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Federal Court Rules Against Florida Law Banning "Woke" Workplace Training
The court ruled - correctly - that the law violates the First Amendment.
Last week, a US federal district court ruled that a key element of Florida's recently enacted "Stop Woke Act" is unconstitutional, because it violates the Free Speech Clause of the First Amendment. The relevant part of the act bars employers from requiring workers to attend trainings or engage in any other "activity" that involves promotion of any of a long list of prohibited ideas.
As Judge Mark Walker of the Northern District of Florida notes in his opinion, this is part of a pattern in which Florida has enacted a series of laws that violate the free speech rights of private organizations on the pretext that doing so somehow prevents them from undermining freedom of speech themselves:
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. 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…. is GRANTED in part.
The earlier case Judge Walker refers to is the litigation against Florida's social media law, which bars social media firms from engaging in most content moderation on their sites. That law was recently blocked, on First Amendment grounds, in a decision issued by the US Court of Appeals for the Eleventh Circuit, and authored by Judge Kevin Newsom, a conservative Trump appointee. In May, the US Supreme Court reinstated a lower court injunction against a similar Texas law.
The "Stop Woke Act" has similar problems. It bars mandatory workplace trainings and other required activities that advance a wide range of concepts:
(a) Subjecting any individual, as a condition of employment, membership, certification, licensing, credentialing, or passing an examination, to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe any of the following concepts constitutes discrimination based on race, color, sex, or national origin under this section:
1. Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.
2. An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
3. An individual's moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin.
4. 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.
5. An individual, by virtue of his or her race, color, sex, or national origin, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin.
6. An individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
7. An individual, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part, committed in the past by other members of the same race, color, sex, or national origin.
8. Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin.
(b) Paragraph (a) may not be construed to prohibit discussion of the concepts listed therein as part of a course of training or instruction, provided such training or instruction is given in an objective manner without endorsement of the concepts.
Point 4 on this list is especially broad, as it appears to ban virtually any training involving advocacy of affirmative action on the basis of race, ethnicity or sex. I am no fan of such racial and ethnic preferences. But advocacy of them is pretty obviously legitimate discourse on an important issue.
Ironically, point 4 may even ban employee training sessions that promote conservative views opposed to accommodation of transgender individuals. After all, such positions almost unavoidably involve advocacy of the idea that people "should not attempt to treat others without respect to…sex." Rather, they necessarily require treating transgender people in accordance with their biological sex when it comes to such matters as deciding which bathrooms they are allowed to use.
Judge Walker effectively explains why these provisions of the law necessarily target speech, and thereby violate the First Amendment. They are not merely regulations of conduct:
To start—though trainings are admittedly at the center of this case—the IFA does far more than ban mandatory trainings. It bars "any . . . required activity" at which the eight forbidden "concepts" are discussed and endorsed. § 760.10(8)(a), Fla. Stat. (emphasis added). Conceivably, that includes trainings, phone calls, assignments, discussions—anything that is required and endorses the concepts.
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 bottom line is that the only way to determine whether the IFA bars a mandatory activity is to look to the viewpoint expressed at that activity—to look at speech. Plainly, the IFA regulates speech.
Not only does the law target speech; it singles out speech that advocates particular viewpoints on disputed issues, while giving more favorable treatment to speech that supports the opposite positions. Such targeting is a blatant violation of the First Amendment.
Perhaps the strongest possible defense of this part of the Stop Woke Act is by way of analogy to sexual harassment law. Under the Supreme Court's interpretation of Title VII of the Civil Rights Act of 1964, harassment - including that based solely on speech - is illegal, so long as it creates a "hostile environment" based on sex, that is "severe or pervasive." Florida's reliance on this analogy is another example of conservative efforts to appropriate anti-discrimination law for their own purposes. If free speech can be restricted in order to protect employees against sexual harassment, why not to protect "anti-woke" employees from workplace trainings that advocate positions they dislike?
Personally, I think sexual harassment law has gone too far in restricting speech, and some of it is unconstitutional. Co-blogger Eugene Volokh has written extensively on this point. But, as Judge Walker explains, the Anti-Woke Act goes even further than sexual harassment law does, and thus is unconstitutional even if the former is not:
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. 42 U.S.C. § 2000e-2(a)(1); see Wisconsin v. Mitchell, 508 U.S. 476, 487 (1993) (calling Title VII "a permissible content-neutral regulation of conduct")…. That prohibition on conduct includes a bar on "requiring people to work in a discriminatorily hostile or abusive environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). 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." DeJohn v. Temple Univ., 537 F.3d 301, 317–18 (3d Cir. 2008).
The IFA is the inverse. 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 drawing this distinction, this Court need not identify the line at which an antidiscrimination law crosses from incidentally burdening speech to directly restricting speech; the IFA sits comfortably on the direct-restriction side of that line and Title VII sits comfortably on the incidental-burden side. Thus, whether the IFA passes constitutional scrutiny has no bearing on whether Title VII passes constitutional scrutiny.
Litigation over this issue is likely to continue. The state will almost certainly appeal Judge Walker's ruling. But I would be surprised if the state ultimately prevailed. The targeting of speech here is too blatant for courts to overlook.
Conservatives who cheer on the Florida law should consider what liberal states - or, for that matter, a Democratic-controlled Congress - could do if allowed to engage in similar regulation. The same powers that Florida uses to target "woke" employer speech can just as easily be used against conservative employers. For example, it could be used to ban any required workplace training or "activities" that involve advocacy or promotion of any ideas that might be considered racist, sexist, culturally "appropriative," or otherwise offensive to left-liberal sensibilities. If you think courts should rule that kind of left-wing regulation unconstitutional, the same goes for the Stop Woke Act.
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The state determines public school curriculum and governance. This decision will be reversed and your record as a leftist judicial supremacist continues unabated by law or reason.
Obama appointed scumbag judge. Congress need to impeach him. He is just making shit up. He is a woke. Zero tolerance for woke.
Woke is hostile work environment. It should not be tolerated. Record all woke actions. File regulatory complaints in several labor agencies, state and federal. Then sue in federal court because these labor agencies are all woke servants as well. If the federal court refused to defend our nation from woke attacks, go to the home of the employer and nitpick his zoning violations. Drive him out of the state. Make it unbearable to be him, as he is making unbearable to be a real American. If that does not end it, do Philly rezoning. burn the place down. To deter.
Florida can start enforcing all its laws against this enemy judge. Fines for going 1 mph over the limit. Force to repaint the house if a paint chip is spotted. Seize his personal laptop to see if he downloaded any material without written permission.
Eugene is supporting a scumbag lawyer judge decision that imposes a denial of reality. The prohibited doctrines are just not true. They are fake hate speech. The judge has imposed that on the employees of Florida's woke corporations. These corporations are servants of Soros and of the Chinese Commie Party. This scumbag judge has empowered our internal enemy. Eugene lives in LA, a woke location, and cannot overcome local culture. Eugene is a woke.
Eugene is an excellent research assistant. He can track down anything. He is not much of an issue spotter. One wonders if he passed the Cali Bar. The issue is not the First Amendment, but the Civil Rights Act and a hostile work environment based on race, age, and sex, and birth origin.
Yes, he's also been on a rampage to ensure that Democrats can cheat in voting.
The court in this case is only addressing those portions of the act directed to private employer employee training. The decision doesn't discuss the portions of the act directed at school curriculum at all.
But is the court saying that it violates no civil rights law for a private business to adopt a policy and train its employees that "an individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously," or that if there is such a law it is unconstitutional because at odds with the first amendment?
I am glad that the court believes that having the KKK produce a training on diversity is OK now. I thought it ran afoul of various civil rights violations, but not any longer. Good to know.
That is the bad racism, the good racism is required by leftist totalitarians like Ilya.
What employer would want KKK produced training material on diversity?
KKK:Marxist::Potahto:Potayto
Is this a joke or not? Because the right's 'all bad things are Marxist' has been a thing for ages.
See: Race Mixing is Communism.
Well, not all bad things are Marxist, but Marxism can scarcely claim to be categorically different from other bad things.
You are saying all bad things are 'categorically' the same? That seems a spectacularly useless statement.
