from the performative-evil,-from-a-performative-governor dept
Florida governor Ron DeSantis appears to believe he’s the successor to Donald Trump’s short-lived throne. While Trump was president, DeSantis did everything he could to appeal the same voter base. Trump rather listlessly announced he’ll run again in 2024, but it’s a fair bet DeSantis will try to become Trump 2.0 if it appears the Republican base isn’t ready to ride Trump’s presidential Vomit Comet for another four years.
DeSantis has pushed through laws that violate the First Amendment in hopes of bypassing Section 230 immunity, targeting social media companies over perceived “anti-conservative” bias. He’s also decided the First Amendment shouldn’t apply to certain people and companies if they choose to espouse views that don’t align with his. That’s the gist of the Stop W.O.K.E. Act (since rechristened the “Individual Freedom Act” in an attempt to divorce itself from the rights-crushing it’s intended to inflict), which forbids speech if the speech is anything other than an echoing of the DeSantis party line.
This law has already been blocked twice by a federal court. In that decision, the court found in favor of the plaintiffs and said it was highly likely the new law was unconstitutional. Here’s what the Northern District of Florida said then, via Judge Mark Walker:
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.
This lawsuit, filed by tech company Honeyfund, challenged the portions of the law that pretty much forbade it from engaging in practices aimed at increasing diversity in its workforce. This trampled all over the rights of private companies to enact policies and require training that aligned with their beliefs.
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 law has been blocked again. (That’s thrice, for those of you counting at home in the King’s English!) Judge Mark Walker has granted an injunction to public university students and officials who sued over Stop W.O.K.E./IFA’s restrictions on their speech when discussing certain topics with students. And the decision [PDF] (via FIRE) opens with another reference to a well-known piece of fiction.
“It was a bright cold day in April, and the clocks were striking thirteen,” and the powers in charge of Florida’s public university system have declared the State has unfettered authority to muzzle its professors in the name of “freedom.” To confront certain viewpoints that offend the powers that be, the State of Florida passed the so-called “Stop W.O.K.E.” Act in 2022—redubbed (in line with the State’s doublespeak) the “Individual Freedom Act.” The law officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints. Defendants argue that, under this Act, professors enjoy “academic freedom” so long as they express only those viewpoints of which the State approves. This is positively dystopian.
The clock “strikes thirteen” most famously in George Orwell’s “1984.” The reference is in the footnote:
GEORGE ORWELL, 1984 at 1 (1961). In this case, Defendants’ “argument is like the thirteenth chime of a clock: you not only know it’s wrong, but it causes you to wonder about everything you heard before.”
This is only the opening paragraph. And if the court is citing “1984” to reference the government, its laws, and its arguments, it is not going to go well for a government residing in the United States.
The government is so far into the wrong here the court spends 139 pages repeatedly excoriating it for attempting to silence speech it doesn’t like and elevating speech it does. That’s not how this works, and Judge Walker makes sure DeSantis and his legislative co-conspirators know it.
At the center of this injunction is the amendments the “Individual Freedom Act” put into force to, well, eliminate individual freedoms. The law amended the Florida Educations Equity Act (FEEA) to prohibit “training or instruction that espouses, promotes, advances, inculcates, or compels” students or employees to “believe,” among other things, that inherent racism, racial privilege, and other forms of bigotry exist. It also forbids instructors from referencing privilege or racism, or suggesting things like reparations paid to descendants of slaves might be good idea.
In essence, the law hoped to prevent (under the threat of punishment) white people from feeling “guilty” for being a part of (or a beneficiary of) an inherently racist system. The state law says only certain speech is allowed when it comes to these subjects. Anything else breaks the law. The court says this isn’t how America works.
To begin with, the law is internally contradictory.
At oral argument, Defendants conceded that concept six—as mentioned above, that “[a] person, by virtue of his or her race, color, national origin, or sex should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion”—is another way to describe affirmative action. When asked directly whether concept six is “affirmative action by any other name,” defense counsel answered, unequivocally, “Your Honor, yes.” Thus, Defendants assert the idea of affirmative action is so “repugnant” that instructors can no longer express approval of affirmative action as an idea worthy of merit during class instruction.
Which will lead to this:
Stated otherwise, you can discuss affirmative action as a historical fact, and you can certainly condemn it as a failed policy, but because the idea of affirmative action is so odious, so repugnant, so vile, and so dangerous that it offends the basic principles of common decency, you cannot have a guest speaker
submit their views in favor of affirmative action, even to a class of law students.
As the court points out, this means even Supreme Court Justice Sonia Sotomayor would not be allowed to discuss her own personal experience on campus because she has views that conflict with the state government’s preferred views on affirmative action.
The law unequivocally decides which speech is protected based on the viewpoints expressed. Content-based restrictions have always been considered unconstitutional. The state wants judicial blessing for viewpoint-based censorship. The district court won’t allow it.
