Can Gov. DeSantis “Stop Woke” in Private Workplaces?

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By Andrew Kragie, Vol. 21 Staff Writer

America has recently seen a renewed focus on civil rights and racial justice—as well as dramatic divisions over how to discuss race, rights, justice, and history. The current moral panic over critical race theory (“CRT”) has spurred some conservative officials to regulate the treatment of race in schools, libraries, and workplaces. While public schools and libraries are subject to significant governmental control, a high-profile court case is testing whether the First Amendment limits anti-CRT efforts in another key forum: the private workplaces that employ most American adults.

At the forefront of the anti-CRT movement is Florida, where Republican Gov. Ron DeSantis cruised to re-election in 2022 and is building a national brand ahead of a possible challenge to former President Donald Trump for the GOP presidential nomination. DeSantis has placed opposition to “woke ideology” at the center of his agenda. In his January inauguration speech that Fox News called “a 2024 presidential candidate speech,” the governor vowed: “We will never surrender to the woke mob. Florida is where woke goes to die.”

The Stop WOKE Act

One of DeSantis’ top legislative achievements is the Stop WOKE (Wrongs to Our Kids and Employees) Act, a law signed in April 2022 that his office called “the first of its kind in the nation to take on both corporate wokeness and Critical Race Theory in schools in one act.” The statute allowed workers to sue employers over mandatory trainings that endorse certain concepts, including the idea that a person’s “status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin”—i.e., white privilege. 

A honeymoon registry company and a diversity consultant soon filed a lawsuit challenging the Stop WOKE Act’s limits on private employers. They said the law violated the First Amendment, which requires the government to respect the freedom of speech. Officials cannot dictate what citizens and private entities must or must not think, believe, or say. Self-government and the search for truth are left to the people and their “marketplace of ideas.”

In August 2022, a federal district judge agreed and blocked the Stop WOKE Act’s restrictions on private employers.

“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,” wrote Chief U.S. District Judge Mark E. Walker of the Northern District of Florida. The judge found much of the statute unconstitutionally vague, meaning its language was so unclear that a reasonable person could not figure out what conduct was prohibited. One of the forbidden concepts was “mired in obscurity”; another was “even worse, bordering on unintelligible,” in part because it “features a rarely seen triple negative, resulting in a cacophony of confusion.”

First Amendment principles

The district judge found the case was easily decided by settled First Amendment principles.

First, the judge applied a key framework developed by the Supreme Court: viewpoint discrimination. The courts have interpreted freedom of speech to mean that a democratic government may not decide among competing ideas and declare who is right. The judge quoted from a Supreme Court decision from 1969 that explained “it is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” Courts will only let the government engage in viewpoint discrimination for an exceptionally compelling reason that satisfies rigorous review under strict scrutiny. Judge Walker found the section on workplace training to be “a naked viewpoint-based regulation on speech that does not pass strict scrutiny.”

Second, the judge quickly rejected Florida’s argument that it was regulating conduct rather than speech. The state argued the law just regulated actions, but the judge said “the only way to determine whether the [law] bars a mandatory activity is to look to the viewpoint expressed at that activity—to look at speech.” Florida failed to convince the judge that the law’s impact on speech was merely incidental—a side effect of a law that actually targets non-expressive conduct, which lacks First Amendment protection. The judge drew on a 2006 Supreme Court ruling that Congress could require law schools receiving federal funding to give military recruiters equal access as other employers. While law schools were not engaged in speech when they passed along notifications or facilitated scheduling in that case, here the Stop Woke Act directly regulated speech because its “rule cannot be understood without reference to the underlying speech’s content.”

Third, the court declined to apply the “captive audience” doctrine, which allows restrictions on speech to protect unwilling listeners from things like picketing in residential areas. Judge Walker noted the Supreme Court has said courts should use the doctrine “sparingly” because it could allow popular majorities to silence controversial views; the justices even held in 2011 that an anti-gay religious group could loudly picket a military servicemember’s funeral from a nearby public space, even though the servicemember’s family argued it was a captive audience in a nearby church. Judge Walker said that even if private-sector workers constitute a captive audience, the Stop WOKE Act’s limits still violated the Constitution by restricting only some mandatory workplace trainings—those with a particular viewpoint.

On Appeal

Judge Walker found these core First Amendment principles easily decided the case, but Florida has appealed to the U.S. Court of Appeals for the Eleventh Circuit. Florida argued Judge Walker was wrong because the workplace training rule “does not limit” speech by employers but merely “prevent[s] employers from conscripting their employees, against their will, into the audience as a condition of their employment.” The state reiterated its argument that the law “reaches only employer conduct, not speech, and the First Amendment has nothing to say about it.” The plaintiffs responded in January that Florida is violating “the First Amendment’s most fundamental premise” by trying to “silence speech based on its content or viewpoint,” calling the state’s war on wokeness “the stuff of autocrats and totalitarian regimes.”

The appeal has not yet been scheduled for argument or assigned to a panel of three judges. Most judges on the Eleventh Circuit were appointed by Republican presidents, but recent decisions about Trump’s handling of classified documents have once again demonstrated that judges do not necessarily side with their appointing party. The Stop WOKE Act’s restriction on private employers seems like a textbook example of viewpoint discrimination, but First Amendment cases often turn on conceptual framing. The appeals court could rule for Florida if it accepts arguments about captive audiences or agrees the law regulates conduct rather than speech. The case is Honeyfund.com Inc. et al. v. DeSantis et al., No. 22-13135 in the United States Court of Appeals for the Eleventh Circuit.

P.S. Private-sector workers should know that while employer speech is protected from governmental interference, the First Amendment is irrelevant when private employers regulate their workers’ speech, because there is no state action. However, some states have statutes limiting employment discrimination based on certain types of speech, off-duty conduct, or political activity.