The point is that the KKK is not Marxist; that is a very silly thing to say.
In terms of being "bad", sure. You ARE familiar with the concept of things being equal in magnitude, but not in quite the same direction, right? They had a few other things in common, like virulent racism, of course.
Now, I'd argue that it's grossly unfair to the KKK to compare them to Marxism, because, look at the relative body counts. The KKK were pikers in the evil department, Marxists world class and to date unchallenged for the championship.
Yet, if you tried to set up mandatory KKK employee training, never mind this ruling, you'd predictably get shut down so fast your head would spin. The supposed principle here is not going to be applied to ALL mandatory employee evil training. Just mandatory employee evil training the right people find objectionable.
Bad is not a category. Don’t be silly.
Seriously, you're going with "Bad isn't a category"?
Why not?
Because it's either trivial or subjective. Either way it's useless.
Not all adjectives are categories.
That just makes it a subjective category, not "not a category".
To review.
I said it is silly to say 'all bad things are Marxist'
You said, apparently 'well, there is a category 'bad things' and Marxism shares it with all other bad things.'
That's....a really, really dumb statement. It is not only off topic, it's nigh-tautological, and irrelevant to just about any thesis you would care to name, including the badness of Marxism.
While you are technically correct that 'bad things' is a category, no one seeking actual communication with another human would use it as such.
We would all be much better off if employers both large and small concentrated on providing good service and value to their customers (and shareholders in the case of corporations) rather than virtue signaling on cultural issues.
"We would all be much better off if employers both large and small concentrated on providing good service and value to their customers"
Which customers?
The customers who wish to purchase contraception when the pharmacist on duty figures she should not do so?
The customers who wish to arrange a service in connection with a same-sex marriage?
The customers who wish to purchase food on Sunday at an airport where choices are naturally limited?
The customers who need medical care that the nearest hospital refuses to provide in direct conflict with professional standards of care?
"Which customers?"
All customers, whoever they might be.
You and Queen almathea are the king and queen of obfuscation.
Especially when it's actually anti-virtue signaling.
What do you think causes a company to engage in "virtue signaling?"
(That's a pretty stupid accusation, BTW, since it assumes you can read the signaler's mind.)
This is the correct decision, of course. Having said that, the training is defensive against lawsuits. Which...
Lawyers and others beating the drum to go from severe, pervasive, repeated harrassing behavior, to lesser and lesser crimes, culimating in the self-minimized "micro" aggressions, do so more for the yachts in their pockets. And no, a bounty system to fix problems where the bounty hunters lead the charge exaggerating the level of evil, and therefore the cash, of which they take a third, to make someone whole...from a micro aggression.
Happy yachting, plague!
I'm sorry your feelings of cultural dominance are threatened.
Perhaps you could go work on feeling better about the size of... your own yacht fund by trying to bag a fleeing uterus in Texas.
What happened in Texas is wrong, not probably what you were expecting to hear from me, obviously. There is some just desserts though, for you, in them creating that situation using lawsuits and the predation-reward mechanism.
As usual, oh noes, the right wing is learning to use our best tricks...against us!
Take a hint from that. I loathe both sides in politics because they are soulless bastards out for their goals, using laws to line their pockets with other peoples' money.
The lawyer profession is just the Mafia coming around. The Mafia just takes your money. At least, they do not annoy you with their superciliousness.
Can employers have safety training that shows stuff like crime statistics of black on white crime, or transgender suicides, or homosexual child molestations,
Or is the only kind of lawful training the anti-White kind?
You are Correct Sir!!(HT E. Mcmahon) only anti-white (don't forget the Jews) kind.
Who can forget them? They are at the forefront of nearly all our problems.
Hitler? thought you took a dirt nap in 45"??
This ruling is wrong. Subjecting employees to "woke training" against their will is hostile environment harassment for being a straight white man. And just like sexual harassment law, such training is "conduct" and not mere speech because it is required.
Someone apparently doesn't understand at-will employment.
Yes, you. At will employment does not grant a privilege to violate employment law.
The Civil Rights Act turns the concept of "at-will employment" on his head. Stop with the bullshit.
Glad to hear you prefer UK non-discrimination law. I guess horseshoe theory is alive and well.
https://ukhumanrightsblog.com/2022/08/03/discrimination-and-freedom-of-belief-in-the-sex-and-gender-debate/
As I understand, the law prohibits employers from having "woke training" (as defined). Surely, given the State's more or less unrestricted power to regulate employment relationships, there would be no Constitutional obstacle to providing that no employee can suffer adverse employment consequences as a result of failing to participate in "woke training." I wonder why the Florida legislature didn't simply do that; maybe they will.
The ruling notes that, “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.”
In other words, creating a hostile work environment was illegal under Florida law before the “Stop Woke Act” was passed, and is still illegal now that it has been struck down.
When I read the subtitle of the post, I immediately knew who the author was.
This is nonsense. It is not a regulation of "speech", it is a regulation of business practices, well within the traditional ambit of government regulation. Does requiring safety training or sexual-harassment training or the like violate a company's free speech rights? Then how can forbidding it?
I bet if the law required, rather than forbade, wokeness training, this judge would have found no problem with it.
" When I read the subtitle of the post, I immediately knew who the author was. "
If there is anything the faux libertarians who congregate at this white, male, right-wing blog can not abide, it is the occasional bit of libertarian content that interrupts the bigoted, backward red meat tossed to them regularly by the most prolific couple of Conspirators.
Quite. Just how barmy and far right does one have to be to see Ilya bloody Somin (of all people) as a leftist stooge?
Well, we can see the answer in this thread. Actual, over Nazis are disagreeing with him. You have to wonder about the posters here who don't seem to think they're Nazis, but can't spot that they're hanging around with a bunch of people who say things like "Who can forget [the Jews]? They are at the forefront of nearly all our problems."
I don't know about "this judge," but I would so find a problem with it.
There's a clear First Amendment violation in both cases.
The problem here is that this law is neither, "cannot say X to his employees" nor "must say X to his employees".
It's "cannot mandate that the employee listen to X". The company is still free to say what it wants to employees, so long as refusing to listen to this particular speech isn't penalized.
And why shouldn't the company be able to mandate that employees listen to some particular speech?
What if it's a safety presentation, or how the new benefit plan works, or some other such matter?
Or what if the boss tells you, "Go see Joe, and he will explain what we want you to do on this project." Does that not require you to listen to speech? 1A violation? Don't be silly.
The argument is not that the employee has a 1A right to ignore the employer, but that the employer has no 1A right to fire the employee for ignoring him. At best firing is just a contractual right, which hasn't been absolute in this country for >100 years.
Not sure I follow.
Let's say an employer tells an employee to attend some sort of non-controversial training. "We need you to learn how this new software works."
Employee refuses. Now what?
Again the employee has no constitutional right not to attend. The employer can fire him unless state law says otherwise.
In this case state law did say otherwise, so the question became whether that law unconstitutionally burdened speech. The state's lawyers maintained (reasonably I think) that firing employees for not attending certain speeches isn't speech. But the judge disagreed.
By the way, someone tell me this is only a nickname. Because if they literally named this monstrosity the "stop woke act" that may well be the most blatant example of using the title of a law to explain why it's unconstitutional in the history of the United States. At least the Patriot Act, for example, followed the traditional approach of calling the law the opposite of what it is...
Yes it is a "nickname" from those who oppose it in the same vein as Don't Say Gay.
The title of the bill is "Stop the Wrongs to Our Kids and Employees Act", so it seems less of a critic-imposed name than "Don't Say Gay".
Stop W.O.K.E. (Wrongs to Our Kids and Employees) is what DeSantis called it last December when he announced it would be introduced, but the actual title of the bill was the Individual Freedom Act.
Indeed, just like the Inflation Reduction Act that will do squat to reduce inflation.
FYI: Comparing SARS-CoV-2 natural immunity to vaccine-induced immunity: reinfections versus breakthrough infections
Large enough population size to get good statistical strength, and they designed the study to do a head to head comparison of the effects of previous infection, infection plus boosting, and vaccination without previous infection.
Immunity from previous infection was a LOT better than from the vaccination, though previously infected and boosted seemed still better.
