Florida court bars enforcement of ‘Stop WOKE Act’

By Anne Sherry, J.D.

In an effort to “pull Florida back from the upside down,” a federal court in the state enjoined enforcement of portions of the Individual Freedom Act that would bar employers from conducting mandatory trainings and other employee activities that espouse what defendant Ron DeSantis has characterized as a “woke” viewpoint. The Act’s specific prohibitions on trainings that endorse concepts such as systemic racism, white privilege, and intersectionality constitute viewpoint-based restrictions that triggered strict scrutiny review. The state has no compelling interest in censoring speech it finds “repugnant,” the court wrote, and the First Amendment does not allow remedying unwanted speech with enforced silence (Honeyfund.com, Inc. v. DeSantis, August 18, 2022, Walker, M.).

In April, Florida Governor Ron DeSantis signed the Act into law, calling it “the first [legislation] of its kind in the nation to take on both corporate wokeness and Critical Race Theory in schools in one act.” The law, which became effective July 1, provides that it is an unlawful employment practice to require employees to attend any activity, including trainings, that promote any of eight concepts:

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.

Any of these concepts can come into play in corporate diversity training. In particular, a common element of diversity, equity and inclusion (DEI) trainings is that all people carry unconscious or implicit bias against members of other groups. The plaintiffs are two employers that had planned to mandate DEI trainings and two consultants that provide such trainings. They challenged the law and asked the court for an injunction while that lawsuit moves forward. The court granted the injunction as to all defendants except Governor DeSantis, finding that the plaintiffs had standing and were likely to succeed on the merits of their case.

Act regulates speech. The court rejected the defendants’ claims that the Act restricts conduct, not speech. The law does not ban all mandatory employee trainings or even those merely addressing certain concepts. Instead, it prohibits trainings that endorse the eight prohibited concepts. Under the Act, “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 only way to determine if a mandatory activity is barred is to look at the viewpoint expressed at that activity, so plainly, the law regulates speech.

Even assuming the Act burdens speech, that is only incidental to the permissible regulation of conduct, the defendants argued. But the court wrote that unlike some prohibitions that can be understood without reference to speech, the Act cannot be understood without reference to the content underlying the prohibited conduct. The court also rejected the defendants’ “captive audience” argument as to why the Act survives constitutional scrutiny. The defendants had conceded that the Supreme Court and Eleventh Circuit have never applied the captive audience doctrine in the employment context, much less to private employers. Even if it applies, strict scrutiny still governs because the Act targets only those viewpoints with which the state disagrees: “In short, the IFA does not target trainings because they are mandatory; the IFA targets trainings because of the speech delivered at them.”

No compelling interest. As for that strict-scrutiny analysis, the court found that the state has no compelling interest in, as the defendants had argued, preventing employers from “foisting speech that the State finds repugnant on a captive audience of employees.” The state has no license to censor speech because it finds it “repugnant,” and even if the Act served a compelling government interest of prohibiting discrimination, it is not narrowly tailored to that interest. For example, if a training session is so hostile to white employees that it creates a hostile work environment, that is already illegal. The remedy for “repugnant” speech is more speech, not silence, the court 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.”

Unconstitutional vagueness. As an independent rationale, the court also agreed with the plaintiffs that the statutory provisions are unconstitutionally vague. The first concept, for example, is “mired in obscurity” due mainly to confusion regarding the meaning of “morally superior,” while the fourth is “bordering on unintelligible” by employing a triple negative. The fact that employee trainings are allowed to discuss these topics “objectively” does not help matters, particularly given the context of the Act’s goal of eliminating the topics from discourse. However, the court found that the statute is not constitutionally overbroad because overbreadth is judged in relation to the statute’s plainly legitimate sweep, and the Act has no legitimate sweep.

Because the plaintiffs were likely to succeed on the merits, and would suffer irreparable injury if the statute were enforceable in the meantime, the court issued a preliminary injunction.

The case is No. 22-cv-00227.