What federal judges have said about Florida’s ‘Stop Woke Act’

By Chandelis Duster and Nicquel Terry Ellis, CNN

(CNN) — Florida Gov. Ron DeSantis is exploring options for his office to appeal a federal court’s decision to block part of the state’s Individual Freedom Act, also known as the “Stop WOKE Act.”

In a ruling filed Monday, the 11th US Circuit Court of Appeals upheld a lower court’s ruling that parts of the legislation infringe on an employer’s free speech rights.

The law was one of several bills the Republican governor signed in 2022 as part of his war on “woke ideology.”

“Yesterday, the United States Court of Appeals for the Eleventh Circuit held that companies have a right to indoctrinate their employees with racist and discriminatory ideologies,” DeSantis’ office said in a statement on Tuesday.

“We disagree with the Court’s opinion that employers can require employees to be taught — as a condition of employment — that one race is morally superior to another race. The First Amendment protects no such thing, and the State of Florida should have every right to protect Floridians from racially hostile workplaces. We are reviewing all options on appeal going forward.”

In August 2022, US District Court Judge Mark E. Walker issued an injunction that blocked Florida from enforcing parts of the law prohibiting mandatory workplace activities and trainings that suggest a person is privileged or oppressed based on their race, color, sex or national origin.

Walker wrote in the ruling that the Stop WOKE Act, “discriminates on the basis of viewpoint in violation of the First Amendment and is impermissibly vague in violation of the Fourteenth Amendment.”

On Monday, a panel of three appeals court judges upheld Walker’s decision.

Eleventh Circuit Appeals Judge Britt Grant, who was appointed by former President Donald Trump, issued the opinion, writing that the court rejects “this latest attempt to control speech by recharacterizing it as conduct.”

“Florida may be exactly right about the nature of the ideas it targets. Or it may not. Either way, the merits of these views will be decided in the clanging marketplace of ideas rather than a codebook or a courtroom,” Grant wrote. Here’s what federal judges have said about Florida’s Stop WOKE Act.

A ‘parallel dimension’

In the opening lines of his August 2022 decision, Judge Walker compares Florida’s interpretation of the First Amendment to the “parallel dimension” in the Netflix TV series, “Stranger Things” – The Upside Down.

“Recently, Florida has seemed like a First Amendment upside down,” Walker wrote in the opinion, adding that typically the First Amendment prevents the state from limiting, or “burdening,” free speech.  

“But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely. 
 
“Now, like the heroine in Stranger Things, this Court is once again asked to pull Florida back from the upside down,” Walker, who was appointed by former President Barack Obama, wrote.

Walker ruled that “the First Amendment does not give the state license to censor speech because it finds it ‘repugnant,’ no matter how captive the audience.”  

Judge Grant, who authored the 11th Circuit’s opinion on behalf of the appellate panel, also found the Florida law infringes on First Amendment rights.

“By limiting its restrictions to a list of ideas designated as offensive, the Act targets speech based on its content,” Grant wrote. “And by barring only speech that endorses any of those ideas, it penalizes certain viewpoints — the greatest First Amendment sin.”

“The answer is clear: Florida’s law exceeds the bounds of the First Amendment. No matter how controversial the ideas, allowing the government to set the terms of the debate is poison, not antidote,” the opinion said.

The right to free expression

Attorneys defending the Stop WOKE Act have drawn comparisons between the law and Title VII of the Civil Rights Act of 1964, which protects against workplace discrimination.

In Monday’s ruling, Grant described that argument as “a last-ditch effort.”

“According to Florida, because the Individual Freedom Act, like Title VII, seeks to regulate discrimination, the two statutes rise and fall together—if one is unconstitutional, the other must be too,” Grant wrote.

“We disagree. Having similar asserted purposes does not make the two laws the same.”

The ruling emphasized that the Florida law was problematic because restricting speech was the point of the law, unlike Title VII, which was not directed at restricting speech.

The judges also noted the Stop WOKE Act only protects the speech and concepts that are approved by Florida.

“The only way to discern which mandatory trainings are prohibited is to find out whether the speaker disagrees with Florida. That is a classic—and disallowed—regulation of speech,” Grant wrote.  

“Banning speech on a wide variety of political topics is bad; banning speech on a wide variety of political viewpoints is worse. A government’s desire to protect the ears of its residents ‘is not enough to overcome the right to freedom of expression,’” Grant said.

‘Muzzling its opponents’

Grant also wrote that Florida’s law would prohibit free speech, “even when no one listening finds it offensive.”

“That is to say, it keeps both willing and unwilling listeners from hearing certain perspectives—for every one person who finds these viewpoints offensive, there may be another who welcomes them.”

Walker also noted in his August 2022 ruling, “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,” he said.

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