Over the last few years, Florida Governor Ron DeSantis has positioned himself as an anti-lockdown champion and anti-woke warrior. From “Don’t Fauci My Florida” to “The state of Florida is where woke goes to die,” this rhetoric is pretty darn appealing to many of us on the Right, myself included, who have been sickened by pandemic-era authoritarianism and the new intolerant illiberalism of the “social justice” Left.
But when it comes to DeSantis’s war on wokeness, there’s a big problem he keeps running into: The First Amendment. On August 18, a federal judge blocked part of DeSantis’s “Stop WOKE Act” from taking effect, ruling that a First Amendment lawsuit against a key part of the law is likely to succeed and halting its implementation in the interim.
Here’s the background.
What is the “Stop WOKE Act”?
In April 2022, Governor DeSantis signed the “Individual Freedom Act,” which has come to be known as the “Stop WOKE Act,” into law. This law prohibits schools and private employers from “subjecting an employee or student to a required activity that promotes, advances, or compels individuals to believe discriminatory concepts.” According to the governor’s office, it defines “discriminatory concepts” to include:
- That members of one race, color, national origin or sex are morally superior to members of another race, color, national origin or sex.
- A person by virtue of their race or sex, is inherently racist, sexist or oppressive.
- A person’s moral character or status as privileged or oppressed is determined by race, color, national origin or sex.
- A person, by virtue of their race, color, national origin or sex should be discriminated against or receive adverse treatment to achieve diversity, equity or inclusion.
“No one should be instructed to feel as if they are not equal or shamed because of their race,” DeSantis said when he signed the legislation. “In Florida, we will not let the far-left woke agenda take over our schools and workplaces. There is no place for indoctrination or discrimination in Florida.”
The Legal Challenge
The Stop WOKE Act was challenged in court by employers who wanted to provide mandatory employee trainings that ran afoul of this law’s restrictions and by would-be providers of such training. They argued that the law violated their First Amendment rights—and a judge found their claim likely enough to succeed that he issued a partial halt on the bill’s enactment as applied to private employers. (The legislation also affects schools, but both the judge’s ruling and this article focus on its provisions targeting private businesses).
Federal Judge Mark Walker ruled that “the challenged provision of the Act is a naked viewpoint-based regulation on speech that does not pass strict scrutiny.”
Governor DeSantis’s Defense
I reached out to Governor DeSantis’s office about this article and invited them to explain why they don’t think their legislation violates the First Amendment.
“The Stop WOKE Act doesn’t prohibit speech or ideas from free exchange, but actually protects the open exchange of ideas,” DeSantis Press Secretary Bryan Griffin told me.
“The concepts cannot be forced on employees as a condition of employment, etc. meaning there is no choice but for the employee to be subjected to these concepts,” he insisted. “Though we greatly disagree with the concepts above, no employer, etc. is prohibited from holding voluntary workshops, seminars, or trainings on them. Nor is the employer prohibited from communicating these concepts to the public. The employer simply cannot subject employees to mandatory training on these concepts where the employer attempts to impose the concepts on the employee.”
Griffin also adds that this isn’t a gag law, because “the law does not prohibit training where the concepts are merely discussed, as opposed to espoused and inculcated. The law specifically provides that it ‘may not be construed to prohibit discussion of the concepts listed therein as part of a course of training or instruction, provided such training or instruction is given in an objective manner without endorsement of the concepts.’”
Why DeSantis is Wrong
Ultimately, this argument isn’t persuasive. The legislation still seemingly violates the First Amendment, for a number of reasons well-articulated by Judge Walker.
“To start—though trainings are admittedly at the center of this case—the [Stop WOKE Act] does far more than ban mandatory trainings,” Walker writes in his opinion. “It bars ‘any . . . required activity’ at which the eight forbidden ‘concepts’ are discussed and endorsed. Conceivably, that includes trainings, phone calls, assignments, discussions—anything that is required and endorses the concepts.”
