I still don’t like it, but I get it.
Re: Re: Re:2
I still don’t get it. Why can’t DeSantis be enjoined from passing laws prior to public oversight?
Re: Re: Re:3
Because that would violate 1) the separation of powers (the judiciary would be unconstitutionally encroaching on the executive branch) and 2) the requirement for Article III standing that requires there to be an actual case or controversy for a federal court to be able to hear and rule on a case.
Re: Re: Re:4
“Public” meaning “the people”, not another branch of government.
Re: Re: Re:5
The entire theory behind our system of government is that the people elect representatives and those representatives can act as a check on the other branches. There is no mechanism for requiring a referendum every time the government does something because that would defeat the purpose of representative democracy.
There is no legal process under the federal or Florida constitutions to implement the kind of oversight you’re describing, for the reasons bhull242 explained. It would wildly exceed the power of the judiciary and would lead to immense political consequences.
Re: Re: Re:3
Also, I’m pretty sure that the asked-for injunction didn’t even include such a provision. It’d be odd for the judge to grant such an unprecedented preliminary injunction that wasn’t even ask for.
Re: Re: Re:3
Unless the Florida constitution is far stranger than I imagine, a bill has to pass through the legislature (public oversight, in theory) before the governor can sign it into law.
And since both the lege and the guv were elected by the people of Florida, who exactly are you expecting to complain?
From page 30:
“If that were true, the Due Process Clause would tolerate laws containing the most incomprehensible stream-of-consciousness word salads so long as they used actual words. See generally James Joyce, Finnegans Wake (1939).”
This judge lol
Re:
Yeah, this is one of those “read the entire order” orders. It is a delight.
Though I kinda wish I’d never heard of Henry v Corpcar. The fuck is wrong with people?
See…!
The court system works.
Write law
Debate law
Pass law
Litigate law
American checks and balances in action.
Re:
Well, sometimes.
Re:
The court system works.
Unless you’re black.
Re: You’re on a roll buddy.
Ohh look another list of shit no one asked for.
‘It doesn’t go after speech, it goes after actions such as talking on very specific subjects.’
I’d say it’s nice to see the judge saw through that blatant lie but given how glaringly obvious it was I feel like that would be the equivalent of congratulating the judge for walking through the doors of the building rather than trying to go through the wall.
Still, a win’s a win I suppose.
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*Castle reaction gif *
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So hearing MORE voices from MORE people is somehow anti-First Amendment?
Got it.
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Yes, when the government starts dictating or creating laws what’s allowed or not. It’s literally what the 1A says they can’t do.
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Thank you for clearly labeling your strawman.
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Non Sequitur
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“So hearing MORE voices from MORE people is somehow anti-First Amendment?”
I breathlessly await you explanation as to how this was going to happen with this legislation.
It will be nonsense, but I could use some comedy on this weekend.
Just think that if DeSantis and Nunes teamed up they would still only have a quarter of a brain (the part that is made up entirely of dumb) between them.
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Another hit piece from the groomers at Techdirt. I’m not surprised.
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We know you’re not, DBA Phillip K. Dickcheese, but honest engagement has never been your schtick, has it?
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Thank you for demonstrating why “groomers” has essentially lost all meaning ever since it started being misused by Republicans and “anti-woke” people.
Re: Re:
As with everything else from Republicans, it’s projection.
Re:
Yep, Mike’s analysis hits bullsey again leaving only your whining since you have no arguments.
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Russia
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Mike, you're completely wrong!
DeSantis is not “a garden variety authoritarian censor in a cheap suit.” His suits are fairly nice.
Everything else you wrote seems correct.
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