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Federal Appeals Court Calls Florida’s “Stop WOKE Act” a “First Amendment Sin”

“[The law] penalizes certain viewpoints — the greatest First Amendment sin,” the appeals panel said.

Florida Gov. Ron DeSantis signs HB 7, known as the "Stop WOKE Act" bill, in Hialeah Gardens, Florida, in April, 2022.

A three-judge panel of the 11th U.S. Circuit Court of Appeals — including two Donald Trump appointees — voted Monday to block a key portion of Florida’s controversial 2022 “Stop WOKE Act” from going into effect. In doing so, the panel upheld a previous lower court ruling that prevented the law from going into effect in 2022.

“By limiting its restrictions to a list of ideas designated as offensive, the Act targets speech based on its content,” Judge Britt C. Grant, a Donald Trump appointee, wrote in the opinion. “And by barring only speech that endorses any of those ideas, it penalizes certain viewpoints — the greatest First Amendment sin.”

The “Stop WOKE Act,” officially known as the “Individual Freedom Act,” was designed to bar certain teachings concerning race and diversity in schools and workplaces. It specifically aims to counter discussions suggesting that an individual may experience privilege or oppression based on race, sex, or nationality, which Governor DeSantis (R) has labeled as “woke indoctrination.”

The law prohibits mandatory workplace training, including any training or instruction that “espouses, promotes, advances, inculcates, or compels” a particular set of beliefs related to race, color, sex, or national origin. One of the restrictions pertains to discussions on the idea that “[a]n individual’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin” in workplace trainings. Employers found in breach of the law could face significant financial penalties.

“This is not the first era in which Americans have held widely divergent views on important areas of morality, ethics, law and public policy,” the appeals panel said. “And it is not the first time that these disagreements have seemed so important, and their airing so dangerous, that something had to be done. But now, as before, the First Amendment keeps the government from putting its thumb on the scale.”

A coalition of businesses including honeymoon registry technology company Honeyfund.com, a Ben & Jerry’s franchise located in Florida, and workplace diversity consultancy Collective Concepts and its co-founder Chevara Orrin, challenged the law in court. The companies argued that the “Stop WOKE Act” compelled them to self-censor “on important societal matters” and prevented them “from engaging employees in robust discussion of ideas essential for improving their workplaces.”

“Even if we presumed that the Act served the interest of combating discrimination in some way, its breadth and scope would doom it. Banning speech on a wide variety of political topics is bad; banning speech on a wide variety of political viewpoints is worse,” the panel said in its opinion.

The companies and their legal representation, Protect Democracy and the law firm Ropes & Gray, celebrated the ruling as a “major victory for free speech in the workplace.”

“Speech codes have no place in American society, and elected officials have no business censoring the speech of business owners simply because they don’t agree with what’s being expressed,” Shalini Goel Agarwal, Protect Democracy counsel, said in a statement. “Barring employers from engaging in speech that powerful politicians don’t like is a move straight out of the authoritarian playbook.”

Another lawsuit concerning the application of the “Stop Woke Act” to race-related lessons in higher education is currently ongoing in federal court, though that provision of the law has also been temporarily blocked by a preliminary injunction. A hearing in that matter is currently scheduled for June.

“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,” the appeals court said.

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