Florida’s Unconstitutional ‘Stop WOKE’ Act Blocked By The 11th Circuit Appeals Court

Florida legislators — urged on by failed presidential candidate and “governor for life” hopeful Ron DeSantis — have passed plenty of unconstitutional laws in hopes of marginalizing or silencing anyone who isn’t straight, white, or voting straight-ticket Republican.

Much like it’s true anyone can break any law they like until they get caught, legislators can pass whatever horseshit legislation gets ginned up by the bigots in their midst. The head of state can even scrawl his approval on the dotted line. But, sooner or later, the unconstitutional hopes and dreams of the worst members of this government body will be derailed by the judicial branch of America’s checks-and-balances system.

Legislators are free to imagine they can crush spirits and the constitutional rights that protect them. But the reality of the situation is that courts are rarely willing to offer their support for these jackboot-wearing fantasies.

Florida’s legislators and the man sitting at the top of the state org chart are being told this. Repeatedly. Not that anyone appears to be learning anything from these experiences. Legislators are willing to blow tax bucks on laws that can’t be enforced and Ron DeSantis is more than willing to offer his approval of these wastes of time and money.

The so-called “Stop WOKE” Act made its way through the legislature, landed on Ron’s desk, and he signed it into law. Well, “law.” It can’t be enforced so it’s really not a law in the commonly accepted sense of the word.

The law was blocked by a federal court in August 2022. In November 2022, the law was blocked again by the same federal court in a case featuring different plaintiffs. In that decision, the court called the law “positively dystopian” while quoting from George Orwell’s 1984.

“It was a bright cold day in April, and the clocks were striking thirteen,” 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.” To confront certain viewpoints that offend the powers that be, the State of Florida passed the so-called “Stop W.O.K.E.” Act in 2022—redubbed (in line with the State’s doublespeak) the “Individual Freedom Act.” The law officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints.

Both injunctions were appealed. The November 2022 was swiftly returned to the lower court by the Eleventh Circuit Appeals Court, which refused to lift the injunction while the state wasted its time arguing against its residents’ First Amendment rights. It also told the state that it would not consider any motion for reconsideration an “emergency” request requiring its immediate attention.

So, a bit of time has passed, given that the state was forbidden from pretending it would be irreparably harmed if it was unable to enforce a blatantly unconstitutional law.

This decision [PDF] by the Appeals Court deals with the state’s appeals of the August 2022 injunction. What’s said here applies directly to the second lawsuit, so no one should expect anything different to happen once that appeal is addressed by the Eleventh Circuit Appeals Court.

The opening paragraph makes it clear where this is headed, with the Appeals Court citing the right the Florida legislature seems to be intent on violating repeatedly.

This is not the first era in which Americans have held widely divergent views on important areas of morality, ethics, law, and public policy. And it is not the first time that these disagreements have seemed so important, and their airing so dangerous, that something had to be done. But now, as before, the First Amendment keeps the government from putting its thumb on the scale.

The second paragraph exposes the fatal constitutional flaw in this law — a rights violation the state openly admits it is engaging in, right before it tries to pretend conduct and speech are completely separate things, even in the context of a law that seeks to restrict speech by restricting conduct.

The State of Florida seeks to bar employers from holding mandatory meetings for their employees if those meetings endorse viewpoints the state finds offensive. But meetings on those same topics are allowed if speakers endorse viewpoints the state agrees with, or at least does not object to. This law, as Florida concedes, draws its distinctions based on viewpoint—the most pernicious of dividing lines under the First Amendment. But the state insists that ordinary First Amendment review does not apply because the law restricts conduct, not speech.

It’s such an obviously wrong argument, the Appeals Court wastes no time rejecting it before the end of the third paragraph of the opinion.

We cannot agree, and we reject 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.

There’s no way around this for the state, no matter how it chooses to portray its viewpoint discrimination.

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.

The Appeals Court is not amused. It seems more gobsmacked than anything that the state — one of 50 existing under the same Constitution — would make such a bold argument that’s so obviously wrong it hardly seems worth spending 22 pages on.

[The state] says that even if speech defines the contours of the prohibition, so long as the resulting burden is on the conduct, that conduct is all the state is regulating. That, in turn, means the law does not regulate speech. Remarkable. Under Florida’s proposed standard, a government could ban riding on a parade float if it did not agree with the message on the banner. The government could ban pulling chairs into a circle for book clubs discussing disfavored books. And so on. The First Amendment is not so easily neutered.

The law stays blocked. The injunction that almost immediately greeted its enactment remains in place. And since it’s obvious the state has no real defense to offer for this law, there’s little reason to believe the outcome will be any different when the second lawsuit returns to this court.