Florida Sues Target Over Trans Merchandise
Is Florida forgetting that the First Amendment applies there too?
Florida is suing Target for selling LGBTQ-friendly merchandise, something the state is misleadingly calling "efforts to sexualize children."
You're probably thinking: Wait, doesn't the First Amendment stop the government from doing things like this? Doesn't Target have a First Amendment right to sell goods broadcasting whatever perfectly legal messages it chooses, and don't individual Americans have a First Amendment right to access those messages?
The answer is a resounding: of course. But Florida authorities don't seem to care, so long as they get to perform concern for children.
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'Sexualizaton of Children'
What the state considers the "sexualization of children" seems to be anything discussing gender identity or acknowledging that transgender people exist.
On X, Florida Attorney General James Uthmeier listed three of the products that he objects to: "rainbow sports bras for boys," swimsuits for transgender children, and books about gender identity.
Like many anti-trans crusaders, Uthmeier doesn't bother elaborating on how products concerned with gender identity—whether someone identifies as male or female or neither or both—are related to sexualization. He expects his audience to take it as a given that anything related to transgender or nonbinary identities is rooted in (deviant) sexuality.
As has been pointed out many times before: In cases like this, it's the anti-trans crowd who are sexualizing children, applying their adult interpretations of gender and sex to things that are not inherently sexual. A girl saying she feels like a boy is not automatically expressing anything related to sexual feelings or preferences, nor is a teenager who likes to wear elements of masculine and feminine clothing necessarily making a sexual statement. Likewise, catering to a market of transgender and nonbinary minors is not an attempt to sexualize them.
And Florida isn't only objecting to products designed for children. On the first page of its massive 163-page class action complaint, the state complains about Target having sold "transgender 'tuck-friendly' women's swimsuits with 'extra crotch coverage.'"
Ari Cohn, who serves as lead counsel for tech policy at the Foundation for Individual Rights and Expression, has called Florida's lawsuit "asinine, performative buffoonery and an attack on the First Amendment." The state, he noted, is objecting to products "based on the messages they convey—all of which are First Amendment–protected, and none of which 'sexualize children.'"
Absurd Legal Theory
You do have to give it to Florida authorities for creativity. Presumably aware that the state can't simply ban messages it finds distasteful, the state is trying to frame this not as a matter of censorship but as a matter of Target's corporate duty to shareholders.
"Target's efforts to sexualize children caused its stock price to plummet, harming Florida's retirement fund and putting the retirements of our teachers and first responders at risk," Uthmeier said in his X post. Uthmeier accused the company of "misleading shareholders" and promoting "a harmful leftist agenda at the expense of shareholder returns."
By this argument, the state could engage in all sorts of censorship so long as it bought shares in whatever companies it wanted to bully into cracking down on speech. It could even demand the suppression of certain messages on social media on in search results by buying shares in companies like Meta and Alphabet.
"It's beyond question" that the products Uthmeier objects to Target having sold are "expressive items" protected by the First Amendment, noted Cohn. "That Florida's retirement fund holds shares of Target is irrelevant and meaningless. Government does not gain the power to regulate speech because it's a shareholder."
If Florida thinks Target stock is a bad investment, it can divest itself of Target shares. It cannot use them as an excuse to say what sorts of perfectly legal messages the company may broadcast.
Even if Florida could somehow sweep First Amendment issues aside, the state might not have much of a case.
The new lawsuit, filed in federal court, "is one of at least three similar cases against Target in Florida," reports the Tallahassee Democrat. It claims that Target CEO Brian Cornell and the company's board of directors violated the Securities Exchange Act of 1934 by failing to "oversee or disclose the obvious risks of Target's 2023 LGBT-Pride Campaign" and thus "deceived Target investors."
In a previous Florida lawsuit against Target, the company disputed some similar claims. The company "repeatedly warned investors of the risk" that consumers might boycott over its initiatives, it said in a January 2024 filing in this case. Florida might be unhappy with "Target's business judgment about merchandising. But disagreeing with Target's business judgment does not give rise to an actionable claim under the securities laws."
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