Lawsuit: So-called ‘Don’t Say Gay’ law may have free speech implications for FL students, teachers

First Amendment is a cornerstone of the lawsuit against the governor and other officials

By: - April 1, 2022 6:24 pm

Students protesting on the 5th floor of the Florida Capitol Building. Mar. 3, 2022. Credit: Danielle J. Brown

A pivotal lawsuit this week in Florida — related to classroom instruction of sexual identity and gender orientation — could have heavy implications for what the discussions will look like when it comes to free speech and the First Amendment.

Gov. Ron DeSantis claims that the new law he signed, referred to by critics as “Don’t Say Gay,” does not affect free speech. He’s a Harvard Law School graduate. But LGBTQ advocates claim that the vague nature of the law makes boundaries of acceptable instruction unclear, leading to a chilling effect in Florida’s public schools.

As the lawsuit against the governor and education officials makes its way through the court system, a fundamental debate for attorneys will be whether the new law infringes on a student or teacher’s freedom of speech to talk about matters pertaining to the LGBTQ community.

Plaintiffs include LGBTQ students and families, as well as the statewide LGBTQ advocacy group Equality Florida and New York-based LGBTQ advocacy group Family Equality.

The law being challenged is officially entitled “Parental Rights in Education,” but it’s been dubbed “Don’t Say Gay” or “Don’t Say Gay or Trans.” Supporters of the legislation claim that the new law protects a parent’s right to direct the upbringing of their children and that some topics are best discussed at home.

The wording reads: “Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age-appropriate or developmentally appropriate for students in accordance with state standards.”

‘This law does not chill speech’

For those who need a refresher, here is the plain text of the First Amendment:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

First Amendment of the US Constitution text. Getty Images

Freedom of speech and the First Amendment is of concern in the lawsuit filed Thursday, though there are other claims such as the Fourteenth Amendment, which says no state can deprive any person of life, liberty, or property.

In an email to the Phoenix, DeSantis’ communication director, Taryn Fenske, told the Phoenix that the lawsuit is “a political Hail-Mary to undermine parental rights in Florida.”

“Perhaps the most baffling charge is that this law violates the First Amendment,” Fenske said. “This law does not chill speech – instead it returns speech on these topics to the parents. The law does not prohibit student-prompted discussion in the classroom. The law does not prohibit teachers from having opinions, lifestyles, or advocacy in their personal right on their own time, and this law does not prohibit teachers from responding to student questions.”

DeSantis himself echoed this interpretation on Thursday, saying that “it’s (the new law) really focusing on what schools — what’s appropriate for schools to do. It doesn’t even regulate student speech…But the bill does provide substantive protections for parents.”

Gov. Ron DeSantis signs legislation increasing parental access to reviewing school materials and library books on March 25, 2022. Credit: screenshot/Florida Channel

“You’re challenging it legally – are you arguing that there is a constitutional right to have classroom instruction for first graders about things like transgender and gender ideology? I can’t imagine that a court would accept that, clearly on an appeal court wouldn’t accept that,” he said at the Thursday press conference.

DeSantis and supporters of the bill largely focus on the younger grades, but the bill potentially has implications for older grades.

The legislation says that classroom instruction on gender identity or sexual orientation may not occur in kindergarten through 3rd grade “or in a manner that is not age-appropriate or developmentally appropriate for students in accordance with state standards.”

Meaning there are limitations on these discussions for older students too — not just elementary kids.

‘Chilling effect’

A large component of the lawsuit claims that the chilling effect of the bill does infringe on free speech rights of students and teachers, among other concerns.

The lawsuit claims that the new law is “overbroad” and not “narrowly tailored” due to a lack of clarity in the legislative language, potentially infringing on the student plaintiffs’ “rights to receive information and ideas, and their right to freedom of expression.”

“This overbreadth has a chilling effect on the behavior and speech of students…resulting in the self-censoring and intentional avoidance of a broad, sweeping category of protected speech,” the lawsuit says.

The lawsuit claims that the new law restricts the ability of student plaintiffs “to discuss topics related to sexual orientation and gender identity in class and related settings, and even restricts their ability to self-identify.”

The unclear boundaries could also infringe on teachers’ speech and behavior, saying that “teachers are discouraged from providing students with accurate information about sexual orientation and gender identity for fear of violating the law.”

LGBTQ advocates have been vocal about the chilling effect in classrooms.

During a virtual press conference Friday on the new law, Cathryn Oakley, a senior staff member of the Human Rights Campaign, responded to DeSantis’ claim that the bill doesn’t involve free speech.

“Just because Ron DeSantis said it, doesn’t mean it’s true,” Oakley said. “Because this bill is so vague, and because it’s so overbroad, the chilling effect is an incredibly important aspect of this, because if the bill was only to be about curriculum, that’s not actually what it says, and it’s certainly already not even what the impact is.”

Oakley continued: “If that’s what we’re talking about, is teachers are being reported for having stickers, for having t-shirts. It’s not just about what the law was quote-unquote intended to do. Which is, by the way, its own conversation. Because if you look at the legislative history around this bill, this bill is absolutely intended to marginalize LGBTQ youth, to take conversation about LGBTQ things out of the classroom.”

The lawsuit highlights cases of teachers and schools preemptively restricting conversations or even classroom instruction on LGBTQ matters in light of the passage of the law.

Volunteers unfurl a giant banner printed with the Preamble to the U.S. Constitution. Photo by Chip Somodevilla/Getty Images.

“There were limiting amendments that were introduced and then rejected. So it is, it is clear that the overbroad and extremely vague language here was an intentional choice made by the proponents of this bill. And therefore, they have to own the consequences. And the consequences include, clearly, major implications for teachers who do have free speech rights, even within the classroom. So, I think that is incredibly important to say and I, for one, do not take Gov. DeSantis at his word in terms of how the courts are going to interpret pieces of legislation. He is absolutely incorrect on this one,” Oakley said.

Free-speech advocacy group PEN America referred to the new law as an “educational gag-order” in a post from earlier this week. The organization identifies such legislation as appearing to be “designed to chill academic and educational discussions and impose government dictates on teaching and learning.”

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Danielle J. Brown
Danielle J. Brown

Danielle J. Brown is a 2018 graduate of Florida State University, majoring in English with a focus in editing, writing, and media. While at FSU, she served as an editorial intern for International Program’s annual magazine, Nomadic Noles. Last fall, she fulfilled another editorial internship with Rowland Publishing, where she wrote for the Tallahassee Magazine, Emerald Coast Magazine, and 850 Business Magazine. She was born and raised in Tallahassee and reviews community theater productions for the Tallahassee Democrat. She spends her downtime traveling to all corners of Florida and beyond to practice lindy hop.

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