Earlier this year Florida passed something the legislature captioned as the “Individual Freedom Act.” However, when signing it, Florida Governor DeSantis designated it the “Stop Woke Act,” using children as props waiving anti-CRT and “Stop Woke” signs behind him.
In the usual Republican approach to freedom the “Individual Freedom Act” told people, and companies what they cannot do. Put simply, the law expanded the definition of “prohibited employment practice” to include any company training that the state government deems “woke.” For example, a company could not have diversity training that suggested “white privilege” exists.
Some companies who desired to conduct such prohibited classes sued. Today Federal District Court Judge Mark Walker handed down a decision granting plaintiffs an injunction blocking enforcement of the law. You can read it HERE.
As a fan of the Netflix series “Stranger Things” I loved the decision from the beginning as the judge starts by comparing Florida’s position on the law to the “Upside Down” parallel universe in the series:
“In the popular television series Stranger Things, the “upside down” describes a parallel dimension containing a distorted version of our world. See Stranger Things (Netflix 2022). Recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely. [citations omitted] Now, like the heroine in Stranger Things, this Court is once again asked to pull Florida back from the upside down.”
Yes, things are strange in the Upside Down . . .
But perhaps even stranger in Florida.
With this bit of fun out of the way, Judge Walker moved into the meat of the decision. Florida’s argument was that the law did not limit speech, but only conduct. Judge Walker would have none of it. The fundamental flaw in this is that conduct is barred in a one sided manner. Companies, for example, are banned from providing training that white privilege exists, but they are completely free under the law to teach the opposite idea, that white privilege does not exist. In the words of the judge:
“the IFA only prohibits trainings that endorse the covered concepts. Indeed, the IFA 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 . . . 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. The bottom line is that the only way to determine whether the IFA bars a mandatory activity is to look to the viewpoint expressed at that activity — to look at speech. Plainly, the IFA regulates speech.”
As the judge put it, the law “is directed at certain content and is aimed at particular speakers.” In the end Judge Walker spoke of the marketplace of ideas, how ideas from all sides must be allowed. The judge concluded: “If Florida truly believes we live in a post-racial society, then let it make its case. But it cannot win the argument by muzzling its opponents.”
The judge also found the statute impermissibly ambiguous. The judge cited “forbidden concept” number four which stated, employers cannot endorse the view that: “members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin.”
Having a bit of fun with this the judge stated that this “features a rarely seen triple negative, resulting in a cacophony of confusion” and described the provision as “bordering on unintelligible.” Go ahead, try to make sense of it yourself.
In the end, the judge struck down the Florida Man’s law, thereby allowing companies to be as woke as they desire. Floridians have been rescued from Governor DeSantis and his Constitutional Upside Down.