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

A federal judge invoked Stranger Things, Immanuel Kant, and Friedrich Nietzsche in dismantling the states 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.

Floridas 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.

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 whats objectionable are too vague, even unintelligible.

Walker ruled in a complaint filed by Honeyfund.com Inc., a technology company in Clearwater with 16 employees, and Team Primo, a Black-owned Ben & Jerrys 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 doesnt apply to the governor because he doesnt directly enforce the law.

The decision doesnt discuss the laws application to schools, since the plaintiffs didnt raise that matter.

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

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

Freedom from uncomfortable truths is not freedom its ignorance. Limiting speech of businesses and educators is not freedom its censorship. Attacking diversity is not freedom its oppression. I welcome Judge Walkers ruling in defense of freedom of speech in our state.

Thats 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:

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.

Walker rejected the states 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 companys priorities.

Walker rejected the states 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 persons 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.

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 employers 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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DeSantis loses another First Amendment fight, this one over 'Stop Woke Act' - Florida Phoenix