"For example, it could be used to ban any required workplace training or "activities" that involve advocacy or promotion of any ideas that might be considered racist, sexist, culturally "appropriative," or otherwise offensive to left-liberal sensibilities. "
Already done, its called the Civil Rights Act of 1964 along with similar state laws.
When Democrats have power, those protections are only for the special people. Everyone else is allowed to be victimized, usually without recourse.
Republicans can't get enough special, unearned privilege, whether it is for (certain) religious claimants, government officials seeking immunity, or vestigial bigots seeking safe spaces as refuge from generally applicable, modern laws.
This is nothing replacement won't solve, thank goodness.
The replacement that isn't happening? "Reverend" Sandusky?
The replacement that occurs every day as elderly conservatives die off, taking their stale, ugly thinking to the grave, and are replaced in our electorate and society by better, younger Americans.
This is why our improving nation becomes less rural, less religious, less bigoted, and less backward every day. Less white, too.
Republican Party, unearned traditional privilege, and emptying, deteriorating backwaters hardest hit.
Pretty sure I'm younger than you (probably longer life expectancy, as I'm not a Chilie-Mo at https://www.cor.pa.gov/Facilities/StatePrisons/Pages/Greene.aspx
and talking about "Replacements" how about the 50-60 million Afro-Amuricans who were "Replaced" umm, with well, nothing since Roe v Wade (So complicated, just getting the exact number of Abortions is difficult, then calculating how many babies the aborted females would have had, how many aborted males would have been killed in criminal/gang activity)
Enough Politics Jerry, what every College Football fan wants to know, did Joe Pa's breath smell like (Redacted)???
Frank
Pretty telling you think the Civil Rights Act assumes a liberal point of view.
Which views would those be?
Classic liberals, such as Barry Goldwater, opposed the Civil Rights Act (because of its impositions on private businesses and private employers).
This anti-woke hysteria really is reaching new heights. It's what you do when you not only have no answers to various problems, but also most of your major donors are reaping huge profits while making those problems worse, so, yay, fascist-style culture war.
I tend to think this law is arguably unconstitutional in its application to private business, (A LOT of laws are, but the courts give them a pass anyway, on account of business largely being treated as a constitutional rights free zone most of the time.) but the thing that impresses me about it is just how effective it is at exposing just how horrible the opposition actually is.
They'll pass laws prohibiting the most horrible things, and, yeah, they might be unconstitutional in some of their applications, but the most effective response from a PR standpoint would obviously be a press release saying, "Whatever. Who does that anyway?"
Instead they go berserk and confess to doing the horrible thing! Because, yeah, it's horrible, but they really are doing it, and don't want to stop!
Next I want to see Florida pass a law prohibiting teaching that people should commit suicide bombings against daycares. Just to see the "How dare you! We're ENTITLED to tell people to do that!" reaction.
Yeah, exactly. 'No, no, we WANT to shoot up schools,' that sort of thing.
Yeah, absolutely: If anybody passed a law prohibiting advocating shooting up schools, sure, it would be unconstitutional, but the best response would be just having a good laugh and ignoring it, because nobody is advocating shooting up schools.
Well, what a relief, the right-wing characters who routinely advocate for violence on here, not to mention yourself, have SOME limits, apparently.
I have, contingently, threatened violence. Anybody who wouldn't respond to government with violence at SOME point is just a slave waiting to have his shackles delivered.
But point to the person who is advocating shooting up schools. You won't find them. The most you'll find is people who won't let you use 'stopping school shootings' as an excuse to violate civil liberties you happen not to like.
You will find people advocating all 8 points in the "Stop Woke Act", and the similar items listed in HB 1557, which critics dubbed the "Don't say gay" bill to mislead people about what the bill actually prohibited.
I guess just accepting school shootings as a fact of life because the gun lobby needs profits and some middle class people need their expensive hobby is bad enough.
You'll find people opposing stuff like this because they listen to what Republicans say and what they do and what they claim they want, and react accordingly. I mean I don't care much about corporate culture and its wokewasing and Greenwashing, other than not to fall for it, but Republicans cannot abide the idea that somebody, somewhere is being taught that sexual harassment is bad, and actually black people have historically experienced racism and may still be experiencing it today, or that it's okay to be gay. That HAS to be stamped out.
Once again a libtard proves without the new math their positions are silly. Sure school shootings are a reality and have been for literally a couple of centuries. Problem with that is not only is black on black violence a reality but a good weekend in big libtard cities produces more deaths than all the school shootings combined. To make matters worse banning gun ownership for blacks really won't change that reality cuz most of the black on black violence is not done with legal guns.
The fact of the matter is gun violence is only a real problem is very specific geographical locations even in big libtard cities. Maybe the real solution is to red line these areas so white peeps know where they are and avoid them and let the criminal blacks continue in their effort to combine genocide and suicide.
'a couple of centuries.'
Welp.
'Maybe the real solution is to red line these areas so white peeps know where they are and avoid them and let the criminal blacks continue in their effort to combine genocide and suicide.'
But how will the whte peeps know how to avoid the genocidal/suicidial white criminal peeps? Or will they just sign them up as cops?
" I have, contingently, threatened violence. "
That is because you are disaffected, desperate, doomed, autistic, bigoted, delusional, and unable to cope with a modern America that you hate.
You left out "Bitter Klingers" Pete Booty-Judge holding up your Namenda in Long Beach???
Brett,
"Contingently?"
Well, maybe, but it depends on what the contingency is, so that's a poor excuse.
You called for lynching judges over a decision you didn't like, and you've come close to that before. Pretty "light and transient causes."
So, once again, you try to crawfish away form your own comments.
He contingently threatened violence because a judge interfered with the freedon of the right to supress black people's votes. That's how you know he's not a slave in chains. He's the other sort.
No, he didn't. But you leftists desire and demand our full subjugation and extermination. At some point, violence will be necessary to oppose you people.
I was there when he did it! Well, digitally.
It's a weird thing to suddenly realise but: you talk about 'leftists' the way people used to - and still do - talk about Jews. You are creepy and disturbing.
These are your fans, Volokh Conspiracy. The "lamp posts" and "violence will be necessary" fringe of bigoted, delusional, superstitious, backwater right-wing America. (Earlier episodes involved Zyklon showers, placement face-down in landfills, rape, being gassed, and being shot in the face as front doors were opened, as I am sure you recall.)
This is why strong, mainstream law schools should refrain from hiring movement conservatives. It is also why most colleagues of the Volokh Conspirators (other than at South Texas College Of Law Houston, perhaps) do not respect them and wish they would move to Regent, Liberty, Ave Maria, or George Mason.
If nobody is advocating shooting up schools, no plaintiff would have standing to challenge the hypothetical statute, and no court could reach the merits.
Somehow, Brett, I think your take re: how evil these liberals are will, as usual, not be shared by many other people.
That's because most conservatives are delusional about who their enemies really are.
Yes, your real enemy is Trump, and possibly yourselves.
These laws are going to take a few iterations until they can offer maximum protections allowable within 1A.
That gives Democrats many chances to vote in favor of political and racial harassment and Republicans the same number of chances to vote for protection against that harassment. Eventually political and racial harassment will be effectively prohibited in every red state.
Which states engage in racially targeted voter suppression, you half-educated rube?
Which states strive to protect gay-bashers and punish gays?
Which states conducted segregated proms recently?
Self awareness-deprived, doomed movement conservatives are among my favorite culture war casualties.
Great comment, bruh. What is your real name? You deserve credit.
Jerry Sandusky, THAT Jerry Sandusky
Again, nobody targets blacks for voter suppression because they're black. They do so because they are 95% Democrat bloc voters. If they voted more reasonably, they wouldn't be the target of suppression.
It’s okay to suppress blacks because you don’t like how they vote.
That’s still racist, chief.
Democrats are the political expression of evil. Everything they do is intended to destroy the West, from their open borders fanaticism, to weakening of traditional nuclear families, to neutering the military, to debasing the currency, to encouraging violent crime and hampering people's ability to defend against that, and many, many more.
Trying to suppress that is noble.
Ends justifies the means is how you get to evil, actually.
