‘Greatest first amendment sin’: appeals court condemns Florida’s Stop Woke Act
In countless campaign appearances during his futile pursuit of the Republican presidential nomination, Florida’s rightwing governor, Ron DeSantis, celebrated his state as “the place woke goes to die”.
Now, by virtue of a federal appeals court ruling that skewers a centerpiece of his anti-diversity and inclusion agenda, Florida resembles a place where anti-woke legislation goes to die.
In a scathing ruling released late on Monday, a three-judge panel of the 11th circuit appeals court in Atlanta blasted DeSantis’s 2022 Stop Woke Act – which banned employers from providing mandatory workplace diversity training, or from teaching that any person is inherently racist or sexist – as “the greatest first amendment sin”.
The judges upheld a lower court’s ruling that the law violated employers’ constitutional rights to freedom of speech and expression. They were also critical of DeSantis for “exceeding the bounds” of the US constitution by imposing political ideology through legislation.
The panel said the state could not be selective by only banning discussion of particular concepts it found “offensive” while allowing others.
“Florida may be exactly right about the nature of the ideas it targets. Or it may not,” Judge Britt Grant, an appointee of Donald Trump, wrote in the 22-page opinion. “Either way, the merits of these views will be decided in the clanging marketplace of ideas rather than a codebook or a courtroom.
“We reject this latest attempt to control speech by recharacterizing it as conduct. By limiting its restrictions to a list of ideas designated as offensive, the act targets speech based on its content. And by barring only speech that endorses any of those ideas, it penalizes certain viewpoints – the greatest first amendment sin.”
The ruling, which follows a legal challenge from several small companies in Florida – including the online wedding registry site Honeyfund, and the owners of a Ben & Jerry franchise – was targeted at the workplace provisions of the wider-ranging Stop Woke (Wrongs to Our Kids and Employees) Act, also known as the Individual Freedoms Act.
It reinforced an August 2022 decision by district court judge Mark Walker in Tallahassee that the act unconstitutionally “attacks ideas, not conduct”, and attempted a wide ban on free
speech.
In a separate ruling three months later, Walker halted part of the Stop Woke Act limiting what Florida’s colleges and universities could teach about racism and sexism.
Calling the law “positively dystopian”, Walker invoked George Orwell’s novel Nineteen Eighty-Four in his injunction: “‘It was a bright cold day in April, and the clocks were striking 13,’ and the powers in charge of Florida’s public university system have declared the state has unfettered authority to muzzle its professors in the name of ‘freedom,’” he wrote.
Free speech advocates welcomed the appeals court ruling. “Today is a good day for the first amendment and the ability of American businesses to speak freely,” Shalini Goel Agarwal, an attorney at the advocacy group Protect Democracy, acting for the plaintiffs, said in a statement.
A spokesperson for DeSantis’s office said the governor strongly disagreed with the ruling, and was “reviewing all options on appeal going forward”.
“The US court of appeals for the 11th circuit held that companies have a right to indoctrinate their employees with racist and discriminatory ideologies,” the spokesperson said in a statement.
“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.”
When he signed the law in April 2022, DeSantis said his intention was to protect individual freedoms of Florida’s citizens. “We will not let the farleft woke agenda take over our schools and workplaces. There is no place for indoctrination or discrimination in Florida,” he said at the time.
On Friday, in compliance with other “anti-woke” legislation the governor has signed banning institutions of higher education using tax dollars to fund diversity, equity and inclusion programs, the University of Florida terminated all DEI positions.
It was the latest development in what has become a nationwide crusade by the Republican party and rightwing allies to tackle perceived wokeness – loosely defined as a raised awareness of social injustices such as racism – by liberal adversaries.
The messaging, however, fell on deaf ears during DeSantis’s failed challenge for the Republican presidential nomination, which he had staked almost entirely on anti-wokeness.
Even the three appeals court judges, two of which are Trump appointees, appeared to acknowledge that people are growing weary of politicians with extremist agendas. “Intellectual and cultural tumult do not last forever, and our Constitution is unique in its commitment to letting the people, rather than the government, find the right equilibrium,” they wrote.