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
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
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