I mean, you just rationalized more than keeping blacks from voting, but also killing every Democrat. You are the baddie.
You're not shocking, you are simplistic and boring; there are no arguments at this childlike level of thinking, just rants.
Democrats are attempting to destroy the West and ultimately kill off all whites. Self-defense is never evil.
Made-up motives don't count.
You're wrong about Democrats. I'm not sure you've ever met one.
You're so up your own ass even going door-to-door talking about killing Democrats is pretty boring.
Not destroy The West! That's where I keep all my stuff!
It’s okay to suppress blacks because you don’t like how they vote.
That’s still racist, chief.
No, it isn't. Saying it is, is just lying. If a person's purpose is to suppress Democrat votes no matter who casts them, and to promote Republican votes no matter who casts them, then whatever he does for that purpose is not racist, no matter who is actually affected.
Dude, I think if someone just admitted they're ok with supressing black people's votes, it's okay to call them racist, you don;t need to come to their defence about it. That's not even the worst thing you could call someone who admits to that! There are SO MANY words for that person, and all of them perfectly fair!
(The 'kill all wite people' is a bit of an extra giveaway, if any were needed.)
Stereotyping blacks as all Dems and targeting them as proxy for Dem votes is sure as hell racist.
For example: 'It's not that I was targeting black people, I was targeting criminals and all black people are criminals!' is also racist.
Statistically, blacks are disproportionately Democrats and disproportionately criminals. The truth will set you free.
Treating individuals based on statistical trends is a great way to be bigoted - you are pre-judging individuals, to lay it out clearly for you.
But I'm pretty sure you're more troll than man at this point, so I'm not actually worried you don't understand; you just don't care as you try and get a rise from people about how edgy a partisan you are. *yawn*
That depends entirely on how you're targeting criminals. If you're arresting people, you need to have good evidence about that individual. But if you're characterizing a neighborhood as crime-ridden, whether you're advising people to avoid it or you're allocating police resources where they're most needed, then it's perfectly legitimate and not at all racist when it turns out the neighborhoods you so characterized are inhabited primarily by black people.
Bear in mind that redistricting, like allocating police resources, is done at a block or neighborhood level, not at an individual level. It is not aimed at any specific person, and it doesn't assume that every single person in the neighborhood votes Democrat or is likely to commit violent crimes.
Well I hope you're happy, you basically smeared that poor guy as not racist.
Bearing in mind that 'woke' was a fairly simple and harmless word black people used to indicate awareness of racism. and Republicans turned it into the one of the greatest bogeymen of the 21st century, I think it might might actually be because they're black, and if they voted Repiblican, you'd still do everything possible to reduce their democratic voice.
A bogeyman is a fake enemy. This one is real.
'Woke' is a word. Scared of words now?
(The answer is yes, you've terrified yourselves over it. Well, it's a synechodoche for black people. You're terrified of black people.)
This is what being black in America is about, follow no laws and never face any consequences.
https://nypost.com/2022/08/21/driver-without-valid-license-kills-5-in-wrong-way-crash
In certain parts of North America, things certainly seem to be headed in that direction:
https://www.theglobeandmail.com/canada/article-nova-scotia-court-of-appeal-rules-to-consider-history-of-racism/
Yes. It's not White Privilege. It's Black Privilege.
I blame systemic racism. If there wasn't any systemic racism, it wouldn't have to be taken into a account.
The only systemic racism is against whites. You liberals hate whites, and want us dead.
Yeah, black people experience discrimination and harassment, exclusion, marginalisation and violence brought about or exacerbated because of their race; white people have to live with the knowledge that somewhere, out there, a corporation is running an anti-discrimination-in-the-workplace training course. It's basically genocide.
No, blacks experience discrimination because they're basically a race of screwups.
Oh my stars and garters, what a shocking and offensive statement you clearly believe!
You gotta FIGHT
For your WHITE
Power parrrrrrty!
Yeah, you're being ridiculous and stupid and dumb and racist.
So have your company mandate training in the supremacy of White European thought and actions, then use this decision as a cite.
Another example of why the Japs/Krauts/Chinks are cleaning our clocks (why exactly is having your "Clock Cleaned" so bad? have a really nice Antique Grandfather clock, needs to be cleaned once in a while, it's an actual profession). Whatever happened to doing your job?
Charming comment from the guy who reflexively defends Prof. Volokh against any and all criticism.
Thanks Jerry
I have to say that list 1-8 is as succinct a summary of the seething cauldron of insecurity, resentment and thwarted privelege of the right as you're likely to get.
'If black people have been subjected to the most horrific racism through all of US history, then that means that white people are evil and you can't say that because IT'S RACIST HA HA GOTCHA!'
'If women are most often the victims of sexual harassment by men, then that means that steps taken against sexual harassment are by definiton steps taken against men and THAT'S SEXIST! BOOM!'
'You're the real racists/sexists' is going to be the Republican platform going forward, isn't it? Along with voter suppression and immunising all Republicans against actual laws.
You're jumping onto the QA bandwagon of inventing things that you wish your opponents would say. That's a bad sign.
Wish? I wish my opponents would say - hey here's our solutions to probems with the economy, the police, climate change, etc, let's debate the merits and the people can vote. Instead we get 'anti-woke' and 'CRT' as the blame for everything, and other problems are lies invented by 'them.'
The people calling this training harassment seem to be making exactly the conflation Nige is positing.
Not that they bother to connect the dots; they skip straight to the white victimhood.
Government by Judiciary, as Raoul Berger put it. The federal judiciary is an unelected oligarchy that has usurped all federal, state, and local government authority. That is largely the effect of the judicial innovation known as the incorporation doctrine.
" federal judiciary is an unelected oligarchy"
Black robed tyrants. Its now the "most dangerous branch" since the checks [impeachment, constitutional amendments] are so weak in face of life tenure and Ivy league herd mentality.
But it applies to many state judges too, see North Carolina
Among the prohibited concepts:
Florida allows teaching that prejudicial attitudes about these characteristics exist as long as you don't also teach that those attitudes have effect and individuals are oppressed as a result.
It is a compromise version of thought policing: Floridians are permitted to believe that discrimination exists as long as they also believe it is benign.
That is really a stupid take, and I mean that sincerely.
"Is necessarily" determined, would mean that one's race, color, sex, or national origin establishes, beyond contradiction, whether one is "privileged or oppressed". There's a hell of a lot of room for prejudicial attitudes to influence whether particular people are 'privileged' (Whatever the heck that means.) or oppressed, without that status being a necessary consequence of such an immutable characteristic.
"Necessarily" implies that Samuel L. Jackson is oppressed, and your random Appalachian hardscrabble farmer is privileged. It makes one's race, and so forth, the definition of 'oppressed' or 'privileged', quite irrespective of any objective considerations.
Literally, from the perspective this law rejects, a black mugger is oppressed, and a white victim is privileged to be shot.
This is not some straw man, either, there are people who will deny that blacks can be racist, or whites unprejudiced. Who will insist that all blacks are oppressed, all whites privileged. Who will actually defend 'definitions' of racism, privilege, and oppression, based on that concept.
So, Florida's law permits teaching about prejudicial attitudes, and privilege and oppression, so long as you don't insist on pretending race et all determines whether somebody is or isn't prejudicial, privileged, or oppressed.
Blacks are as capable of being prejudiced as whites, after all. As capable of being privileged, (Again, whatever that is supposed to mean.) as whites are of being unprejudiced or oppressed. Only a lunatic demands that people believe Obama's kids are oppressed, or a poor white man living in Detroit is privileged.
Sadly, there are such lunatics, and some of them are teachers.
'So, Florida's law permits teaching about prejudicial attitudes, and privilege and oppression, so long as you don't insist on pretending race et all determines whether somebody is or isn't prejudicial, privileged, or oppressed.'
I mean, obviously the whole point of this is to whitewash, as it were, racism out of everything. Discrimination is bad, everyone agree, but to suggest that people were or are discriminated against because of their race? That's a no-no.
Are you simply incapable of treating people as individuals, or just devoted to treating them as mere instances of a group as a matter of twisted principle?
Sure, discrimination happens. Both blacks and whites can suffer from it, both blacks and whites can commit it or be innocent of it. The oppressor and oppressed are mixed, not sorted along racial lines.
