The Education Lawsuit<\/strong><\/p>\n\n\n\n Opponents of HB 7 quickly challenged the law\u2019s 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<\/em><\/a>, 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 \u201ccreates 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.\u201d<\/a> Moreover, due to the passing of this law<\/a>, \u201cuniversities across Florida have canceled or scaled back diversity and inclusion trainings and have taken down public-facing statements denouncing racism.\u201d On August 25, 2022, the LDF filed a motion supporting a preliminary injunction<\/a> to block the act and three months later, on November 17, U.S. District Judge Mark Walker issued an order<\/a> that blocked HB 7 as it applies to colleges and universities in Florida.<\/p>\n\n\n\n In Pernell<\/em>, Judge Walker stated<\/a> that Florida\u2019s argument was in effect asking the Court to \u201cconflate the State\u2019s right to make content-based choices in setting the public school curriculum,\u201d (a permissible action under the First Amendment) \u201cwith unfettered discretion in limiting a professor\u2019s ability to express certain viewpoints about the content of the curriculum once it has been set\u201d (an impermissible restriction).<\/p>\n\n\n\n In coming to his decision, Judge Walker looked in part to the Eleventh Circuit\u2019s decision in Bishop v. Aronov<\/em>,<\/a> which held that \u201cthe First Amendment places some limit on the State\u2019s ability to prohibit what a professor may say in a university classroom.\u201d Bishop <\/em>also held that \u201cthe First Amendment protects university professors\u2019 in-class speech,\u201d and the test that the court created tried to balance \u201cthe speaker\u2019s First Amendment rights with the university\u2019s special interest in enforcing some limitations on that speech.\u201d This balancing test is derived from the United States Supreme Court\u2019s decision in Hazelwood v. Kuhlmeier<\/em>, which<\/a> specified that the test \u201cinvolves a case-by-case inquiry into whether the legitimate interests of the authorities are demonstrably sufficient to circumscribe a teacher\u2019s speech.\u201d<\/p>\n\n\n\n Judge Walker powerfully concluded: \u201cin sum, Bishop\u2019<\/em>s balancing test\u2014as applied to the facts before this court\u2014favor\u2019s Plaintiffs\u2019 free speech rights over Defendants\u2019 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.\u201d<\/p>\n\n\n\n The Business Lawsuit<\/strong><\/p>\n\n\n\n Earlier in August 2022, in a separate lawsuit called Honeyfund.com v. DeSantis<\/em>, Judge Walker also ruled that the \u201cStop WOKE\u201d act was unconstitutional under the First Amendment as it applied to businesses. In Honeyfund.com<\/em><\/a>, the plaintiffs were employers who wanted to mandate trainings for their employees that were banned with the passing of HB 7. Judge Walker\u2019s opinion<\/a> in Honeyfund.com<\/em> begins as colorfully as his opinion in Pernell<\/em> ended, with him comparing Florida\u2019s treatment of the First Amendment to the \u201cupside down\u201d parallel dimension in the Netflix television series Stranger Things<\/em>. Specifically, Judge Walker wrote that \u201crecently, 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.\u201d<\/p>\n\n\n\n Judge Walker quickly found that HB 7 engaged in viewpoint-based distinction as it applied to businesses, because the law \u201ctargets only those viewpoints with which the State disagrees,\u201d and therefore triggers strict scrutiny<\/a>. While Florida argued that it has a compelling interest in preventing employers from \u201cfoisting speech that the State finds repugnant on a \u2018captive audience\u2019 of employees,\u201d Judge Walker held that the law does not pass strict scrutiny because its restrictions are overinclusive. More specifically, Judge Walker held that the \u201cStop WOKE\u201d act \u201csweeps up an enormous amount of protected speech to ban a sliver of offensive conduct\u201d 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 \u201cfail[] to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.\u201d<\/p>\n\n\n\n Florida\u2019s Response<\/strong><\/p>\n\n\n\n Despite the holdings of these two cases, Governor DeSantis has stated that any setbacks on the trial court level are \u201clikely to be reversed\u201d by the Eleventh Circuit<\/a>, the federal appellate court for Florida that tends to be more conservative. Moreover, despite Judge Walker\u2019s dual decisions in Pernell<\/em> and Honeyfund.com<\/em>, the \u201cStop WOKE\u201d act\u2019s provisions appear to still apply to K-12 schools in the Florida. In response to the district court\u2019s decision in Pernell<\/em>, the State of Florida filed a notice of appeal on November 30 in the Eleventh Circuit.<\/a> In all likelihood, Judge Walker\u2019s holding in Honeyfund.com<\/em> will also be appealed to the Eleventh Circuit. And so, the future of the \u201cStop WOKE\u201d act appears to rely, at least in part, on the degree to which the Eleventh Circuit agrees with Judge Walker\u2019s First Amendment reasoning and application.<\/p>\n\n\n\n Ironically, another name for HB 7 is the IFA or \u201cIndividual Freedoms Act.\u201d This is a very interesting name for a law that, at least for Judge Walker, elicited memories of dystopian works such as George Orwell\u2019s 1984, which he cited in the beginning of his opinion in Pernell<\/em>. It is also perhaps equally ironic for a law that was passed, at least in part, to prevent the spread of \u201cCultural Marxism\u201d in the United States to, in the eyes of at least one federal judge, ring in the same tune as big brother\u2019s totalitarian state of Oceania. Nevertheless, it will be very interesting to see what the future holds for the \u201cStop WOKE\u201d act as it reaches the Eleventh Circuit and, perhaps one day, the United States Supreme Court. <\/p>\n","protected":false},"excerpt":{"rendered":" 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 \u201cStop WOKE\u201d act) through Florida\u2019s state legislature. This law focused largely on the teaching of critical race theory, otherwise known as \u201cCRT,\u201d in …<\/a><\/p>\n","protected":false},"author":10,"featured_media":3902,"comment_status":"open","ping_status":"open","sticky":true,"template":"","format":"standard","meta":[],"categories":[396,10],"tags":[93,99,133,138,305,324],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/3900"}],"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=3900"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/3900\/revisions"}],"predecessor-version":[{"id":5274,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/3900\/revisions\/5274"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media\/3902"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media?parent=3900"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/categories?post=3900"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/tags?post=3900"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}![\"\"](\"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-content\/uploads\/sites\/8\/2023\/04\/ventura-blog.png?w=640\")
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