03-12-2024
In 2022, Florida Governor Ron DeSantis oversaw the state's enactment of the "Stop W.O.K.E. Act." That law made it an unlawful employment practice to require employees to attend training that "espouses, promotes, advances, inculcates, or compels" employees to believe particular concepts related to race, gender, color, or national origin. The forbidden concepts include whether members of one group are "morally superior" to another, whether a person is "inherently racist, sexist, or oppressive" through their membership in a group, whether members of some groups should be treated a particular way, and whether a person "bears responsibility for, or should be discriminated against or receive adverse treatment because of" prior acts by members of that group. The statute directs an objective presentation of concepts.
Two employers and an independent DEI consultant filed suit against the state because they wanted to conduct mandatory DEI training. They asserted the statute violates the First Amendment because it restricts speech based on content and viewpoint. As such, it cannot withstand the strict scrutiny required for limiting First Amendment rights. A district court agreed with the parties and issued a preliminary injunction. The Eleventh Circuit Court of Appeals affirmed that injunction.
Courts grant injunctions when the parties will likely succeed on the merits of their suits. Here, the circuit court unanimously determined that Florida expressly placed restrictions on a list of ideas designated as "offensive," thus the law "targets speech based on its content." The state's effort to bar "only speech that endorses any of those ideas" and "penalizes certain viewpoints" is "the greatest First Amendment sin." Florida argued the statute did not ban speech but rather the conduct of the meetings. The court dismissed that argument, holding, "the only way to discern which mandatory trainings are prohibited is to find out whether the speaker disagrees with Florida. That is a classic — and disallowed — regulation of speech.” Florida cannot ban speech based on political viewpoint, which would allow "a majority to silence dissidents," the court concluded.