Bellmore — Historically? No. Sorted along racial lines is correct. We may teach history, may we not?
With that out of the way, on what principle must we neglect consideration of the present?
Historically? You mean, like in the past that we're not living in anymore?
Everyone know stuff that happened in the past has no affect whatsoever in the present, or the future. True individualism means being born completely anew into an instantly created then instantly destroyed universe at each passing moment.
"You didn't build that!"
Bellmore, get back to me when the present can get your simplistic individualism past the baby nursery test. Right now, today, there are about 30 babies being delivered at Brigham and Women's Hospital in Boston, just like every other day.
A cool thing about Brigham and Women's is that it is located in a mixed race area, and serves a racially various clientele. That means you can go into the maternity area at any time, and see newborns of various racial backgrounds in identical cribs, with identical hospital-provided swaddling for all. And, astonishingly—on the basis of your advocacy, totally unaccountably—you can with reasonable accuracy separate the babies into rough groups, ranked by family net worth, just by looking at the babies.
When that becomes impossible, your phony individualism will cease to be the racist disgrace it remains for now.
I'm capable of dealing with people on any number of levels, from individuals to couples, to sports teams, to clubs of hobbyists with shared interests, to people of religion, political affiliations, people of diffferent nationalities and races, to the whole global family of humanity. An obsession on individualism that erases all these and the complexity of their inter-relationships is borderline psychotic.
Like we saw with the Ohio abortion law you are confident you can predict how the courts will read this new statute, even though here you admit to not knowing what one of the words means.
Employers train their employees on these topics to mitigate hostile workplace liability under Title VII of the Civil Rights Act. This Florida law restricts what they can say in that training in ways that are not clear. They can't say racism causes Blacks to be "oppressed" just because they're Black, but can they say they are disadvantaged? Can they say at all that systemic racism exists and has systemic deleterious effects, without crossing the "oppressed" line? And if their training doesn't reach these topics are they at risk of it being found inadequate from a Title VII perspective?
You probably feel you know the answers but I suspect those Florida employers don't want to be your test case.
"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."
The state should voluntarily dismiss its case on remand and enact a new law that simply bans employers from mandating any training that does not directly and narrowly improve or increase the skill or knowledge required to perform his or her job. In a sane environment, I would never advocate such interference from the State, but in the insane "woke" environment Democrats have created, it is necessary for any state legislatures that are willing to do this to do so.
What a terrible idea. Truly. I don't know when this instinct to run home to Mommy and Daddy and get them to make the bully stop pestering them became our go-to response to problem solving. It's not a sign of the end of civilization as we know it, but it sure ain't healthy, either.
Did Prof. Volokh mention this speech-related development, or is he deferring to his hope that Ron DeSantis might bestow a favor or two upon him some day?
#Principles
#Courage
#FreeSpeechish
Don't you have a Barge to tote??
We don't have to consider it, we've already seen it. Social media giants engage is that same censorship, after numerous threats by members of Congress.
This is the most senseless comment of the day. I understand the brainless ranting of the MAGA cult, but none of the words in your post seem to even connect with each other or the quoted passage, except in the most literal sense of being English. Are you a bot?
A private company can have any requirement they like, of course. That being said I think anyone who found being subjected to this objectionable should immediately find different employment. Why would anyone wish to continue employment at a place they feel was hostile to them?
That approach seems unlikely to help most conservatives.
Where are half-educated, bigoted, superstitious people to go after Hobby Lobby, Chick-fil-A, and Stormfront have hired all the employees they can afford?
You've obviously never spent any time in Energy generation, construction, or distribution or Industrial Manufacturing.
Get an education, clinger. Start with standard English, focusing on punctuation.
You likely will need to travel at least 100 miles to reach a legitimate school.
Illiterate, backwater, right-wing rubes are among my favorite culture war casualties.
Exactly. There's a lot of power in taking charge of a situation and changing what you can without reference to others. You can be honest without giving details that may later come back to hurt you. For example, in your exit interview you can say (and write) something like, "I'm leaving because I didn't find this to be a welcoming environment." You don't need to provide details. If they press you, you can say, "I don't want to get into specifics. I just didn't feel welcomed."
You don't need to just stand there and accept unwelcome changes to the workplace, but you don't need to be a silent doormat either.
It’s pretty open and shut by any ordinary First Amendment standards.
The comments on this post suggest that the Founding Fathers are regarded as radical leftists by todays so-called “patriots,” who sound far more comfortable being ruled by a strong, tradition-upholding figure like King George III, and not having their strongly hel beliefs challenged, than having to deal with the radical revolutionary regime that was the American experiment.
As always, one can't help but note from the commentary that the Left's commitment to its fervent post-Citizens United mantra that "corporations aren't people and have no First Amendment rights" has waned considerably in recent years.
This topic is related to Prof. Volokh's recent series of posts regarding employee protections for their speech. Almost all activities by employers have elements of protected "speech" or "expression", from whom they hire and fire to how much they pay an employee. The ultimate question is whether the act being regulated are "inherently expressive" or more general business practices that government has traditionally been able to regulate. I'll concede that this law is a close call.
I'll also note in passing that, of all places, Connecticut (not exactly a hotbed of conservatism) recently passed a strikingly similar law, Connecticut Act 22-24, which prohibits an employer from firing or otherwise disciplining an employee who refuses to attend an employer-held meeting where “the primary purpose…is to communicate the employer’s opinion concerning religious or political matters.” “Political matters” is defined broadly under the statute and includes meetings regarding “the decision to support any political party or political, civic, community, fraternal, or labor organization.”
Put more succinctly, I believe that government has very wide latitude in regulating the employer-employee relationship.
There’s a difference. The older contrroversies imvolved arguably viewpoint neutral bans, laws prohiniting speaking at all (or under certain circumstances) without regard to viewpoint endorsed. Can corporations make political contributions? Can they include political tracts in their bills?
This law prohibits certain specific viewpoints and only those viewpoints. Ideas the legislature dissapproves of cannot be spoken, ideas the legislature approves of can be.
This makes this situation dofferent from the one in Citizens United.
I personally think that money is not identical to speech, and governnment can limit business corporations from spending on politics witjout running afoul of the First Amendment.
But a law like this would have been unquestionably unconstitutional even under the Citizens United dissent. Even under a view of the First Amendment that permits government to limit corporations’ participation in politics, any limitation has to be done without regard to political view supported. Any approach to First Amendment interpretation that has gotten any traction on the Court, whether from its left or its right, says government cannot prohibit expression of only specific political ideas it doesn’t like.
This legislation is well within the government's ability to pass anti-discrimination employment laws.
If, to use a hypothetical, a company mandated employee attendance at a training seminar entitled "How to Deal with Black Customers" that suggested blacks were intellectually inferior and prone to hostility and should be dealt with accordingly, that would almost certainly be found to create an illegally discriminatory hostile work environment toward black employees under Title VII. Any claim of a First Amendment right by the employer would be unavailing. Most people, whites included, don't enjoy mandatory lectures on how terrible their race is, and I don't subscribe to the notion that an employer has a "right" to so berate its employees.
Fair enough. But as both Somin and the judge argued, the Woke Act prohibits employers from advancing concepts that likely don't rise to a hostile work environment under Title VII.
Is there a decision that rules that Title VII is the absolute limit? I don’t think there is.
I don't understand your comment.
To Brett: As Somin noted, it would also violate the First Amendment if the law prohibited mere training or other activities that offended left-leaning sensibilities. Title VII requires more than just offensive training or activities.
Like "don't rise to a hostile work environment under Title VII" is some kind of objective measure, rather than just a tacit admission that 'some animals are more equal than others'; That Title VII has never been applied in a non-discriminatory manner.
I haven’t looked at this, but from what you say it’s not an identical law. Permitting people to opt out from listening is clearly not the same as prohibiting people from speaking in the first place. There’s an obvious difference.
Perhaps the Connecticut law might still violate employers’ rights in some respects, perhaps not. Perhaps it might also suffer from a fatal lack of viewpoint neutrality. But there are many laws that let employees opt out of certain things.
