Wannabe Censor Ron DeSantis Is Now 0 For 2 With His Censorship Bills: Court Throws Out His ‘Stop WOKE Act’ As Unconstitutional

Ron DeSantis likes to pretend that he's in favor of free speech. He talks about free speech quite frequently. But the fact is that he's a garden variety authoritarian censor in a cheap suit. He keeps passing culture war pro-censorship bills that try to stifle the free speech rights of his critics - quintessential anti-1st Amendment censorship. And each time people, rightly, sue to protect their rights. And each time, DeSantis has to waste taxpayer money to defend his indefensible bills. And each time he loses as courts point out that, dude, the 1st Amendment doesn't allow you to do that shit.

As you'll recall, we wrote quite a bit about his attempt to block the editorial rights of websites with his content moderation bill. That bill was declared unconstitutional by both the district court and the appeals court (the latter with an opinion written by a Trump-appointed judge who many people insisted to me would certainly rule in favor of Florida).

But, of course, DeSantis has many culture wars to fight and many libs to own if he's going to keep his name in the headlines to support his eventual White House bid as Trump, but more competently authoritarian, rather than bumbling." So he's passed a bunch of similarly blatantly unconstitutional laws, including his bill to punish Disney for... mildly suggesting that DeSantis' culture war attacks were not great.

Perhaps the blatantly unconstitutional bill that has received the most attention was DeSantis' Stop WOKE Act," also called the Individual Freedom Act" (or IFA, which is its official name and how it's referred to by the court below). That bill, which (falsely) claimed to be an antidiscrimination" law, attempted to ban a bunch of practices designed to bring about more diversity in the work place, and like so many bills these days, opened up companies to frivolous nuisance lawsuits by the public.

A Florida based tech company, HoneyFund, sued DeSantis over the law, and a district court has now granted a preliminary injunction blocking the enforcement of the law and saying it's clearly unconstitutional. The court also sorta rejected DeSantis' claim that he's not the proper defendant - though it denied the part of the injunction targeting him, noting that he's not really the guy enforcing the law (the injunction instead goes towards other Florida officials, such as the Attorney General of the state).

The federal judge, Mark Walker, recognizes the nonsense that is coming from the governor's office these days. The opening of his ruling even cites that Netchoice v. Moody case (the social media content moderation law) to highlight how Florida and DeSantis are trying to ignore the 1st Amendment:

In the popular television series Stranger Things, the upside down" describesa 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 privateactors may burden speech freely. But in Florida, the First Amendment apparentlybars private actors from burdening speech, while the state may burden speech freely.Compare NetChoice, LLC v. Moody, 546 F. Supp. 3d 1082, 1084 (N.D. Fla. 2021),with 760.10(8)(a)-(b), Fla. Stat.

Now, like the heroine in Stranger Things, this Court is once again asked topull Florida back from the upside down. Before this Court is a motion for apreliminary injunction, asking this Court to enjoin a host of Government officials from enforcing portions of the Individual Freedom Act-a law that prohibitsemployers from endorsing any of eight concepts during any mandatory employmentactivity. Because the challenged provision of the Act is a naked viewpoint-basedregulation on speech that does not pass strict scrutiny, Plaintiffs' motion for apreliminary injunction, ECF No. 18, is GRANTED in part.

All of Florida's very weak excuses as to how the law was constitutional fail the laugh test. Florida said the law is okay because it targets conduct, not speech. Not so, notes the court:

To start-though trainings are admittedly at the center of this case-the IFAdoes far more than ban mandatory trainings. It bars any . . . required activity" atwhich the eight forbidden concepts" are discussed and endorsed. 760.10(8)(a),Fla. Stat. (emphasis added). Conceivably, that includes trainings, phone calls,assignments, discussions-anything that is required and endorses the concepts.

More to the point, the IFA does not ban all mandatory employee trainings.Nor does it ban mandatory trainings addressing certain concepts. No, the IFA onlyprohibits trainings that endorse the covered concepts. Indeed, the IFA grantsemployers free rein to hold mandatory trainings addressing any of the eight conceptsso long as those trainings condemn or take no position on those concepts

Take that idea further. Because the IFA covers any required activity, anemployer could require every employee to read Woke, Inc., Inside CorporateAmerica's Social Justice Scam but could not require employees to read The Color ofLaw. Worse still, a nonprofit corporation devoted to promoting the idea that whiteprivilege exists could not hold a required meeting at which it endorses the conceptof white privilege. But a nonprofit holding the opposite view could freely holdmeetings criticizing the concept of white privilege.

