The First Amendment “Upside Down” in Florida’s Stop WOKE Act

/ August 19, 2022

BY HANK REICHMAN

Seven professors and a college student in Florida’s public higher education institutions filed suit yesterday to block a new state law that Governor Ron DeSantis calls the “Stop WOKE Act” and which curtails instruction about race and gender as well as much race-based expression in private business.  The Florida and national branches of the American Civil Liberties Union are backing the lawsuit, which claims the act, also known as the Individual Freedom Act (IFA), violates free speech rights and discriminates against Black students and instructors.

The law, which took effect July 1, prohibits teaching or business practices that allegedly contend members of one ethnic group are inherently racist and should feel guilt for past actions committed by others.  It also bars the notion that a person’s status as privileged or oppressed is necessarily determined by their race or gender, or that discrimination is acceptable to achieve diversity.  Public institutions that infringe on the law could have state funding pulled. The law carves out an exception so that educators can teach these topics if they present them “in an objective manner without endorsement.”

“In place of free and open academic inquiry and debate, instructors fear discussing topics of oppression, privilege, and race and gender inequalities with which the Legislature disagrees,” the lawsuit says. “As a result, students are either denied access to knowledge altogether or instructors are forced to present incomplete or inaccurate information that is steered toward the Legislature’s own views.”

The suit marks the third challenge to the law to be filed.  Earlier, a group of K-12 teachers and a student filed a claim that the law violates the Constitution’s protections of free expression, academic freedom and access to information in public schools.  The other lawsuit was brought by private entities, Clearwater-based Honeyfund.com and others, claiming their free speech rights have been curtailed because the law infringes on company training programs stressing diversity, inclusion, elimination of bias and prevention of workplace harassment.  Under the law, companies with 15 or more employees could face civil lawsuits over such practices.

In that third suit, U.S. District Court Judge Mark Walker in Tallahassee issued an injunction yesterday barring enforcement of the act’s restrictions on private business.  In a 44-page opinion he ruled that the law violates the First Amendment and is impermissibly vague.  Walker also refused to issue a stay that would keep the law in effect during any appeal by the state.

Judge Walker’s opinion is worth reading, as it  offers one of the best and most thorough legal arguments I’ve yet encountered against the pernicious notion that somehow efforts to combat discrimination and bigotry violate “free speech.”  His opening paragraphs go straight to the point:

In the popular television series Stranger Things, the “upside down” describes a parallel dimension containing a distorted version of our world.  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.

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 is GRANTED in part. [As is my practice in quoting legal documents on this blog I have deleted case citations to improve readability.-HR]

Judge Walker’s ruling addresses three claims offered by the state in defense of the act.  First, that it “restricts only conduct, not speech.”  Second, even if the act “restricts speech, it does so only incidentally in regulating conduct.”  And, third, assuming that the act directly regulates speech, it still passes constitutional scrutiny.  I will skip over Walker’s demolition of the first two arguments to focus on the third.

Here Judge Walker — who was nominated to the federal bench in 2012 by both of Florida’s US senators, Republican Marco Rubio and Democrat Bill Nelson, and was confirmed, 94-0, at a time when many of President Barack Obama’s appointments were being blocked by Republicans — tackles the state’s claim that the law is justified because, like Title VII of the Civil Rights Act, it bars not speech but workplace discrimination.  Hence, they claim, “[a]ny holding striking down the [act’s] employment provisions would . . . directly threaten the validity of Title VII’s protections against hostile working environments.” 

“That is simply not so,” Walker counters.  “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.  That prohibition on conduct includes a bar on ‘requiring people to work in a discriminatorily hostile or abusive environment.’  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.'”

“The IFA is the inverse,” Walker concludes.

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.”

In a pointed line, Walker puts it straight:  “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.”

The state argues that the law does not bar discussion of the restricted concepts but only mandates that they be treated “objectively.”  Walker eviscerates this claim:

To start, few terms are as loaded and contested as “objective.”  And many would suggest that it is impossible to discuss a concept—or anything for that matter—“as perceived without distortion by personal feelings, prejudice, or interpretation.”  [Here Judge Walker inserts a footnote that quotes Immanuel Kant, Friedrich Nietzsche, and Maurice Merleau-Ponty!]  This is especially true when discussing concepts rooted in historical phenomena, like systemic racism, critical race theory, white privilege, and male privilege.  As Justice Stevens observed, “[i]t is hardly a novel insight that history is not an objective science . . . . The historian must choose which pieces to credit and which to discount, and then must try to assemble them into a coherent whole.”  And such objective discussion, if attainable, is even more difficult with respect to controversial matters like the eight prohibited concepts here, where many, including Defendants, question their legitimacy.