“More to the point, the [Stop WOKE Act] does not ban all mandatory employee trainings,” the judge continues. “Nor does it ban mandatory trainings addressing certain concepts. No, the [Stop WOKE Act] only prohibits trainings that endorse the covered concepts. Indeed, the [Stop WOKE Act] grants employers free rein to hold mandatory trainings addressing any of the eight concepts so long as those trainings condemn or take no position on those concepts.”
The judge offers an illustrative example:
“Because the [Stop WOKE Act] covers any required activity, an employer could require every employee to read ‘Woke, Inc., Inside Corporate America’s Social Justice Scam’ but could not require employees to read ‘The Color of Law.’ Worse still, 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.”
Simply put, the law prohibits employers from exercising their right to freedom of association based on inherently political arguments and ideas—but only if they take the “wrong” position on them.
For example, the mainstream—if eminently debatable—left-of-center positions on things like “white privilege” or the necessity of Affirmative Action would seem to clearly violate the restrictions laid out in the law. (See the definition of “discriminatory concepts” at the beginning of the article). But required activities arguing against these viewpoints would be totally fine.
“The law… singles out speech that advocates particular viewpoints on disputed issues, while giving more favorable treatment to speech that supports the opposite positions,” law professor Ilya Somin concluded. “Such targeting is a blatant violation of the First Amendment.”
A state government cannot, under the First Amendment, favor some ideas and punish others. (Yes, even when I agree with them!)
Is it Just Like Civil Rights Law?
DeSantis’s team makes another argument that Somin calls the “strongest possible defense” of their legislation.
“The law is designed to prohibit forced indoctrination in these concepts because doing so is discriminatory – they themselves are racist,” Griffin told me. “This is racial harassment, which is likewise prohibited both by the Florida Civil Rights Act and Title VII.”
“The law simply provides more clarity so that employers can know when they are engaging in the sort of racial harassment that would violate state and federal employment law,” Griffin continued. “Consider the fact that an employer cannot take adverse employment action against an employee because of his or her race but could inundate its employee with racially hostile indoctrination. If the former conduct is prohibited, the latter should be as well.”
But this argument also isn’t sufficient.
For one thing, to whatever extent the “Stop Woke Act” simply prohibits conduct that’s already illegal under the Civil Rights Act, it’s redundant. It obviously goes further than that, or they wouldn’t be passing it.
Manhattan Institute Director of Constitutional Studies Ilya Shapiro told me that “the new law seems either redundant of existing law (if existing law were applied consistently) or infringing on private speech rights.”
Judge Walker further explains that anti-discrimination and harassment laws do not target speech, they target conduct, and require it be persistent and creating a hostile environment.
“The [Stop WOKE Act] is the inverse,” Walker writes. “It targets speech—endorsing any of eight concepts—and only incidentally burdens conduct. Even the slightest endorsement of any of the eight concepts at any required employment activity violates the statute; the [Stop WOKE Act] requires no evidence that the statement be even subjectively offensive. Nor does the [Stop WOKE Act] require that the statement create a severely or pervasively hostile work environment.”
Conservatives Need to Be Consistent
The ultimate conclusion here is clear. However sympathetic one might be to Ron DeSantis’s anti-woke sentiments, his legislation goes too far into infringing the rights of private businesses and runs afoul of the First Amendment. Just imagine what Democrats might do with this precedent, if it were somehow upheld.
“Conservatives who cheer on the Florida law should consider what liberal states—or, for that matter, a Democratic-controlled Congress—could do if allowed to engage in similar regulation,” Somin argues. “The same powers that Florida uses to target ‘woke’ employer speech can just as easily be used against conservative employers.”
“For example, it could be used to ban any required workplace training or ‘activities’ that involve advocacy or promotion of any ideas that might be considered racist, sexist, culturally ‘appropriative,’ or otherwise offensive to left-liberal sensibilities,” Somin concludes. “If you think courts should rule that kind of left-wing regulation unconstitutional, the same goes for the Stop Woke Act.”
But even these practical concerns aside, this is a matter of principle. Constitutional conservatives who cling to the First Amendment’s protections in other contexts cannot credibly make an exception for DeSantis’s agenda simply because they personally agree with the ideology it imposes.