In short, the State of Florida cannot do an end-run around the First Amendment by declaring which viewpoints are so repugnant to lawmakers that their mere utterance, on a single occasion, is per se severe or pervasive and prohibiting their expression under an anti-discrimination law. Here, “[w]here pure expression is involved,” the FEEA’s prohibition on “training or instruction that espouses, promotes, advances, inculcates, or compels” students or employees to believe certain concepts “steers into the territory of the First Amendment.” For these reasons, unlike in Bishop, this second factor adds little weight to Defendants’ side of the scale. The State of Florida’s position as a public employer and its asserted interest in combatting racism or sexism does not justify enforcing a viewpoint-based restriction targeting protected speech.
The same people who tend to declare universities to be places where students go to get “brainwashed” are opposed to the robust discussion of opposing views. They only want one side presented: their side. Anything else, under this law, is an illegal act. Brainwashing is fine, says the governor and his legislative cohorts, so long as it’s the sort of brainwashing we like. The court says this is some bullshit.
According to the State of Florida, so long as professors avoid promotion of one side of a particular idea—or do the State of Florida’s bidding and condemn those ideas that the State has deemed unworthy— professors need fear no consequences from the State. But to step out of line during class and utter a single expression of approval of one of the State of Florida’s disfavored ideas is to risk discipline or even termination. In other words, the State of Florida says that to avoid indoctrination, the State of Florida can impose its own orthodoxy and can indoctrinate university students to its preferred viewpoint. This extravagant doublespeak flies in the face of “the invaluable role academic freedom plays in our public schools, particularly at the post-secondary level . . . .”
The court is also irritated by the state playing word games in hopes of salvaging the clearly-unconstitutional law [emphasis in the original]:
Defendants’ decision to avoid referencing any respected lexicon is unsurprising given that Defendants’ preferred construction of “objectivity” ignores any plain meaning of the term and fails to square with any commonsense understanding. Indeed, in Honeyfund, counsel for Defendants—who, as mentioned above, are the same lawyers now representing Defendants in the cases at issue here—relied upon the Merriam Webster Dictionary to define “objective,” noting that “ ‘to discuss a concept in an objective manner’ is, obviously, to discuss it by ‘expressing or dealing with facts or conditions as perceived without distortion by personal feelings, prejudice or interpretation.’ ” Honeyfund, 2022 WL 3486962, at *14. But now, defense counsel ignores Merriam-Webster and doubles down on the idea that “objective” equals discussing without approval and/or criticizing or condemning the specified ideas.
And the state doubled down on its shifting definition of “objectivity” in this case.
Defendants further displayed their nonsensical reading of “objective” during the hearing on Plaintiffs’ motions. When asked whether a professor who wished to instruct on one or some of the eight concepts in an “objective” manner would run afoul of the challenged provisions by inviting knowledgeable guest speakers to discuss both the pros and the cons of one of the concepts, defense counsel argued that the “statute is very clear,” and you would have to analyze the two guest speakers “apart from each other, not necessarily in conjunction with each other.” In so doing, defense counsel suggested that a guest speaker who promoted one of the eight concepts as part of a classroom debate where all sides of the issue were represented would still run afoul of the law. Thus, according to defense counsel, “objective” instruction allows for only one side of the debate in Florida’s public universities—or for no debate at all.
The law is blocked. Again. The injunction goes into place. And because it’s so immediately obvious the plaintiffs are in the right, the injunction is not being stayed pending the inevitable appeal by the state. It’s not often that passed laws are this much in the wrong, but that seems to be the cottage industry Governor DeSantis is trying to cultivate.
In its conclusion, the court references “1984” one more time:
In this case, the State of Florida lays the cornerstone of its own Ministry of Truth under the guise of the Individual Freedom Act, declaring which viewpoints shall be orthodox and which shall be verboten in its university classrooms.
Florida aims to silence people its ruling party doesn’t agree with. The court won’t allow it.
One thing is crystal clear—both robust intellectual inquiry and democracy require light to thrive. Our professors are critical to a healthy democracy, and the State of Florida’s decision to choose which viewpoints are worthy of illumination and which must remain in the shadows has implications for us all. If our “priests of democracy” are not allowed to shed light on challenging ideas, then democracy will die in darkness. But the First Amendment does not permit the State of Florida to muzzle its university professors, impose its own orthodoxy of viewpoints, and cast us all into the dark.
Governor DeSantis is a big fan of speech he agrees with. Everything else he feels he should be able to legislate into nonexistence. He’s wrong. And he’s just a tinpot governor with dictatorial aspirations. Unfortunately, he has a lot of support in the state. Apparently many residents of Florida would prefer the state was more like Fidel Castro’s Cuba and less like the United States of America. Fortunately, the courts are the opposite of beholden. They are the bulwark against government abuse. DeSantis is learning this with every consecutive decision that blocks his performative lawmaking.
Filed Under: 1st amendment, florida, free speech, ron desantis, stop woke act
Companies: fire, honeyfund