The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.