A radical attack on the First Amendment

Florida Governor Ron DeSantis (R) on July 22, 2022, in Tampa, Florida. (Photo by Joe Raedle/Getty Images)

There is a lot of discussion about the state of First Amendment rights and free speech in modern America. Much of this discussion is focused on "cancel culture" and allegations that "the left" is intolerant of divergent views. 

The New York Times summarized these concerns in a March editorial: "For all the tolerance and enlightenment that modern society claims, Americans are losing hold of a fundamental right as citizens of a free country: the right to speak their minds and voice their opinions in public without fear of being shamed or shunned."

There, of course, is no "right" to speak publicly "without fear of being shamed or shunned." Shaming and shunning are important forms of free speech. Still, if people become so fearful of condemnation that they routinely self-censor even mildly controversial opinions, that is a problem. The country makes progress through a lively and unfettered public discourse. 

Receiving disproportionate criticism on social media or getting a comedy show canceled at a private venue, however, is beyond the purview of the First Amendment. The First Amendment prohibits the government from making laws "abridging the freedom of speech." 

In Florida, Governor Ron DeSantis signed a law prohibiting private companies from speaking to their employees about certain topics that don't align with DeSantis' political views. The new law, called the STOP Woke Act, went into effect on July 1, 2022. 

Somehow, this radical attack on the First Amendment has garnered much less attention among free speech advocates than the nebulous concept of "cancel culture." But it has received more notice from some Florida businesses subject to the new law, which have sued to block its implementation. 

How the STOP Woke Act works

The STOP Woke Act amends Florida’s Civil Rights Act "to make it unlawful for Florida employers to require employees to undergo training or experience instruction that includes any of eight forbidden 'concepts' regarding race, sex, religion, or national origin." 

Prohibited topics include endorsing the concepts of white privilege or male privilege. Specifically, employers cannot conduct trainings that state an individual can be "privileged" or "oppressed" due to their "race, color, sex, or national origin." Further, trainings cannot suggest that anyone should "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." 

The law allows these concepts to be brought up if the employer remains neutral or opposes the concepts. It's only endorsing the concepts that are prohibited. In other words, an employer could tell employees that white privilege does not exist without violating the law. Only disagreeing with DeSantis is illegal.

Employees that are subjected to training that include such content without their consent can "bring an administrative action or civil lawsuit against an employer." The Florida Attorney General is also permitted to bring lawsuits against employers that violate the law. 

Honeyfund v. DeSantis

Honeyfund, an online wedding registry, and Primo Tampa, a local licensee of Ben & Jerry's ice cream, sued DeSantis and other state officials to block the law. This is the opening of their complaint:

This lawsuit challenges Florida’s use of state authority to stifle speech with which those in power disagree—a clear violation of the First Amendment of the United States Constitution. The defining feature of the American constitutional system of government is that the government cannot establish orthodoxy of thought, either by mandating certain beliefs or by prohibiting disfavored ideas. The State of Florida has blatantly violated these fundamental values of democracy, requiring swift and decisive action by this Court.

The plaintiffs state that the STOP Woke Act "reads more like the policy of an authoritarian regime than a law passed in our American democracy" and "aims to forward the government’s preferred narrative of history and society and to render illegal speech that challenges that narrative."

While the law effectively prohibits employers from saying that systemic racial and gender discrimination exist, the plaintiffs describe a mountain of evidence to the contrary:

Black Americans as a group suffer higher rates of unemployment and homelessness, as well as lower rates of college education, average wages, and representation in corporate management and leadership positions; women on average continue to earn only a fraction of what their male counterparts earn, and they remain significantly underrepresented in the upper echelons of business; and groups at the intersection of those characteristics face even greater challenges.

While "people good faith may disagree about why such inequalities continue to exist, or what steps are most likely to address them, or even whether some solutions might entail other costs that counterbalance the benefits, there is no doubt that the First Amendment protects the right of all citizens to openly engage in that debate and to espouse their own views about these inequalities and the best way to tackle them." 

For better or worse, the Supreme Court has ruled that corporations have First Amendment rights, just like people. 

The plaintiffs believe that "people of color, women, and LGBTQ+ individuals face professional barriers stemming from unconscious and historical bias." They argue that "only by acknowledging such unconscious bias and privilege on the basis of race, gender, or sexual orientation can we begin the process of counteracting those forces." Using empirical evidence, the plaintiffs argue that addressing systemic discrimination head-on can improve profitability and employee recruitment.

Fundamentally, the plaintiffs argue, the "First Amendment protects the rights of those on all sides of this significant public discourse to participate and to advocate for their preferred solutions. The government may not silence one side of the discourse by labeling it unlawful, as the State of Florida has attempted to do in the Stop WOKE Act."

DeSantis' defense

Lawyers for the state of Florida argue the provisions of the STOP Woke Act at issue do "not regulate speech at all, and they thus are not subject to First Amendment analysis." Rather, the defendants state, "the employment provisions regulate pure conduct: an employer’s non-expressive, commercial action of imposing 'a condition of employment' that requires its employees to attend certain instruction or training activities."

The problem with this argument, of course, is that the STOP Woke Act does not ban all required instruction or training. Instead, it only bans certain kinds of required instruction or training based on the content of that instruction. So the limitation is on the business's speech, not conduct. 

Florida acknowledges the content of these trainings are speech and that businesses like Honeyfund and Primo Tampa have First Amendment rights. But they claim these rights aren't violated because the law permits them to stand in an empty room and say whatever they want. "[S]peech remains as free and unrestrained as it was before the passage of the Act." Florida argues. "[A]ll the Act says is that employers cannot engage in the action of forcing their employees to listen to it."

Florida repeatedly compares the STOP Woke Act to a law requiring a business to take down a "Whites Only" signs. But if the STOP Woke Act had been in effect during the time when Whites Only signs were common, the law would have prohibited businesses from conducting mandatory trainings noting that these signs were evidence of systemic racism.

What's next

On June 30, Honeyfund and Primo Tampa filed a motion for a preliminary injunction, arguing that they are likely to succeed on the merits and the STOP Woke Act will irreparably harm their interests. If they are successful, the law would be enjoined while the litigation continues. 

Florida, of course, has opposed the motion. The court will consider the preliminary injunction issue in a hearing scheduled for August 8.