Federal Court Stops the “Stop WOKE” Act on First Amendment Grounds – Twice

By Tyler Ventura, Vol. 21 Staff Writer

Florida Governor Ron DeSantis made national headlines last spring as he championed the passing of House Bill 7 (also known as HB 7 or the “Stop WOKE” act) through Florida’s state legislature. This law focused largely on the teaching of critical race theory, otherwise known as “CRT,” in schools and businesses. Regarding schools, the act codified “the Florida Department of Education’s prohibition on teaching critical race theory in K-12 schools” and prevented school districts, colleges, and universities from “hiring woke CRT consultants.” The law also sought to prevent “critical race theory training” in corporations located in Florida in an effort to protect “employees against a hostile work environment.” The law passed while Governor DeSantis’s reelection campaign was in full swing. On the campaign trail, he categorized critical race theory as part of a “woke ideology” that attempts to “delegitimize history and to delegitimize our institutions.” At a press conference that was specifically focused on critical race theory in December of 2021, Governor DeSantis stood at a podium that advertised the “Stop WOKE act,” while also stating that “I view the wokeness as a form of Cultural Marxism.”

The Education Lawsuit

Opponents of HB 7 quickly challenged the law’s validity on First Amendment grounds as it applied to colleges, universities, and businesses. The NAACP Legal Defense Fund (LDF) filed a lawsuit, Pernell v. Florida Board of Governors, which sought to block the enforcement of HB 7 in colleges and universities by arguing that the law had a chilling effect on speech. According to the LDF, the law “creates a hostile climate that stigmatizes talking about race on campuses and generates fear among plaintiffs and other Black educators and students who teach or take coursework that discuss race and gender issues.” Moreover, due to the passing of this law, “universities across Florida have canceled or scaled back diversity and inclusion trainings and have taken down public-facing statements denouncing racism.” On August 25, 2022, the LDF filed a motion supporting a preliminary injunction to block the act and three months later, on November 17, U.S. District Judge Mark Walker issued an order that blocked HB 7 as it applies to colleges and universities in Florida.

In Pernell, Judge Walker stated that Florida’s argument was in effect asking the Court to “conflate the State’s right to make content-based choices in setting the public school curriculum,” (a permissible action under the First Amendment) “with unfettered discretion in limiting a professor’s ability to express certain viewpoints about the content of the curriculum once it has been set” (an impermissible restriction).

In coming to his decision, Judge Walker looked in part to the Eleventh Circuit’s decision in Bishop v. Aronov, which held that “the First Amendment places some limit on the State’s ability to prohibit what a professor may say in a university classroom.” Bishop also held that “the First Amendment protects university professors’ in-class speech,” and the test that the court created tried to balance “the speaker’s First Amendment rights with the university’s special interest in enforcing some limitations on that speech.” This balancing test is derived from the United States Supreme Court’s decision in Hazelwood v. Kuhlmeier, which specified that the test “involves a case-by-case inquiry into whether the legitimate interests of the authorities are demonstrably sufficient to circumscribe a teacher’s speech.”

Judge Walker powerfully concluded: “in sum, Bishop’s balancing test—as applied to the facts before this court—favor’s Plaintiffs’ free speech rights over Defendants’ enforcement of a viewpoint-discriminatory ban targeting protected speech . . . the First Amendment does not permit the State of Florida to muzzle its university professors, impose its own orthodoxy of viewpoints, and cast us all in the dark.”

The Business Lawsuit

Earlier in August 2022, in a separate lawsuit called Honeyfund.com v. DeSantis, Judge Walker also ruled that the “Stop WOKE” act was unconstitutional under the First Amendment as it applied to businesses. In Honeyfund.com, the plaintiffs were employers who wanted to mandate trainings for their employees that were banned with the passing of HB 7. Judge Walker’s opinion in Honeyfund.com begins as colorfully as his opinion in Pernell ended, with him comparing Florida’s treatment of the First Amendment to the “upside down” parallel dimension in the Netflix television series Stranger Things. Specifically, Judge Walker wrote that “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.”

Judge Walker quickly found that HB 7 engaged in viewpoint-based distinction as it applied to businesses, because the law “targets only those viewpoints with which the State disagrees,” and therefore triggers strict scrutiny. While Florida argued that it has a compelling interest in preventing employers from “foisting speech that the State finds repugnant on a ‘captive audience’ of employees,” Judge Walker held that the law does not pass strict scrutiny because its restrictions are overinclusive. More specifically, Judge Walker held that the “Stop WOKE” act “sweeps up an enormous amount of protected speech to ban a sliver of offensive conduct” and is therefore not narrowly tailored. Judge Walker also held that HB 7 was unconstitutional due to its vagueness, holding that some of the language within the law involved inherently vague terms that “fail[] to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.”

Florida’s Response

Despite the holdings of these two cases, Governor DeSantis has stated that any setbacks on the trial court level are “likely to be reversed” by the Eleventh Circuit, the federal appellate court for Florida that tends to be more conservative. Moreover, despite Judge Walker’s dual decisions in Pernell and Honeyfund.com, the “Stop WOKE” act’s provisions appear to still apply to K-12 schools in the Florida. In response to the district court’s decision in Pernell, the State of Florida filed a notice of appeal on November 30 in the Eleventh Circuit. In all likelihood, Judge Walker’s holding in Honeyfund.com will also be appealed to the Eleventh Circuit. And so, the future of the “Stop WOKE” act appears to rely, at least in part, on the degree to which the Eleventh Circuit agrees with Judge Walker’s First Amendment reasoning and application.

Ironically, another name for HB 7 is the IFA or “Individual Freedoms Act.” This is a very interesting name for a law that, at least for Judge Walker, elicited memories of dystopian works such as George Orwell’s 1984, which he cited in the beginning of his opinion in Pernell. It is also perhaps equally ironic for a law that was passed, at least in part, to prevent the spread of “Cultural Marxism” in the United States to, in the eyes of at least one federal judge, ring in the same tune as big brother’s totalitarian state of Oceania. Nevertheless, it will be very interesting to see what the future holds for the “Stop WOKE” act as it reaches the Eleventh Circuit and, perhaps one day, the United States Supreme Court.  

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