As I understand the Florida law, it similarly doesn't per se ban such programs, but bans adverse employment action against someone for not attending such a program.
But, as you say, if the instant case is correct, then the Connecticut law may be unconstitutional as well. Needless to say, I haven't studied the specifics of both laws to see how they may differ.
It appears both the Florida and Connecticut laws allow the speech to proceed so long as employees can opt out. However, only the former is not viewpoint neutral, noting that usually content neutrality is also required and the Connecticut law is not content neutral.
Ok, there may be problems with the Connecticut law. Example: employee at kosher restaurant objects to training on kosher food-handling rules on grounds it’s religious instruction, invokes right to opt out.
Let’s assume it’s unconstitutional.
Nonetheless, the fsct that another state might have an unconstitutional law doesn’t justify this one.
It's all about free speech until some company decides to train employees based on eugenics theory that blacks are inherently less intelligent.
Then the courts will step in and squelch that speech because they didn't mean ALL free speech!
I'm actually a free speech absolutist but laugh how staunch the courts are on racial issues in one direction but seem to find ways to restrict equally bad speech in the opposite direction.
I think the FL law was pushback in that direction but it does violate 1A. But AA blatantly violates 14A and yet we still have it.
As Professor Volokh has commented on over the years, and as the judge’s opinion in this case notes, there is some tension between current harassment law, or at least some interpretations of it, and the First Amendment. People these days seem to be quick to label ideas that make them uncomfortable harassing.
I would tend to agree with Professor Volokh that harassment law is not always constitutional in all its potential applications. It is by no means clear that harassment law is as far from the border and is as clearly on the side of permissable restrictions as the judge in this case suggested.
Nonetheless, at most only some applications of harassment law would be unconstitutional. One could argue that overbreadth should apply. But nonetheless there is a great deal of potential constitutional application, and unconstitutional applications could be addressed in individual cases with the courts cabining the law to limit it to constitutional bounds.
But this law is different. This law, because it prohibits any expression of certain prohibited ideas even in passing, is clearly unconstitutional on its face.
There is a real difference.
There is. Wonder if this will stand.
https://thechalkboardreview.com/report-minneapolis-will-fire-white-teachers-first/
You can bet on it.
https://reason.com/volokh/2022/08/15/race-based-layoff-scheme-at-minneapolis-schools/?comments=true#comment-9652502
The argument against overbreadyh is that harassment law isn’t really a speech law. It is mostly about conduct and only occassionally involves speech. Or at least that was the original idea.
I'm actually a free speech absolutist but laugh how staunch the courts are on racial issues in one direction but seem to find ways to restrict equally bad speech in the opposite direction.
Funny how many of these free speech absolutists really only complain about one kind of speech.
Conservative: I have been censored for my conservative views
Me: Holy shit! You were censored for wanting lower taxes?
Con: LOL no...no not those views
Me: So....deregulation?
Con: Haha no not those views either
Me: Which views, exactly?
Con: Oh, you know the ones
No I complain about inequality in it's application. I complain how some speech is restricted but other is allowed to stay. That's also free speech. Complaining about it.
How unequal treatment in regards to racial issues (like CRT) are Ok but would never be tolerated in the reverse. How AA is applied very narrowly and only for disparities in one direction. If you can find a counter example to this let me know.
But I forgot you're a partisan hack , go away.
You say this, but you only seem to point out the double standard when it comes to one kind of speech.
Have you looked into the history of the First Amendment and the CRA? You have not. You just see some right-wing censorship go down in flames yet again and want to, yet again, point left and ignore that the right are trying to censor stuff yet again.
You either have freedom of speech or you don't. We, increasingly, don't. I'm glad you think it's funny.
Correct. For liberals, it's free speech for me but not for thee.
They consider it "hostile work environment" to talk about black mental inferiority.
'Why CAN'T I racially abuse black people in the workplace? First amendment!'
Talking about how blacks generally are genetically lower IQ does not abuse any individual black.
Oh it absolutely and definitely and unquestionably does, you racist muppet.
Talking about how blacks generally are genetically lower IQ does not abuse any individual black.
Doesn't it? You believe that all black people are inherently less intelligent, but we should believe that you wouldn't treat any individual black person as such?
Look, I think the case for blacks being genetically less intelligent isn't terribly strong, (Charles Murray doesn't think it's all that strong, either!) but let's at least be honest about what's being asserted here: It isn't that "all" black people are inherently less intelligent. It's that the broad bell curve of intelligence distribution has a different center for blacks and whites.
Even if that's true, the curves still overlap to the point where there will be plenty of blacks smarter than the average white, even genius level, and plenty of whites who are stupider than the average black.
So believing this to be true doesn't tell you diddly squat about any individual you meet. Individuals ARE individuals, not just instances of the group. All it implies, really, is that you shouldn't assume that disparate results are a consequence of discrimination, they could be a result of disparate ability.
Statistical generalizations are only useful in statistical discussions, in other words. Nobody you actually MEET is a statistic!
“No fair, you get to teach that blacks are no different from anyone else but I can’t teach that they are a sub-human species of low intellect? What kind of bullshit is that?!”
What a tool.
But I will admit to some curiosity over this business that trains it’s employees that blacks are inferior. What is it about the jobs that require such training? What does the company do? What do they produce?
Tiki torches.
Just another predictable comment from the Volokh Conspiracy's carefully curated collection of commenters.
Of which you’re one. How does it feel to be curated ?
No fair, you get to teach that blacks are no different from anyone else
Well, that's one way to misrepresent things.
I think this case was decided correctly. And, as a separate matter, I think this law is a bad idea (even though I sympathize with the ideologically-imposed-upon employees):
https://reason.com/volokh/2022/08/20/the-good-ship-fifth-circuit-denies-en-banc-review-in-sambrano-v-united-airlines/?comments=true#comment-9662353
Here's one glaring problem. Suppose a white supremacist employer were to require all employees to attend training advocating the moral superiority of the white race, the segregation of the races, discrimination in favor of white people, etc. Or suppose they required employees to read a book advocating such concepts. Do you suppose for one second that the employer would not immediately be hit with a Title 7 complaint, or that there exists a court in the land that would not uphold that charge?! It is ridiculous to think so. We all know it is not true. So how can you come and tell us that a law explicitly banning such a requirement violates the constitution?
Or forget "any court in the land". Do you expect any of us to believe that Judge Mark Walker of the Northern District of Florida would not uphold such a charge? Do you expect us to believe he would protect an antisemitic employer's right to make his employees read Mein Kampf or to make them attend training sessions that used the Protocols of the Elders of Zion as their text?! You cannot expect us to believe such a thing. So don't come and tell us that now he is upholding the first amendment.
Correct. Actually just flipping the required employee training to point to the obvious examples of "black privilege" like AA would somehow not be considered free speech. Versus the imaginary knapsack of white privilege.
Harassment would be the excuse.
If you main argument is hypothetical double standards, you don't have much of an argument.
The double standard is far from hypothetical. It's readily visible, and you know it very well. My case is hypothetical, only because nobody actually dares to do something like that because they know they will be stepped on hard. Plus there are few employers who would even want to impose this sort of mandatory training on their employees, even if they could. But there are many employers who not only want to but actively do force their employees to undergo reeducation in black supremacy, and this corrupt hypocritical judge claims the state can't forbid it. And Somin applauds, knowing full well that it wouldn't be allowed the other way.
Bad is not a category. Don’t be silly.if to so clear why are so many posters resorting to a hypo?
“Mayor Quimby, you are well known for your lenient stance on crime, but suppose for a second that your house was ransacked by thugs, your family was tied up in the basement with socks in their mouths, you try to open the door but there's too much blood on the knob—“
We can always count on conspiracy namesake and resident 1A scholar Prof. Volokh weighing in whenever a campus protests an appearance by a Jordan Peterson or a Geert Wilders or Grand Kleagle, or when a prof leaves a university under a hail of “I’m being repressed” while he’s actually on his way to a better sinecure. And we can near as frequently expect him to disappear when an actual government passes constitutionally dubious laws like the WOKE Act or telling medical doctors what they can and cannot say to their patients (anti-discrimination laws among the exceptions).
Prof. Volokh has become a predictable, paltry, partisan cherry-picker.
