When Gov. Ron DeSantis signed the Individual Freedom Act (a.k.a. the "Stop WOKE Act") in April, he made it absolutely clear that his intent was to censor private speech.
"In Florida, we will not let the far-left woke agenda take over our schools and workplaces. There is no place for indoctrination or discrimination in Florida," he said.
On Thursday, Chief U.S. District Judge Mark E. Walker of the U.S. District Court of the Northern District of Florida, Tallahassee Division, spent 44 pages of a decision patiently explaining that using government force to ban discussions of issues DeSantis doesn't like is blatantly unconstitutional and ordered the state not to enforce the law.
The Individual Freedom Act (IFA) bans both schools and businesses from teaching or training students or employees a list of eight controversial ideas the law's proponents associate with critical race theory. They include controversial concepts like the belief that people of a certain race are inherently racist or sexist (consciously or unconsciously), that people of a certain race are responsible for the racist behavior of their ancestors, or that certain values (like belief in excellence, hard work, or fairness) are racist in origin or used to oppress other races.
We can debate whether these are good or bad ideas. What's not debatable is whether the state of Florida has the legal power to stop private employers from teaching these ideas. It does not, and by implementing the IFA, Walker notes that this part of the act "is a naked viewpoint-based regulation on speech that does not pass strict scrutiny" and cannot be enforced.
The state was sued by two employers (Honeyfund and Primo) who want to mandate training to employees that might violate this law and consulting firms (Orrin and Whitespace Consulting) who provide such training. They fear potential state investigations and lost business as a result of the IFA. Walker agreed that this gave the businesses standing to sue to attempt to block the law's enforcement.
Walker quickly punctures Florida's defense of the law by pointing out how it is clearly an attempt to censor one side of the debate but not the other:
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 speech orientation of the law is clearly not neutral: It censors only one position on the controversy based on its viewpoint. Walker further rejects the state's attempt to say that the act aims to regulate conduct, not speech. (This argument may be familiar to libertarians, who have seen states use it to try to unduly control who is and is not allowed to give advice.) Walker notes that laws against racist conduct at the workplace can be identified separately from speech. But IFA can only be understood through the lens of what is and is not said. It is entirely a regulation of speech, not conduct.
Walker then subjects the law to strict scrutiny, requiring the state to prove that it has a compelling interest to justify engaging in such censorship. To put it mildly, constitutional law is not on the state's side here.
"The First Amendment does not give the state license to censor speech because it finds it 'repugnant,' no matter how captive the audience," Walker writes. "And even assuming the IFA serves a compelling government interest—like prohibiting discrimination—it is not narrowly tailored. In large part, this is because the [Florida Civil Rights Act of 1992] already prohibited much of what Defendants claim the IFA aims to prohibit. For example, a diversity and inclusion training could be so offensive, and so hostile to White employees, that it could create a hostile work environment. That is already illegal—as both parties acknowledge." Walker concludes that the IFA attacks ideas, not conduct, and so the plaintiffs are likely to win the case.
Walker also agrees with the plaintiffs that the IFA is "impermissibly vague" in how it defines the forbidden ideas, leaving it for the state to resolve and leaving employers unclear about what sort of discussion about race is and is not forbidden.
DeSantis' own deliberate politicization of the issue is brought up as evidence that this is all viewpoint-based government censorship:
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.
And so, Walker agreed to enjoin the state for now from enforcing the business training component. The American Civil Liberties Union is suing Florida to try to block the school discussion ban part of the bill as well.
The judicial smackdown against the state of Florida here looks remarkably similar to what happened in May with the DeSantis-approved bill that attempted to force social media companies to carry political messages by candidates for office. That law has also been temporarily enjoined as unconstitutional. While the reason appears to be in the opposite direction (Florida attempting to mandate that companies carry certain speech rather than ban it), the foundational issue is the same: The governor and lawmakers of Florida do not have as much authority to tell businesses operating in their state what sorts of speech are or are not permitted there as they claim.
What does this mean for the other high-profile DeSantis-supported speech bill—H.B. 1557, the Parental Rights in Education Bill, a.k.a. the "Don't Say Gay Bill"? It's also being challenged in federal court by families and educators as violating the First Amendment for the way it censors classroom discussions on LGBT issues.
Florida, of course, does have the power to determine classroom curriculum for public schools, and defenders of H.B. 1557 insist the law is about preventing inappropriate sexual discussions in kindergarten through third-grade classrooms. But that's not actually what the law says. The law forbids any instruction on "sexual orientation or gender identity" at all in those grades and then further prohibits any instruction throughout public schooling that is not "age-appropriate or developmentally appropriate" for students without defining what any of that means.
The end result has been wide disagreement with what H.B. 1557 actually bans, prompting books to be removed from libraries and teachers to claim they're being told to not wear clothing that could invite children to ask questions about LGBT issues (like shirts with rainbow flags on them and the like). It's not clear that the law actually forbids it, but the lawsuit leans heavily on noting that the vagueness of H.B. 1557 leads to a chilling effect, particularly because it gives parents the power to sue and seek damages if any school district violates the ban.
And so Judge Walker's observation that the IFA is "impermissibly vague" may end up being relevant to the ultimate fate of the Parental Rights in Education Bill. The courts have rightly taken a dim view of laws that restrict rights and invite punishment in ways where it's not clear to the layperson what behavior violates the law.