The bottom line is that the only way to determine whether the IFA bars amandatory activity is to look to the viewpoint expressed at that activity-to look atspeech. Plainly, the IFA regulates speech.

There are a bunch of other similarly silly arguments made by Florida, but I'll highlight just one. Florida claimed that striking down the law would directly threaten the validity of Title VII's protections against hostile working environments." It's no secret that the people who put together the law tried to model it on civil rights law to make this argument. But that's an argument that only works on very, very silly people. And the judge is not silly:

Title VII does not regulate speech. Rather, it targets conduct-discriminatingwith respect to . . . compensation, terms, conditions, or privileges ofemployment"-and only incidentally burdens speech. 42 U.S.C. 2000e-2(a)(1);see Wisconsin v. Mitchell, 508 U.S. 476, 487 (1993) (calling Title VII a permissiblecontent-neutral regulation of conduct"); see also R.A.V., 505 U.S. at 389; FAIR, 547U.S. at 62; Sorrell, 564 U.S. at 567. That prohibition on conduct includes a bar onrequiring people to work in a discriminatorily hostile or abusive environment."Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). In turn, to be sure, it can bemostly speech that creates this environment, but only when such speech is bothobjectively and subjectively offensive and when it is sufficiently severe or pervasive. This severity or pervasiveness" requirement-that is, a requirement that theconduct objectively and subjectively creates a hostile environment or substantiallyinterferes with an individual's work"-provides shelter for core protected speech."DeJohn v. Temple Univ., 537 F.3d 301, 317-18 (3d Cir. 2008).

The IFA is the inverse. It targets speech-endorsing any of eight concepts-and only incidentally burdens conduct. Even the slightest endorsement of any of theeight concepts at any required employment activity violates the statute; the IFArequires no evidence that the statement be even subjectively offensive. Nor does theIFA require that the statement create a severely or pervasively hostile workenvironment. Thus, the IFA, by design, provides no shelter for core protectedspeech."

Given that the law impacts speech, the court runs it through the strict scrutiny test and... finds that it fails. Easily.

In sum, the IFA sweeps up an enormous amount of protected speech to ban asliver of offensive conduct that exists somewhere between the trainings Plaintiffswish to hold and what the FCRA already bars. It is, to borrow a phrase from defense counsel, self-evident. The IFA is not narrowly tailored. And so, the IFA violates theFirst Amendment.

The judge then - somewhat beautifully - turns the whole free speech stuff around on the state of Florida and notes that if it believes this stuff is so horrible, it can express its opinion on it, but it can't ban it:

Florida's Legislators may well find Plaintiffs' speech repugnant." But underour constitutional scheme, the remedy" for repugnant speech is more speech, notenforced silence." Whitney v. California, 274 U.S. 357, 377 (1927). Indeed, it is thepurpose of the First Amendment to preserve an uninhibited marketplace of ideas inwhich truth will ultimately prevail." Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390(1969). If Florida truly believes we live in a post-racial society, then let it make itscase. But it cannot win the argument by muzzling its opponents. Because, withoutjustification, the IFA attacks ideas, not conduct, Plaintiffs are substantially likely tosucceed on the merits of this lawsuit

There's a lot more in the ruling, but once we've gotten to the point that the law is so blatantly unconstitutional the rest isn't important. You may see that the injunction request was only granted in part," but the only part that wasn't granted (as discussed above) is the part enjoining DeSantis himself, since he has no real enforcement authority directly. The injunction basically blocks everyone who could actually enforce the law.

It's notable that this lawsuit, from an employer in the state, focused on the parts of the law that blocked certain kinds of diversity training in the workplace. The same day that this ruling came out, a bunch of students, represented by the ACLU, have also sued the state over the classroom parts of the bill...

Of course, at some point, I'd love to hear the supposedly fiscally conservative Republicans" who support the Constitution" defend the fact that their governor is throwing away taxpayer dollars pushing blatantly unconstitutional bills that make a mockery of the 1st Amendment solely to own the libs" and further his own political ambitions. Feel free to display your cognitive dissonance in the comments.