Likely because he recognizes that his carefully cultivated fans are too gullible, stupid, and delusional to recognize the manner in which he lathers them.
Recent history suggests that the Left is much more enthusiastic about indoctrination than free speech, so one might be forgiven his cynicism in suspecting the Leftist commentariat's enthusiasm about the result in this case is more about an employer's right to the former rather than the latter.
In the case of Cohen v. California403 U.S. 15 (1971), the Court famously overturned a conviction for disturbing for the peace of a man who wore a jacket emblazoned with the words "FUCK THE DRAFT" on the back. The Court wrote, "Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes. And, while it may be that one has a more substantial claim to a recognizable privacy interest when walking through a courthouse corridor than, for example, strolling through Central Park, surely it is nothing like the interest in being free from unwanted expression in the confines of one's own home." Id. at 21-22.
There is an obvious corollary to that general rule that the Court has recognized as the "captive audience doctrine", which is pretty much what it sounds like. Sometimes, the option of "averting eyes and ears" is not reasonably available, meriting government protection for those subjected to speech against their will. In Kovacs v. Cooper, 336 U.S. 47 (1949), the Court upheld a municipal ordinance forbidding the use of "loud and raucous" sound trucks. "The unwilling listener is [336 U.S. 77 , 87] not like the passer-by who may be offered a pamphlet in the street but cannot be made to take it. 12 In his home or on the street he is practically helpless to escape this interference with his privacy by loud speakers except through the protection of the municipality." Id. at 86-87.
In Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), the Court extended the captive audience doctrine to passengers on a streetcar, upholding the city's ban on playing political ads over the speaker system against a First Amendment challenge. The Fifth Circuit extended the captive audience doctrine to the college classroom in upholding the dismissal of a professor for incessant use of profanity. Martin v. Parrish, 805 F.2d 583 (5th Cir. 1986).
The judge in the instant case notes that neither the Supreme Court nor the Eleventh Circuit has extended the captive audience doctrine to the employment context. But other courts have. See, e.g., Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486, 1536 (M.D. Fla. 1991) ("Few audiences are more captive than the average worker. Certainly, if employer-employee relations involve sufficient coercion that we justify regulation in other contexts, then this coercion does not suddenly vanish when the issue is submission to racist or sexist speech. The free speech guarantee admits great latitude in protecting captive audiences from offensive speech.") (internal citations, quotation marks, and ellipses omitted); Aguilar v. Avis Rent A Car System, Inc. 980 P.2d 846 (Cal. 1999) ("Plaintiffs were not present at their job because they wished to hear Lawrence's particular views on their Latino heritage, but neither were they reasonably free to walk away when confronted with his racial slurs. Although plaintiffs could have avoided the undesired speech by quitting their jobs and seeking employment with more racially tolerant supervisors, the cases discussed above indicate the captive audience doctrine is not reserved for situations in which listeners are physically unable to leave, such as passengers on airplanes or inmates in prison. The Constitution does not require plaintiffs to sacrifice their employment to avoid a racially clamorous work environment.")
Prof. Somin has a blind spot typical of the modern libertarian; he is quick to defend the First Amendment rights of employers, forgetting that employees also have First Amendment rights that may be in conflict with those of the employer.
Both of your captive audience decisions involved cases of a hostile work environment that negatively impacted employees. But, as I mentioned above the Woke Act doesn't meet the standards for a hostile work environment and thus perhaps does not sufficiently protect employees to trigger the captive audience doctrine.
"Hostile work environment" is a hollow phrase. Like discrimination, it can mean whatever a legislature says it means. May an employer discriminate based on height? Not if the legislature passes a law that says he can't.
This law does not really restrict speech at all. It does not deny anyone, employer or otherwise, the right to hold any view or express it. It only says he can't lock people in a room and force them to hear it. Anyone can rent a theater, but he can't force people to come hear him speak. Anyone can write a book, but he can't force people to read it. The First Amendment only gives you a right to express your ideas, not the right to an audience for your ideas.
This law, like any anti-discrimination law, is well within the state's traditional ability to regulate the employer-employee relationship. The only people having their rights infringed are those forced to submit to speech they don't want to hear.
(Whether the law is a good idea is an entirely separate question form its legality, but nowadays too many people are of the mind that, "If I don't like a law, it must be unconstitutional.")
If the law only regulates conduct, then of course the law is permissible and we don't reach questions about a captive audience. But given this judge's ruling that speech is regulated, I thought you were arguing that perhaps it is still permissible because of the captive audience doctrine espoused in your two decisions.
I was merely hypothesizing there might be a distinction in that doctrine (which is not well accepted nor fleshed out as applied to the workplace) based on how negatively employees are impacted. Perhaps that distinction permits laws restricting speech that give rise to a hostile work environment (very negative impact) but not allow laws that restrict speech from the Woke Act (not as much of a negative impact on employees who hear the speech against their will).
Having read this comment thread, I come away with one, abiding conclusion:
Using the law to enforce matters of conscience is a losing proposition.
It's a loser in every way:
Spare me. Spare us all. Everybody, back to your desks, put your own houses in order, and let our first instinct be to let people deal with their problems in their own way, without any interference from busybodies.
I think this is an awful law, but it's about concrete actions by private companies not conscience.
Well, "concrete actions" that seek to impinge on matters of conscience, you mean. Kind of a distinction without a difference, but OK, I'll bite.
I think Title VII is wrong in all kinds of ways to begin with, but accepting it as a starting point.... Once government gets to say "you can't do X or permit X in your workplace," government also gets to say "A, B, and C qualify as X" freely. What this court is actually saying is "we get to decide what's X, and legislatures can't".
This is what black America is about. Constantly demand our money.
https://www.cnn.com/2022/08/24/perspectives/student-loan-debt-biden-naacp/index.html
Now you know why conservatives try to suppress this vote. They use their vote as a weapon to steal money for themselves and to excuse the criminality prevalent in their group.
The problem here, known to all moral competent lawyers, is you only have 2 choices: 1) legally define 'woke' or 2) give the state L(give?) authority to see it and call it when they see it.
For many of the leftists here, anti-liberty animus > any attachment to reality.
It is, trivially, necessary to restrict oppressors for the sake of liberty.
Like people responsible for racially targeted voter suppression? Those kinds of oppressors? Should they be restricted, then?
If you could actually find one outside your rich fantasy life.
Racially targeted voter suppression?
https://www.newyorker.com/news/news-desk/the-secret-files-of-the-master-of-modern-republican-gerrymandering
Hofeller’s files include dozens of intensely detailed studies of North Carolina college students, broken down by race and cross-referenced against the state driver’s-license files to determine whether these students likely possessed the proper I.D. to vote. The studies are dated 2014 and 2015, the years before Hofeller helped Republicans in the state redraw its congressional districts in ways that voting-rights groups said discriminated on the basis of race. North Carolina Republicans said that the maps discriminated based on partisanship but not race. Hofeller’s hard drive also retained a map of North Carolina’s 2017 state judicial gerrymander, with an overlay of the black voting-age population by district, suggesting that these maps—which are currently at the center of a protracted legal battle—might also be a racial gerrymander.
Craaazy.
When the single libertarian contributor to this blog expresses a liberty-loving opinion, the leftists are not the ones who froth, sputter, mutter, and complain.
This is weak.
Someone points out issues on this thread, and you respond with ‘oh yeah well liberals hate freedom!’
Schoolyard crap.
Kicking these half-witted conservative and Republican bigots around is not very sporting any more. It is almost too easy.
But it is still an enjoyable and noble endeavor.
Of course, you realize that it's racial gerrymandering all the way down, because the current interpretation of the Voting rights act requires racial gerrymandering.
According to 538's gerrymandering calculator,
A map drawn to be maximally competitive would have no majority-minority districts.
A map drawn to produce maximally compact districts would have no majority-minority districts.
A map drawn to produce as compact of districts as possible while following county lines would have one majority-minority district.
A map drawn to produce proportional representation between the parties would have one such district.
A map gerrymandered to favor Democrats would have two majority-minority districts.
A map gerrymandered to favor Republicans would have two majority-minority districts.