Not to worry, says the State.  So long as you discuss the concepts “as concepts that factually exist in the world” without “giving approval” to them, you’ll be fine.  Is it permissible then to acknowledge, as a “factual” matter, that the theories and phenomena contained in some of these concepts have been widely accepted and substantiated for decades?  Setting that aside, is there a difference between (1) acknowledging that concepts, like systemic racism or white privilege, exist as concepts, and (2) acknowledging that systemic racism and white privilege exist?  Defendants certainly reject the latter, but apparently permit the former.  Yet that presupposes that such a distinction is possible, practically speaking.  Perhaps Defendants anticipate a sterile “Critical Race Theory 101” training from which employees understand that the theory exists—i.e., it is an actual, posited system of thought that some believe in—but do not believe that the theory is valid or correct.  Time in the workplace is valuable, however, and if an employer takes time and resources to discuss these concepts, employees are prone to view them as legitimate.  Thus, as a practical matter, an employer’s discussion of these concepts—no matter how “objective” it may be—will invariably lend credence to them.

Moreover, the context here cannot be overlooked.  The State deems these concepts specters haunting Florida, and to simply acknowledge they exist likely constitutes endorsement.  As detailed above, the IFA is designed to exorcise these viewpoints out of the marketplace of ideas—Governor DeSantis went so far as to call it the STOP WOKE Act at a press conference with children waving anti-critical race theory signs.  It thus comes as no surprise that permissible discussion of these concepts turns on “objectivity”—an inherently vague term that fails to “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.”  Additionally, lacking explicit standards to circumscribe enforcement of “objectivity,” Defendants can weaponize this term to further discredit the prohibited concepts.  The IFA thus “impermissibly delegates basic policy matters to [Defendants] for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.”

The entire 44-page ruling is well worth reading, but let me conclude by quoting its remarkable concluding section:

In the end, Defendants suggest that there is nothing to see here.  They say the IFA does nothing more than ban race discrimination in employment.  But to compare the diversity trainings Plaintiffs wish to hold to true hostile work environments rings hollow.  Worse still, “it trivializes the freedom protected” by Title VII and the F[lorida] C[ivil] R[ights] A[ct] “to suggest that” the two are the same.

Just imagine two scenarios.  In the first scenario, a Black employee complains about a mandatory safety training scheduled on Juneteenth.  Then, at a mandatory training the day before Juneteenth, “to the surprise of the employees in attendance, a white woman in a black gorilla suit enter[s] the meeting.”  As one of the managers blocks the only exit, the woman does “Tarzan yells and repeatedly refer[s] in a suggestive manner to ‘big black lips,’ ‘big black butt,’ and bananas.”  As the woman dances suggestively on one of the Black employees who had complained, another manager leans in and says: “Here’s your Juneteenth.”  In the second scenario, a company directs a White employee to attend a mandatory training in which employees watch “a video about violence committed against Black people in the United States over the centuries.”  After the video, the presenter defines “Black rage”—“resistance towards oppressive people, practices, structures, and systems”—and “White Humility”—“a reflective practice that helps white people develop [the] capacity to interrupt white supremacy”—and asks Black and White participants to discuss them.

These two scenarios, under Defendants’ theory, are indistinguishable.  Indeed, Defendants say, to hold that the state may not ban the latter scenario is to hold that it may not ban the former.  “If the law supposes that, the law is an ass, an idiot.” (Charles Dickens, Oliver Twist)  But the law is neither an ass nor an idiot.  It can tell the difference.

Telling your employees that concepts such as “normal” or “professional” are imbued with historically based racial biases is not—and it pains this Court to have to say this—the same as trapping Black employees in a room while a woman in a gorilla suit puts on a retaliatory, racially inflammatory performance the day before a holiday celebrating the end of slavery.  Rather, it is speech protected by the First Amendment.

By the way, if, like me initially, you thought that Walker’s gorilla suit example was likely offered as a perhaps extreme hypothetical, well, think again.  For this actually happened, although fortunately in 2015 the US Court of Appeals for the Fifth Circuit in the case of Henry v. Corpcar Servs. Houston, Ltd. upheld a jury’s decision to award punitive damages to defendants in this clear case of hostile work environment discrimination under Title VII.

Returning now, to the suit filed yesterday by the professors, here’s the 92-page complaint‘s introduction:

The Stop W.O.K.E. Act is racially motivated censorship that the Florida legislature enacted, in significant part, to stifle widespread demands to discuss, study, and address systemic inequalities, following the nationwide protests that provoked discussions about race and racism in the aftermath of the murder of George Floyd.

