Why Does Florida’s ‘Stop Woke Act’ Violate the First Amendment? Let us Count the Ways.

Florida’s ‘Stop Woke Act’ is like laws passed frequently in many jurisdictions. It’s more about sending a political message than creating workable, practical solutions that will pass court scrutiny. As the decision points out, forbidding employers to talk about one thing while letting them talk about how terrible that thing is won’t cut it constitutionally. But that’s only one issue that dragged this law down.

Chief U.S. District Judge Mark Walker of the Northern District of Florida issued a temporary injunction in August against enforcing sections of the law related to the workplace. Judge Walker found the law illegally infringed on employers’ First Amendment free speech rights and was also unconstitutional because it was impermissibly vague.

What Does the First Amendment Protect?

It states in part, “Congress shall make no law…abridging the freedom of speech…” It protects us from the government punishing us for our opinions or communicating. No constitutional right is without limits, and this case concerns whether Florida’s law is a permissible regulation of speech.

Government can limit speech to some extent, depending on the circumstances. The Supreme Court has established tests to determine if the government’s actions are justified. They generally cover content and viewpoint-based regulation.

What is Florida’s ‘Stop Woke Act’ aka the ‘Individual Freedom Act’ (IFA)?

It’s a Florida law amending the state’s employment anti-discrimination statute. It expands the definition of unlawful employment practice to include requiring employees to attend training or any “required activity” that promotes any of eight concepts the Florida legislature has deemed improper:

(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.

The evil the legislation is supposedly trying to prevent is the forced “woke indoctrination” of Florida employees (the law also covers what schools and colleges can teach, but that’s the subject of a different lawsuit).

What’s All the Fuss About?

Judge Walker swatted away the defendant’s claims that the law doesn’t regulate speech. The decision states:

“...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…As Defendants’ counsel candidly conceded, the IFA’s rule cannot be understood without reference to the underlying speech’s content.”

The state argued the law is constitutional because employees are a ‘captive audience’ when meetings and trainings are required. The court disagreed because past cases concerning forced exposure to certain communications banned all such communications. The IFA only prohibits one viewpoint.

The State of Florida Lays Out How to Legally Expose Employees to Wokeness

If eventually the state law is found constitutional, the state’s arguments and statute’s plain language show a huge loophole for employers. The state of Florida doesn’t want employees to be required or forced to be exposed to or endorse certain positions on race. So don’t make it “a condition of employment.”

An employer could condition future promotions, raises, or transfers on learning about or doing certain things. Even approving personal, sick, or vacation time off could depend on what a “woke” employer wants its employees to hear or do. As long as a term or condition of employment isn’t required by law, it’s up to the employer to grant it or not.

In addition to sticks, an employer could use carrots. Those attending meetings, training, or engaging in forbidden topics could be rewarded with gift cards, bonuses, or be included in drawings for prizes.

As long as the employer doesn’t fire, lay off, or illegally take something away from an employee, failure to come to meetings to discuss forbidden topics arguably isn’t “a condition of employment.” Non-participating employees just won’t get good stuff the employer has discretion to give or not.

What Standard Was the IFA Held To?

Since the court found the IFA to be a government-imposed, viewpoint-based regulation on speech, to be considered constitutional, it must pass what’s called “strict scrutiny.”

‘Laws that discriminate based on content are antithetical to the First Amendment. Thus, under strict scrutiny, content-based laws like the IFA “are presumptively unconstitutional.”...Such laws “may be justified only if the government proves that they are narrowly tailored to serve compelling state interests…Cases where this standard is met are few and far between.”...And the IFA is no unicorn.’

Florida’s claimed compelling state interest is preventing employees from being forcibly exposed to speech the state finds “repugnant.”

No Compelling State Interest is Served, and the Law Isn’t Narrowly Tailored

The court states Florida can’t censor or silence “repugnant” language, no matter how captive the audience. The IFA also isn’t narrowly tailored to limit harming free speech rights. Existing Florida anti-discrimination law prohibits much of what the IFA wants to end. If diversity and inclusion training language is so hostile and offensive it creates a hostile work environment for a particular racial group, it would violate current anti-discrimination laws.

Florida stressed the importance of preventing employers from discussing the first banned “concept” – that people of one race, color, sex, or national origin are “morally superior” to others. That’s all well and good, but the IFA seeks to ban far more than that.

Other topics that can get an employer include suggesting that white privilege exists and that people should consider another person’s race or sex when interacting with them

The court found that the law, “…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 (state law) already bars.”

‘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.”…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…”

What’s Next?

A motion for a temporary injunction was decided, not the case’s final outcome. Florida will probably appeal the decision to the US Court of Appeals for the Eleventh Circuit, which covers Florida. No matter how upcoming appeals are decided, unless the IFA’s drastically changed, whether the law’s constitutional or not will probably be determined at a trial.

Rodney Warner is a freelance website content writer who writes mostly for law firms. He's a former attorney, paralegal, and reporter. www.rodneywarner.net?