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Wednesday, March 6, 2024

11th Circuit Stops Florida's "Stop Woke" Law Based on 1st Amendment

I know. I know. I keep saying there's no such thing as free speech at work. But while you workers don't have First Amendment protection in private workplaces, private employers do. Because corporations are "people" too. The distinction: the First Amendment prohibits restrictions on speech by government, not by individuals or corporations.

Confused yet? Well, I'm here specifically to discuss Florida's "Stop Woke" law* that said employers couldn't have trainings about not engaging in racism and discrimination in the workplace. The 11th Circuit just held that "Stop Woke" is a clearly illegal restriction on corporate free speech.

Here are some key excerpts from the opinion:

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.

The Act says employers cannot subject “any individual, as a condition of employment,” to “training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels” a certain set of beliefs.  Id.  It goes on to list the rejected ideas, all of which relate to race, color, sex, or national origin

Discussion of these topics, however, is not completely barred—the law prohibits requiring attendance only for sessions endorsing them.  Id. § 760.10(8)(b).  Employers can still require employees to attend sessions that reject these ideas or present them in an “objective manner without endorsement of the concepts.” 

 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.  Florida concedes as much, even admitting that the Act rejects certain viewpoints. 

Florida has no compelling interest in creating a per se rule that some speech, regardless of its context or the effect it has on the listener, is offensive and discriminatory.  “It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” 

No matter how hard Florida tries to get around it, “viewpoint discrimination is inherent in the design and structure of this Act.”  NIFLA, 585 U.S. at 779 (Kennedy, J., concurring).  Given our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” the answer is clear: Florida’s law exceeds the bounds of the First Amendment.  New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).  No matter how controversial the ideas, allowing the government to set the terms of the debate is poison, not antidote.

* I've written about this law before, here and here.

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I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.