DeSantis loses another First Amendment fight, this one over ‘Stop Woke Act’

U.S. judge blocks enforcement of ban on race, gender sensitivity training

By: - August 19, 2022 1:31 pm

Schoolchildren at a public charter school in South Florida attend a bill signing, HB 7, with Gov. Ron DeSantis. CRT references Critical Race Theory. April 22, 2022.

A federal judge invoked “Stranger Things,” Immanuel Kant, and Friedrich Nietzsche in dismantling the state’s defense of Gov. Ron DeSantis’ “Stop Woke Act,” declaring the effort to constrain workplace sensitivity training violates the First and Fourteenth Amendment.

In a 44-page opinion, U.S. District Judge Mark Walker in Tallahassee ruled that the law — formally, the Individual Freedom Act, or IFA — amounts to an attempt by the state of Florida to impose its preferred positions about the existence of systemic racism and sexism on the workplace and public schools.

DeSantis signed the measure in April.

“Florida’s legislators may well find plaintiffs’ speech ‘repugnant.’ But under our constitutional scheme, the ‘remedy’ for repugnant speech is more speech, not enforced silence. Indeed, it is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail,” Walker wrote.

“If Florida truly believes we live in a post-racial society, then let it make its case. But it cannot win the argument by muzzling its opponents. Because, without justification, the IFA attacks ideas, not conduct, plaintiffs are substantially likely to succeed on the merits of this lawsuit.”

Mark Walker testifies to the Senate Judiciary Committee during his nomination hearing to be a federal judge on May 9, 2012. Credit: Public domain

The judge also ruled, in an opinion handed down on Thursday, that the law is impermissably vague under the Due Process Clause of the Fourteenth Amendment because its definitions of what’s objectionable are too vague, even “unintelligible.”

Walker ruled in a complaint filed by Inc., a technology company in Clearwater with 16  employees, and Team Primo, a Black-owned Ben & Jerry’s franchisee in Clearwater Beach and Tampa, that wanted to conduct sensitivity training, and by a consultant who conducts the training.

The named defendants were DeSantis, Attorney General Ashley Moody, and members of the Florida Commission on Human Relations who would enforce the law, although the injunction doesn’t apply to the governor because he doesn’t directly enforce the law.

The decision doesn’t discuss the law’s application to schools, since the plaintiffs didn’t raise that matter.

Walker noted that this was not the first DeSantis initiative blocked on First Amendment grounds, citing as one example the governor’s bid to punish technology and social media companies.

Nikki Fried, Florida’s agriculture commissioner and candidate for Democratic nomination for governor, praised the ruling in a tweet.

“Freedom from uncomfortable truths is not freedom — it’s ignorance. Limiting speech of businesses and educators is not freedom — it’s censorship. Attacking diversity is not freedom — it’s oppression. I welcome Judge Walker’s ruling in defense of freedom of speech in our state.”

The ‘Upside Down’

That’s where the science fiction show comes in.

“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,” Walker wrote.

“Now, like the heroine in ‘Stranger Things,’ this court is once again asked to pull Florida back from the upside down.”

The law, referred to in the ruling by its initials, IFA, bars employers from conducting workplace trainings that allegedly promulgate eight disfavored concepts. For example, that:

  • “Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.”
  • “An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.”
  • “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.”

Walker concluded that, in addition to its constitutional flaws, the measure violates the Florida Civil Rights Act of 1992, patterned under Title VII of the Civil Rights Act of 1964. Both ban employment discrimination based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.

“In the end, defendants suggest that there is nothing to see here. They say the IFA does nothing more than ban race discrimination in employment. But to compare the diversity trainings plaintiffs wish to hold to true hostile work environments rings hollow. Worse still, it trivializes the freedom protected by Title VII and the FCRA to suggest that the two are the same,” he wrote.

Speech, not conduct

Walker rejected the state’s argument that the law restricts conduct, not speech — that is, forcing employees to attend training sessions. He reasoned that the law forbids only mandatory attendance at trainings endorsing the viewpoints that the law deems unacceptable — employers could require workers to read a book complaining about “woke” culture, for example, but not endorsing critical race theory.

“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,” Walker wrote.

“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,” he continued.

He elaborated in a footnote:

“The plaintiff companies intend the trainings to send a message about their values. And people would understand as much. Plaintiff companies incur significant costs to hold these trainings, not just the cost of paying someone to conduct them but also the cost in lost productivity from every employee halting work and attending. Given the high financial cost of holding a mandatory training, it is very likely that outsiders would interpret holding such trainings as sending a message about the company’s priorities.”

‘Captive audience’

Walker rejected the state’s argument that Title VII, the federal law banning workplace discrimination “with respect to … compensation, terms, conditions, or privileges of employment,” might pose an unconstitutional restriction on speech.

“That prohibition on conduct includes a bar on requiring people to work in a discriminatorily hostile or abusive environment. 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,” Walker wrote.

He cited the example of a white worker dressing in a gorilla suit to mock Black employees the day before Juneteenth. (It happened.)

“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.”

The state claimed the authority to prevent employers from “foisting speech that the state finds repugnant on a captive audience of employees.”

Walker respinded: “Not so. The First Amendment does not give the state license to censor speech because it finds it repugnant, no matter how captive the audience.

“And even assuming the IFA serves a compelling government interest — like prohibiting discrimination — it is not narrowly tailored. In large part, this is because the FCRA already prohibited much of what defendants claim the IFA aims to prohibit. For example, 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.”

Many people would object to the concept that “members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin,” Walker noted.

“Of course, the IFA bans much more: such as suggesting that white privilege exists … or that people should consider another person’s race or sex when interacting with them … . In other words, even assuming some concepts are proscribable — which they are not — the IFA still prohibits the endorsement of many widely-accepted ideas,” he wrote.

“In sum, the IFA sweeps up an enormous amount of protected speech to ban a sliver of offensive conduct that exists somewhere between the trainings plaintiffs wish to hold and what the FCRA already bars. It is, to borrow a phrase from defense counsel, self-evident. The IFA is not narrowly tailored. And so, the IFA violates the First Amendment.”

‘Exorcise these viewpoints’

The state argued it would be OK under the law to discuss critical race theory as an objective concept without endorsing it. (This is where Kant and Nietzsche come in, via a footnote.) But, “as a practical matter, an employer’s discussion of these concepts — no matter how ‘objective’ it may be — will invariably lend credence to them,” Walker responded.

“The IFA is designed to exorcise these viewpoints out of the marketplace of ideas — Gov. DeSantis went so far as to call it the STOP WOKE Act at a press conference with children waving anti-critical race theory signs. It thus comes as no surprise that permissible discussion of these concepts turns on ‘objectivity’ — an inherently vague term that fails to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited,” Walker wrote.

“Accordingly, as this ‘objectivity’ standard commands the entire statute, the IFA is impermissibly vague in violation of the Due Process Clause of the Fourteenth Amendment.”

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.