Florida’s Stop WOKE Act Shut Down (Again) By Eleventh Circuit Appeals Court

from the stopping-the-stoppers dept

Florida Republicans’ bigoted little piece of speech policing — the former “Stop WOKE Act” — has already been terminated multiple times by federal courts. Two lawsuits with two sets of plaintiffs have generated the same results: a ruling declaring the law unconstitutional and an injunction blocking the state from enforcing it.

The law aims to directly regulate speech in classrooms, allowing the government to punish teachers and administrators from engaging in any speech the Florida GOP doesn’t agree with. In practice, this means eliminating discussions about racism, equitable treatment, or anything related to LGBTQ+ issues.

The two lawsuits have generated some pretty stark paragraphs from presiding judges. Both take their cues from pop culture. Noting the cognitive dissonance of state lawmaking, the court said this in 2022:

In the popular television series Stranger Things, the “upside down” describes a parallel dimension containing a distorted version of our world. See Stranger Things (Netflix 2022). 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. 

The same court said this when the second lawsuit against the Stop WOKE law crossed its desk:

“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. Defendants argue that, under this Act, professors enjoy “academic freedom” so long as they express only those viewpoints of which the State approves. This is positively dystopian.

The state appealed both decisions. The Eleventh Circuit Appeals Court upheld the injunction in March 2023. The state continued to assault the court with motions to undo this injunction, prompting the Eleventh Circuit to issue this additional order:

The Clerk is DIRECTED to treat any motion for reconsideration of this order as a non-emergency matter.

Forced to wait its turn, Ron DeSantis and his MAGA buddies have had to wait more than three years just to find out they still won’t be able to enforce this blatantly unconstitutional law. The state’s lawyers will read the whole thing looking for ways to argue this differently if (or when) the US Supreme Court decides to hear their appeal.

But anyone wanting to know how this turns out for Florida’s public service bigots won’t have to dip too far into the 85-page ruling. By the middle of the fourth page, you’ll know what you need to know. From the decision [PDF]:

When several groups of professors challenged Florida’s new restrictions, the State cast about for an existing case or doctrine that could support its speech ban in the university setting. Finding none, it tried to marry public-employee speech cases with government speech doctrine, resulting in a new rule: if the government pays a professor’s salary, it has total control over her classroom speech.

That is not a blessed union. Florida’s salary-for-speech rule is a breathtaking assertion of power to ban unpopular ideas from public discourse in the very places the State’s own statutes recognize as centers of inquiry—classrooms where students are trusted to puzzle through ideas that are good and bad, easy and hard, ideally getting ever closer to the truth. This new rule also runs headlong into the Supreme Court’s repeated, if imprecise, endorsements of academic freedom. If the First Amendment offers any boundary of protection at all for public university classrooms, this statute crosses it.

The injunction stays in place, presumably forever. While there are certainly some members of the Supreme Court who would love to tie their precedent and ethics into knots just to block speech they personally don’t like, this doesn’t appear to be the case they’d choose since it would likely generate precedent that might work against the bigots in the Supreme Court when they go to bat for bigots in the White House.

The appeals court has already blocked the other part of the law — the clauses attempting to regulate speech in private workplaces by forbidding mandatory meetings that promoted views the GOP doesn’t agree with. The last ditch attempt to claim the government can regulate speech in college classrooms doesn’t fare any better, even if it’s not quite as clear cut in terms of constitutional violations as telling private companies what they can and can’t say.

Claiming that all speech by government employees is “government speech” is a non-starter. The state couldn’t find precedent to support its novel take on the First Amendment. And the few odds and ends it threw at the judicial wall in hopes of seeing something stick failed as well.

More credibly, the State explains that it also seeks to protect its “most cherished ideals.” But that justification fails, too. Though the government has plenty of ways to promote its own viewpoint, puppeteering every university professor in the state is not one of them.

The court spends 50 pages dismantling each and every one of the state’s arguments, citation by citation. There can be no doubt the law is unconstitutional, not that it matters to the state, which has already announced it will be appealing the ruling. But this is censorship that can’t even be bothered to pretend it’s anything but the very thing it claims it is opposed to. “Individual Freedom Act” (as it was renamed), my ass.

Florida seeks to strip public university professors—and by extension their students—of the ability to fully engage with ideas that are, for better or for worse, very popular in some academic circles. The State asks us to consider its rules a means of targeting discrimination. But hearing an idea you disagree with is not discrimination; it is an opportunity to come up with a better idea, or maybe even change your mind.

There’s a dissent that runs nearly as long as the opinion. Written by Judge Barbara Lagoa (someone with a history of anti-trans rulings), it’s 30+ pages of wasted time. To paraphrase: none of these plaintiffs should have been granted standing, much less relief and also: [bunch of Justice Alito quotes].

Doesn’t really matter, since it’s the dissent but I guarantee if anyone’s going to start polling for an en banc rehearing, it’s going by Judge Lagoa.

Suck it, DeSantis. Until that happens (if it ever will), your stupid hateful law is as dead as the eyes of your sycophants.

Filed Under: 11th circuit appeals court, 1st amendment, florida, free speech, ron desantis, stop woke act, woke