ATLANTA—Donald Trump may plan to tear up the U.S. Constitution, but a former foe for the GOP presidential nomination, right-wing Florida Gov. Ron DeSantis, already tried—and in scathing language, the 11th U.S. Circuit Court of Appeals shot him and his ‘Stop WOKE Act’ down.
But the whole sequence just goes to show how far the MAGA Republicans will go these days to violate basic rights all Americans take for granted.
The ruling by Judge Britt Gordon, named to the Atlanta-based appellate bench by Democratic President Bill Clinton, says the Stop WOKE Act violates the 1st Amendment’s free speech dictate.
Florida’s law says the government can ban employers from forcing workers to attend meetings on certain “rejected ideas,” namely “divisive concepts” that “members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.” Ditto for meetings promoting diversity, equity, and inclusion. It goes downhill from there.
“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,” the judges wrote.
“This law, as Florida concedes, draws its distinctions based on viewpoint—the most pernicious of dividing lines under the First Amendment.”
Though the law, which DeSantis pushed through the GOP-gerrymandered legislature, did not say so, Florida meant to protect and/or praise white people. In classic Orwellian language, lawmakers dubbed it “The Individual Freedom Act.” Everyone else calls it the “Stop WOKE Act.”
If the meetings were designed to praise favored groups, employers could order workers to attend, the Stop WOKE Act said.
Florida tried to cloak the Stop WOKE Act as regulating meetings, not speech. But it also threatened violating employers with injunctions, $100,000 fines, back pay for workers, and paying lawyers’ fees. And it said anyone—read “vigilantes”—could sue the firms that defied the Stop WOKE Act.
Judge Gordon, joined by fellow Clinton appointee Judge Charles Wilson and Judge Andrew Brasher, whom former Oval Office occupant Trump named to the bench, didn’t buy it. They threw the bans out.
“We reject this latest attempt to control speech by re-characterizing 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.”
“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 the act rejects certain viewpoints.”
Governments can regulate conduct, the judges said, but not use that “as a smokescreen for regulating speech.” The Stop WOKE Act tried that smokescreen, the three-judge panel added. “Hiding speech restrictions in conduct rules is not only a “dubious constitutional enterprise”—it is also a losing constitutional strategy.”
Teachers (AFT) President Randi Weingarten, a New York City civics teacher who also holds a law degree, didn’t buy Florida’s argument for Stop WOKE, either.
“This ruling makes clear: The workplace is not an appropriate venue for DeSantis’ divisive culture-war politics and blatant attacks on free speech,” said Weingarten.
“The extremist attempt to put a finger on the scale by penalizing certain viewpoints is just one of many attempts to control speech by characterizing it as conduct, and that effort was rejected. In a democracy, we cannot label opinions we don’t agree with as conduct that must be limited.
“As the ruling states, ‘No matter how controversial the ideas, allowing the government to set the terms of the debate is poison, not antidote.’ These laws limiting workplace speech are not only unpopular; now they’re illegal too.
“It’s a major victory for the 1st Amendment and for all of us who believe that a law designed to discriminate against certain views is antithetical to the very principles on which our country was built.”
AFT and its joint AFT-National Education Association affiliate, the Florida Education Association, have battled DeSantis and the MAGA majority in the legislature for years, trying to protect teachers from bans on tenure, state censorship of what they teach, and other threats to freedom for them to teach and students to learn. The most notorious of their diktats: The “Don’t say gay” law.
The union and the state have also crossed swords on recertifying unions, by supermajorities of all members, yearly—a favorite right-wing way to disenfranchise workers. DeSantis and the state won.
The three appellate judges also used sarcasm to punch constitutional holes into Florida’s law. The state “says even if speech defines the contours of the prohibition, so long as the resulting burden is on conduct, that conduct is all the state is regulating,” they wrote.
“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.”
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