Judges Skeptical Florida ‘Woke’ Ban Can Dodge Free Speech Claims

Florida’s defense of its “anti-woke” law restricting workplace diversity training met with skepticism from a panel of federal appellate judges, who questioned how attorneys for the state could consider the statute a limit on employers’ conduct rather than a restriction on speech.

Much of the 2022 Florida law has been blocked since last year when a federal judge issued a pair of injunctions and found that parts of the statute likely violate the First Amendment’s free speech protections.

The US Court of Appeals for the Eleventh Circuit heard oral arguments in Atlanta on Thursday in the state’s attempt to overturn the injunction concerning DEI training restrictions at work. The state has a separate appeal pending related to the university instruction limitations.

Gov. Ron DeSantis (R) has been a key champion of the Florida measure initially named the “Stop WOKE Act.” While it mirrored laws enacted by other state legislatures that ban the teaching of critical race theory in school classrooms, the law went a step further by also restricting how businesses train their employees.

The Florida measure prohibits the teaching of eight specific concepts related to race and gender, both in mandatory workplace training and in university classrooms. The state says it’s aimed at preventing forced indoctrination of employees with divisive ideas, while the law’s opponents say it unconstitutionally bars the teaching of concepts such as implicit bias and systemic racism.

Judges Andrew L. Brasher and Britt C. Grant, both Trump-appointed judges, heard Thursday’s arguments alongside Clinton appointee Judge Charles R. Wilson.

An attorney representing the state argued the plaintiffs have no First Amendment claim because the law regulates a company’s conduct, not speech.

Employers still can say anything they want without violating the statute, but it bars them from mandating that employees attend meetings where the specifically prohibited concepts are endorsed, said John D. Ohlendorf, an attorney with Cooper & Kirk PLLC in Washington, who argued for the state officials named as defendants.

“The resulting burden is on the conduct, not the speech,” Ohlendorf told the judges. “The conduct is not being able to terminate the employee for not attending the seminar.”

Grant questioned this reading of the law.

“You can’t restrict someone based on their viewpoint,” she told Ohlendorf. Employers can and routinely do require employees to attend meetings as a condition of their job, she said.

“You can make them listen to literally anything except those topics” if the Florida law is upheld, Grant said.

‘Hostile Work Environment’

The contested Florida law prohibits mandatory training sessions that espouse concepts including that members of one race or sex are inherently racist or sexist, that a person’s status as either privileged or oppressed is determined by their race or sex, and that a person should feel guilt over the past actions of other people who share their same race or sex.

US District Judge Mark E. Walker in Tallahassee, who blocked both the workplace and university classroom portions of the Florida law last year—but not the K-12 classroom restrictions—characterized the state’s restrictions on teaching of diversity, equity, and inclusion concepts as “dystopian” and reminiscent of life in the “upside down” from the Netflix series “Stranger Things.”

The Florida legislature added the restrictions to the state’s anti-discrimination laws, allowing employees or students to file complaints with the state’s civil rights agency and allowing the agency to issue penalties.

Given the nature of that enforcement mechanism, “it would seem like it’s the speech itself and not the conduct that triggers the penalty,” Wilson said Thursday.

Brasher questioned whether, in the plaintiffs’ view, the state could take other approaches to limiting what it sees as racially offensive messages in the workplace without running afoul of the First Amendment.

For example, he asked if the state could specifically restrict the use of words and phrases that Eleventh Circuit case law has found create a hostile work environment in prior cases brought under Title VII of the 1964 Civil Rights Act.

Hostile work environment cases require an individual assessment of how certain speech and actions in the workplace affect the employee who files the complaint, said Douglas Hallward-Driemeier, an attorney with Ropes & Gray LLP in Washington who argued for the plaintiffs alongside Shalini Goel Agarwal of the legal nonprofit Protect Democracy.

“Hostile work environment is only actionable when it is so severe and pervasive that it amounts to a change in the terms and conditions of employment,” Driemeier said.

The plaintiffs also argued the Florida law is unconstitutional under the 14th Amendment for being vague and overly broad. In particular, a provision that says the restricted concepts can be discussed in an objective way as long the employer doesn’t endorse them is highly subjective, Agarwal said.

“It’s too hard for a reasonable employer to decide in advance what I’m allowed to say and what I’m not,” she said.

If the court were to treat the Florida law as a restriction on speech, Brasher asked Ohlendorf for his best argument that it would still be constitutionally defensible.

The law is aimed at the same goals as Title VII, “keeping racist, sexist, discriminatory speech out of the workplace,” Ohlendorf responded.

Grant’s questioning included a series of hypotheticals that probed the extent to which a state law could limit workplace meetings and communications.

“How do you train an employee if they aren’t required to go?” Grant asked Ohlendorf. “I have a lot of seminars in my life that I’d love to skip.”

Attorneys from Protect Democracy and Ropes & Gray LLP represent the plaintiffs.

Attorneys from the Florida attorney general’s office and Cooper & Kirk PLLC represent the state officials named as defendants.

The case is Honeyfund.com Inc. v. Governor, State of Fla., 11th Cir., No. 22-13135, oral arguments held 8/24/23