Ron DeSantis Wants To Edit the First Amendment

Florida’s governor claims unconstitutional powers that could be used to promote the "far-left" policies he decries.

Florida Gov. Ron DeSantis, a leading presidential contender, is skilled at appealing to Republicans who resent the censorious self-righteousness of woke progressives. But instead of defending free inquiry and open debate, DeSantis seems bent on fighting intolerance with intolerance.

When he signed the Individual Freedom Act (IFA) last April, DeSantis bragged that it would "prevent discriminatory instruction in the workplace," striking a blow against "the far-left woke agenda." But as a federal judge explained last week, the law's restrictions on employee training blatantly violate the First Amendment.

The IFA expanded Florida's definition of "unlawful employment practices" to include "any required activity" that promotes one or more of eight forbidden concepts. Some of those ideas are plainly illiberal (e.g., linking moral status to race) or patently silly (e.g., viewing virtues such as excellence, hard work, and fairness as white supremacist constructs), while others are ambiguous or debatable (e.g., the notion that "members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin").

Whatever you think of those ideas, the government has no business decreeing whether and how they can be discussed in private workplaces. Yet that is what the IFA does: It allows discussion "in an objective manner without endorsement of the concepts" while forbidding speech that "espouses, promotes, advances, [or] inculcates" them.

As U.S. District Judge Mark Walker noted when he issued a preliminary injunction against those restrictions, they amount to "a naked viewpoint-based regulation on speech," which is presumptively unconstitutional. "Under our constitutional scheme," Walker observed, "the 'remedy' for repugnant speech 'is more speech, not enforced silence.'"

DeSantis argued that the IFA aims to prevent a "hostile work environment" created by ideas that might discomfit employees. Walker thought that was a stretch because that term encompasses speech only when it is "both objectively and subjectively offensive and when it is sufficiently severe or pervasive"—requirements that provide "shelter for core protected speech."

More to the point, conservatives have long criticized discrimination claims based on an allegedly hostile work environment precisely because they can transform otherwise protected speech into illegal "harassment." Yet DeSantis is not only defending that concept; he is extending it to cover even a single "required activity" that "espouses" ideas he does not like.

The governor's support for Florida's social media law evinces a similar lack of principle. That 2021 law prohibits platforms like Facebook, Twitter, and YouTube from removing or limiting access to content they deem objectionable, including material produced by "journalistic enterprises" and posts by or about political candidates.

As DeSantis saw it, the law would "ensure that 'We the People'—real Floridians across the Sunshine State—are guaranteed protection against the Silicon Valley elites." He said it would combat the "Big Tech censors" who "discriminate in favor of the dominant Silicon Valley ideology."

DeSantis likened Facebook et al.'s moderation decisions to the "censorship and other tyrannical behavior" of Cuban and Venezuelan despots. But as the U.S. Court of Appeals for the 11th Circuit pointed out when it blocked enforcement of Florida's law last May, such comparisons elide a constitutionally crucial distinction.

Unlike "Big Tech censors," an unconstrained government has the power to ban and punish controversial speech by force of law, as Florida sought to do with the IFA. The First Amendment, which aims to guard against that danger, does not impose any limits on the editorial judgment of private organizations.

On the contrary, the Supreme Court has repeatedly held that the First Amendment guarantees the right to exercise such discretion. But in Florida, Walker wryly noted, "the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely."

That backward view is not just diametrically wrong but dangerously shortsighted. Depending on the vicissitudes of elections, a government with the powers DeSantis has claimed easily could use them to advance "the far-left woke agenda" that keeps him awake at night.

© Copyright 2022 by Creators Syndicate Inc.