The Volokh Conspiracy

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Free Speech

Court Blocks Florida Stop WOKE Act's Limits on What and How Public University Professor Can Teach


The Foundation for Individual Rights and Expression reports:

Today a federal court halted enforcement of key parts of Florida's "Stop WOKE Act" in the state's public universities, declaring that the law violates the First Amendment rights of students and faculty.

The court ruled that the "positively dystopian" act "officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints." The court invoked George Orwell to drive home that if "liberty means anything at all it means the right to tell people what they do not want to hear."

In September, the Foundation for Individual Rights and Expression filed a lawsuit challenging Florida's Stop WOKE Act. FIRE's lawsuit, on behalf of a professor, student, and a student group, argued that the higher education provisions of the act unconstitutionally chill free expression and mandate faculty censorship on the state's college campuses….

In the wake of the Stop WOKE Act—which restricts instruction on eight concepts related to "race, color, national origin, or sex" in college classrooms—colleges warned faculty that the law prohibits endorsing "any opinion unless you are endorsing an opinion issued by the Department of Education," limits offering a "critique of colorblindness," and requires faculty to censor guest lecturers….

To defend its position, Florida argued that faculty members speak on behalf of the government, which can "prohibit the expression of certain viewpoints." The state also agreed that its theory meant that if Florida's government changed hands, it "could prohibit … instruction on American exceptionalism because it alienates people of color and minorities because it suggests … that American doesn't have a darker side that needs to be qualified." As FIRE pointed out, that argument is at odds with every federal appellate court to have considered the question….

Judge Walker rejected the state's arguments that faculty speak for the state—that is, that "so long as professors work for the State, they must all read from the same music." The court made clear: "The First Amendment protects university professors' in-class speech." …

In contrast to other lawsuits challenging the act filed by the NAACP Legal Defense and Educational Fund and the American Civil Liberties Union, FIRE's suit is limited to higher education and does not take a position on the truth of the prohibited concepts of race and sex. Rather, FIRE takes the viewpoint-neutral approach that faculty retain the right to give an opinion—whether that opinion supports or opposes the prohibited concepts in the Stop WOKE Act….

The opinion is quite long (35,000 words!), so I may not be able to get to it for a bit, but I thought I'd pass along FIRE's summary. Note that the government is generally allowed to closely control what is taught in government-run K-12 schools, though university faculty have generally (though not uniformly) indeed been seen as having substantial free speech rights.

Congratulations to Adam Steinbaugh, Greg Greubel, and Joshua Morris of FIRE, and to Garry Edinger, all of whom represented the plaintiffs. Note: I've consulted for FIRE in the past, and expect to work closely together with them on other projects, but I was not involved in this case.