As the United States Supreme Court has recognized, “No one should underestimate the vital role in a democracy that is played by those who guide and train our youth.  To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.”  This is especially “true in the social sciences”—the area of scholarship most directly impacted by the Act—“where few, if any, principles are accepted as absolutes.”  Thus, it is imperative that students and instructors alike “always remain free to inquire, to study, and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.”

Rather than allow these important issues to be debated and explored in public discourse, the Florida legislature—spurred on by Governor Ronald DeSantis—has endeavored to impose its own viewpoints in public higher education.  By enacting the Stop W.O.K.E. Act, the legislature sought to cut these
discussions off by inaccurately defining certain viewpoints that it disfavors as discriminatory under the Florida Education Equity Act.  The Stop W.O.K.E Act allows for those viewpoints to be denounced—as they have been by leading state officials—while prohibiting those very same viewpoints from being supported.  Not only does the law prohibit instructors from teaching the legislature’s disfavored viewpoints in the manner dictated by their disciplines, but its vague terms generate uncertainty about when and how the law will apply, thus creating an even greater chilling effect on academic expression.

The Stop W.O.K.E. Act’s title makes no attempt to hide its unconstitutional purpose.  “Woke” speech is defined as “alert to racial or social discrimination or injustice,” and has been characterized by the legislature as speech concerned with civil rights, “privilege” and “oppression,” and even more broadly, “systemic racism.”  Governor DeSantis claimed that the Act was necessary to create a “woke-free state of Florida.”  The Act’s proponents also singled out certain topics to be excluded from the classroom, including Critical Race Theory, a recognized academic theory and body of legal scholarship originated by legal scholars in the 1970s to identify and challenge the perpetuation of racial inequalities in social institutions and the law; the 1619 Project, a critically-acclaimed, award-winning journalistic work about the legacy of slavery in America; the pervasiveness of white privilege; and the goals of anti-racism.

To further signal their disapproval of “woke” speech, the Stop W.O.K.E. Act imposes harsh penalties, up to and including withholding of funding for state colleges and universities, allowing for enforcement by both state officials and private individuals against instructors who teach the viewpoints disfavored by the legislature.

The Stop W.O.K.E. Act casts a pall over higher education in Florida.  In place of free and open academic inquiry and debate, instructors fear teaching topics of oppression, privilege, and race and gender inequalities with which the legislature disagrees and feel compelled to curtail their course offerings and classroom discussions to avoid punishment.  The Stop W.O.K.E. Act explicitly threatens race and gender-based speech, impacting a wide array of courses, in the humanities and beyond.  As a result, students are either denied access to knowledge altogether or receive incomplete or inaccurate information from instructors that is steered toward the legislature’s own views.  These restrictions are particularly invidious because they target instructors and students from marginalized communities, especially Black instructors and students.

Not surprisingly, in the wake of the Act’s passage, universities across the State of Florida took down public–facing statements that espoused anti–racist principles and canceled anti–racist trainings, creating a climate of increased racial hostility and harassment on campus by stigmatizing racial justice and its  proponents and generating fear among Plaintiffs and other Black instructors and students who teach or take coursework in which the viewpoints disfavored by the legislature are likely to be discussed. Moreover, the law’s vague terms and private enforcement mechanism chill speech and expression, including by narrowing campus discourse and gutting academic freedom; encourage a culture of surveillance to watch, scrutinize, and submit complaints for every act of instruction that references viewpoints disfavored by the legislature; and invite arbitrary and discriminatory enforcement against these same instructors.

The Stop W.O.K.E. Act therefore violates a number of core provisions of the United States Constitution. It unconstitutionally abridges First Amendment freedoms by imposing viewpoint–based restrictions on the speech of instructors and the receipt of information by students in college classrooms.  It violates the Due Process Clause’s prohibition against vagueness because it is difficult, if not impossible, for instructors to determine what is, and is not, prohibited by its terms. And it violates the Equal Protection Clause because it was enacted with the intent to discriminate against Black instructors and students and those who align with them.  For each of these reasons, the Stop W.O.K.E. Act should be declared unconstitutional and enjoined.

I wonder if Gov. DeSantis has bit off somewhat more than he can chew.  Here’s what conservative writer David French tweeted yesterday:

Contributing editor Hank Reichman is professor emeritus of history at California State University, East Bay; former AAUP vice-president and president of the AAUP Foundation; and from 2012-2021 Chair of AAUP’s Committee A on Academic Freedom and Tenure. His book, The Future of Academic Freedom, based in part on posts to this blog, was published in 2019.  His Understanding Academic Freedom has recently been published. 

Related posts