The map the court thought so awful that it justified declaring members elected under it illegitimate had two majority-minority districts.
A map maximizing majority-minority districts while strictly following the rules for equal population and compactness would have three majority-minority districts.
You're complaining, not of a racial gerrymander, but of a failure to maximize racial gerrymandering.
What an amazing act of clairvoyance-come-journalism -- looking at some files purloined from a dead dude's hard drive and infallibly divining intent!
It's very helpful to understand that all your yammering about conspiracy theories gets swept under the rug given the correct partisan circumstances.
Sounds like a (Wet) Dream
Jesus Brett, you forgot Jim Crow again.
Look up the case that got the Court involved in the fist place, and who was responsible.
Did you read my article? I'm complaining about a specific and clearly laid out secret GOP plan to dilute black votes. And you seem to be defending that tactic, because....you think the black vote is too strong now? Wow.
I refer you to my earlier comment:
'If black people have been subjected to the most horrific racism through all of US history, then that means that white people are evil and you can't say that because IT'S RACIST HA HA GOTCHA!'
Or in this case - in order to correct racial gerrymandering, you will have to racially gerrymander - checkmate, libs!
What I'm saying is, under the current interpretation of the Voting Rights act, you literally HAVE TO analyze this sort of data, to AVOID having your map declared unconstitutional. If you draw a map without looking at race, you don't naturally produce the "majority-minority" districts the courts are demanding. NC maps drawn without consideration of race don't have those "majority-minority" districts the courts demand, they're purely a product of deliberate racial gerrymandering.
He HAD to collect that data, to have even a prayer of producing a map the courts wouldn't strike down. So it's damned if you don't, damned if you do: Ignore race and you automatically end up with maps the courts will strike down as racist. Pay attention to race and it gets treated as proof of racist intent.
The only way to get as many "majority-minority" districts as the court wanted in North Carolina was to collect detailed racial data, and deliberately gerrymander them into existence. The court's complaint was that the map wasn't racially gerrymandered ENOUGH.
To be clear, I'm pretty sure the Republicans were gerrymandering NC. They just were politically gerrymandering.
And they actually politically gerrymandered less than they might have, in an effort to create enough racially gerrymandered districts to satisfy the judiciary. But it wasn't enough, the court wanted racial gerrymandering turned up to 11.
They were DOING the BARE MINIMUM what more do you want? Buncha racist assholes.
Nige, what the fuck are you talking about? Why are blacks or Hispanics entitled to be grouped with other blacks or Hispanics so that they can bloc vote one of their own? No other group is given that privilege.
The gerrymandering, and other voter supression tactics, are specficially designed to maximise the power of white Republicans, but that's only a problem if you don't think that's how it's spozed to be.
I'm pretty sure the Republicans were gerrymandering NC. They just were politically gerrymandering.
Brett, the guy planning it out had documents specifically about black people, not Democrats.
Even if he's using one as proxy for the other, that's still targeting blacks.
Sarcastro, why should blacks, philosophically, have the same power as whites? The average black IQ is a full standard deviation below that of whites, meaning that the average adult black has the mental acuity of a 12 year old white. If you wouldn't let pre-teens vote, you shouldn't be encouraging semi-retarded blacks to vote either.
As I pointed out to you, in order to politically gerrymander, and have any chance of a court not striking it down, you HAD to have and use racial data, because the courts flatly demand that you racially gerrymander. And you can't do that without the data.
IF we dropped that absurd interpretation of the Voting rights act, and simply required that redistricting be done without any reference to race, then the fact that a map drawer went out of their way to collect racial data would, indeed, be incriminating. I'd love to see that happen.
But since the courts actually mandate that redistricting take race into account, possession of that data can't be considered incriminating.
::monocle pops off::
My word, how uncouth is your sincere question predicated on carefully considered facts!
you HAD to have and use racial data, because the courts flatly demand that you racially gerrymander. And you can't do that without the data.
This. Is. Still. Racist. As. Fuck.
I don't care if the only method they had at hand was to disenfranchise black people. You shouldn't care either.
IF we dropped that absurd interpretation of the Voting rights act, and simply required that redistricting be done without any reference to race, then the fact that a map drawer went out of their way to collect racial data would, indeed, be incriminating.
No, actually this does not excuse targeting blacks. I don't care how much you resent the law and think whites are oppressed, you are responsible for your own actions.
Sarcastro, did you not read his response? You can't not take race into account and not get in trouble for gerrymandering, as anything other than giving blacks a majority black district and free iPhones and oral sex from white cheerleaders is going to be considered "racist."
I love the idea that after all the efforts put in by Republicans to disenfranchise them because they're black, it'd be unreasonable for them to be lumped together in districts to maximise the power of their votes.
"I don't care if the only method they had at hand was to disenfranchise black people. You shouldn't care either. "
You are obstinately not getting what I'm saying. In this scenario they had the race data to create 'majority-minority' districts, something ANYBODY drawing maps under current judicial precedent must do. You either obtain and use race data to draw your map to artificially include as many 'majority-minority' districts as possible, or the courts strike it down as a Voting Rights act violation.
You can't use possession of racial data as proof of guilt when the courts are literally demanding you have and use it! I assure you the Democrats have and use such data, too. ANYBODY drawing redistricting maps under current precedents has to, or see them struck down.
Using tape to fix a broken thing is good.
Using tape to shave other people is bad, even if you don't have any other way to shave people.
The first does not change the second.
Deliberately obstinately not understanding, then.
Yeah, after the past several years of exchanges I suspect that about 98+% of the time Sarc understands just fine.
Just imagine what he (and others around him) could accomplish in life if he were to redirect his time, energy, and gray matter to something more productive than playing so supremely dumb.
'You either obtain and use race data to draw your map to artificially include as many 'majority-minority' districts as possible, or the courts strike it down as a Voting Rights act violation.'
Or you use it to to gerrymander in way that discriminates against black people, just as he was doing.
I pointed out above that, based on the 538 gerrymandering calculator, a map drawn in NC without regard to race or any other criteria other than compactness and equal population, would have ZERO 'majority minority' districts. If you added in trying to follow county lines where possible, you might get one.
The map he produced had TWO. They'd unquestionably used the racial data to INCREASE the number of 'majority minority' districts, not to eliminate them.
But facts don't really matter to you.
Private employers most certainly can be oppressors. And there are many things the law can do to cabin their oppression, But the First Amendment says that expressing political ideas people don’t like isn’t the sort of oppression the law is able to address.
And that's the problem with people who think it's a "black" problem. It isn't; Your average black engineer or doctor, living in the burbs, is no more likely to shoot somebody than his white neighbor.
The problem is actually gang culture. Mostly inner city, but with a lot of Mexican drug gang influence rising now, due to the deliberately insecure border. Blacks may be disproportionately members of that culture, but whites who are members aren't any better.
If you really want to pin down the problems you need to go deeper and wider than that..
This isn't as good a counter-argument as you might think it is, because you've changed the scope of the bad behavior from all the subjects in the class to just some of them. You probably didn't even notice it, you probably just copy-and-paste responded to the original argument by substituting terms.
But In fact, making just this tiny adjustment takes you completely out of the entire argument altogether. The very argument itself is about sorting people into categories "by necessity". It's about all white people being this, and all black people being that.
By substituting "some" for "all", in fact, you've made the very best argument in favor of your respondent. Even you agree that there's a fundamental problem with making categorical claims like this.
Bingo! That "by necessity" is the heart of this: They're prohibiting forcing employees to attend training where they're taught that ALL blacks are oppressed, ALL whites are oppressors. Yeah, Obama is oppressed, some Norwegian who moved here last week and has never so much as met a black person is an oppressor. That stupid.
Nothing in this law prohibits teaching that some blacks are oppressed, or some whites oppressors. That's obviously true, but the 'woke' don't want to teach THAT, because it allows some random white guy to say, "Sure, but what have *I* ever done? Nothing." And they don't want that to be admissible, they want just being white to be proof of guilt.
They're prohibiting forcing employees to attend training where they're taught that ALL blacks are oppressed, ALL whites are oppressors.
Very much not established.
Except, you know, for the actual text of the law.
Once again you ignore the stated planned implementation of the law.