{"id":3893,"date":"2023-04-09T23:09:06","date_gmt":"2023-04-10T03:09:06","guid":{"rendered":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/?p=3893"},"modified":"2024-09-27T18:57:21","modified_gmt":"2024-09-27T18:57:21","slug":"can-gov-desantis-stop-woke-in-private-workplaces","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/can-gov-desantis-stop-woke-in-private-workplaces\/","title":{"rendered":"Can Gov. DeSantis \u201cStop Woke\u201d in Private Workplaces?"},"content":{"rendered":"\n

Image from The Coach Space via Pexels<\/a><\/p>\n\n\n\n

By Andrew Kragie<\/a>, Vol. 21 Staff Writer<\/p>\n\n\n\n

America has recently seen a renewed focus on civil rights and racial justice\u2014as well as dramatic divisions over how to discuss race, rights, justice, and history. The current moral panic<\/a> over critical race theory<\/a> (\u201cCRT\u201d) 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.<\/p>\n\n\n\n

At the forefront of the anti-CRT movement is Florida, where Republican Gov. Ron DeSantis cruised to re-election<\/a> in 2022 and is building a national brand<\/a> ahead of a possible challenge<\/a> to former President Donald Trump for the GOP presidential nomination. DeSantis has placed opposition to \u201cwoke ideology\u201d at the center of his agenda. In his January inauguration speech that Fox News called<\/a> \u201ca 2024 presidential candidate speech,\u201d the governor vowed: \u201cWe will never surrender to the woke mob. Florida is where woke goes to die.\u201d<\/p>\n\n\n\n

The Stop WOKE Act<\/strong><\/p>\n\n\n\n

One of DeSantis\u2019 top legislative achievements is the Stop WOKE (Wrongs to Our Kids and Employees) Act, a law signed in April 2022 that his office called<\/a> \u201cthe first of its kind in the nation to take on both corporate wokeness and Critical Race Theory in schools in one act.\u201d The statute<\/a> allowed workers to sue employers over mandatory trainings that endorse certain concepts, including the idea that a person\u2019s \u201cstatus as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin\u201d\u2014i.e., white privilege. <\/p>\n\n\n\n

A honeymoon registry company and a diversity consultant soon filed a lawsuit<\/a> challenging the Stop WOKE Act\u2019s limits on private employers. They said the law violated the First Amendment<\/a>, 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 \u201cmarketplace of ideas<\/a>.\u201d<\/p>\n\n\n\n

In August 2022, a federal district judge<\/a> agreed and blocked the Stop WOKE Act\u2019s restrictions on private employers.<\/p>\n\n\n\n

\u201cIf 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,\u201d wrote<\/a> Chief U.S. District Judge Mark E. Walker of the Northern District of Florida. The judge found much of the statute unconstitutionally vague<\/a>, meaning its language was so unclear that a reasonable person could not figure out what conduct was prohibited. One of the forbidden concepts was \u201cmired in obscurity\u201d; another was \u201ceven worse, bordering on unintelligible,\u201d in part because it \u201cfeatures a rarely seen triple negative, resulting in a cacophony of confusion.\u201d<\/p>\n\n\n\n

First Amendment principles<\/strong><\/p>\n\n\n\n

The district judge found the case was easily decided by settled First Amendment principles.<\/p>\n\n\n\n

First, the judge applied a key framework developed by the Supreme Court: viewpoint discrimination<\/a>. 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<\/a> from 1969 that explained \u201cit is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.\u201d Courts will only let the government engage in viewpoint discrimination for an exceptionally compelling reason that satisfies rigorous review under strict scrutiny<\/a>. Judge Walker found the section on workplace training to be \u201ca naked viewpoint-based regulation on speech that does not pass strict scrutiny.\u201d<\/p>\n\n\n\n

Second, the judge quickly rejected Florida\u2019s argument that it was regulating conduct rather than speech. The state argued the law just regulated actions, but the judge said \u201cthe only<\/em> way to determine whether the [law] bars a mandatory activity is to look to the viewpoint expressed at that activity\u2014to look at speech.\u201d Florida failed to convince the judge that the law\u2019s impact on speech was merely incidental\u2014a 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<\/a> 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 \u201crule cannot be understood without reference to the underlying speech\u2019s content.\u201d<\/p>\n\n\n\n

Third, the court declined to apply the \u201ccaptive audience<\/a>\u201d 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 \u201csparingly\u201d because it could allow popular majorities to silence controversial views; the justices even held in 2011<\/a> that an anti-gay religious group could loudly picket a military servicemember\u2019s funeral from a nearby public space, even though the servicemember\u2019s 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\u2019s limits still violated the Constitution by restricting only some<\/em> mandatory workplace trainings\u2014those with a particular viewpoint.<\/p>\n\n\n\n

On Appeal<\/strong><\/p>\n\n\n\n

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<\/a> Judge Walker was wrong because the workplace training rule \u201cdoes not limit\u201d speech by employers but merely \u201cprevent[s] employers from conscripting their employees<\/em>, against their will, into the audience as a condition of their employment<\/em>.\u201d The state reiterated its argument that the law \u201creaches only employer conduct<\/em>, not speech, and the First Amendment has nothing to say about it.\u201d The plaintiffs responded<\/a> in January that Florida is violating \u201cthe First Amendment\u2019s most fundamental premise\u201d by trying to \u201csilence speech based on its content or viewpoint,\u201d calling the state\u2019s war on wokeness \u201cthe stuff of autocrats and totalitarian regimes.\u201d<\/p>\n\n\n\n

The appeal has not yet been scheduled for argument<\/a> or assigned to a panel of three judges. Most judges<\/a> on the Eleventh Circuit were appointed by Republican presidents<\/a>, but recent decisions<\/a> about Trump\u2019s handling of classified documents have once again demonstrated that judges do not necessarily side with their appointing party. The Stop WOKE Act\u2019s 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.<\/a>, No. 22-13135 in the United States Court of Appeals for the Eleventh Circuit.<\/p>\n\n\n\n

P.S.<\/em> Private-sector workers should know that while employer<\/em> speech is protected from governmental interference, the First Amendment is irrelevant when private employers regulate their workers\u2019 speech, because there is no state action<\/a>. However, some states have statutes limiting employment discrimination<\/a> based on certain types of speech, off-duty conduct, or political activity.<\/p>\n","protected":false},"excerpt":{"rendered":"

America has recently seen a renewed focus on civil rights and racial justice\u2014as well as dramatic divisions over how to discuss race, rights, justice, and history. The current moral panic over critical race theory (\u201cCRT\u201d) 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.<\/p>\n","protected":false},"author":10,"featured_media":3906,"comment_status":"open","ping_status":"open","sticky":true,"template":"","format":"standard","meta":[],"categories":[396,10],"tags":[99,111,138,305,324],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/3893"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/comments?post=3893"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/3893\/revisions"}],"predecessor-version":[{"id":5276,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/3893\/revisions\/5276"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media\/3906"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media?parent=3893"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/categories?post=3893"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/tags?post=3893"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}