Big legal win in Florida moments ago

“Stop WOKE” stopped in court (again)

I suspect you may be losing faith in the judiciary recently. But a good news story today out of Florida. A federal appeals court affirmed 3-0 the injunction (lawyer for “you can’t do that”) against HB 7, the so-called “Stop WOKE Act.” 

This is big news and worth celebrating — even in a dark time.  

The details:

This case specifically addresses the parts of the law that make it illegal for businesses to require training that “espouses, promotes, advances, inculcates, or compels [employees] to believe” certain “concepts” about race, gender and sexual orientation but then says they can discuss the prohibited concepts as long as they do so objectively. According to the state, the intended target is diversity, equity and inclusion trainings by private employers. (Other litigation is challenging the law’s application to public colleges and universities.) 

But the law sweeps more broadly, potentially to Orwellian degrees. One example of potentially banned speech from one of our clients: a reflection at a staff meeting that only women have been asked to take notes and that male employees should volunteer more. 

The court ruled the law an unconstitutional speech code that violates the rights of the plaintiffs, in this case a group of businesses represented by Protect Democracy and our co-counsel Ropes & Gray, LLC. (This verdict is hardly surprising: in the trial court, the judge called it a “First Amendment upside down,” which I think is just about all you need to know.)

The context:

I want to note how this law can be hard to write about from a non-ideological, pro-democracy point of view because it’s buried in such an ugly culture war agenda. In some ways, it feels like that’s the idea: hiding weighty and consequential issues of democracy and authoritarianism under a veil of partisan politics. That way, any criticism or resistance — from the private sector, civil society or the courts — can be dismissed as equally ideological. 

But here’s the thing: ”Stop WOKE” isn’t just some partisan political stunt. This is a real law with real consequences for real people and for our democracy. I asked Shalini Goel Agarwal, Protect Democracy’s lead counsel on the case, how she thought about all of this, and how this case connects back to our democracy: 

Look, when it comes to the Constitution, speech codes are speech codes. And speech codes have no place in American society. Elected officials certainly have no business censoring the speech of business owners simply because they don’t agree with what’s being expressed. Barring employers from engaging in speech that powerful politicians don’t like is a move straight out of the authoritarian playbook. So yes, today is a good day for Floridians. But it is also a good day for the First Amendment and all of us who continue to live under its protection. 

This also isn’t just an issue of free speech (as if that weren’t enough). To me, whether this law is allowed to stand is a watershed moment in terms of the relationship between the state and the private sector in our democracy. As we know from other countries, one of the first things autocrats do in their attempt to consolidate power is to capture, muzzle and intimidate the private sector. (Charlie Sykes had an excellent piece in The Bulwark on this recently.) 

Genevieve Nadeau leads our team defending against authoritarian threats. She’s one of the authors of a recent report on Punishing Corporate Expression.

I asked her recently about HB7. She shared some thoughts on the standards we should use to evaluate whether government exercises of power in response to corporate speech are appropriate versus when they cross the line to abuses of power. 

Drawing the line between what we might think of as politics as usual and abusive exercises of state power in response to corporate speech can be difficult — but there are several factors that we suggest considering: What is the government intent and is there a legitimate public policy behind the government action? What is the likelihood of government officials making good on threats of retaliation for disfavored speech? Are individual businesses being targeted, or a more diverse set of businesses with diverse views? What is the overall history and context of the government exercise of power? But there is a line. And sometimes, as in this case, it is clear when the government crossed it.

The lawyers are still parsing through the details of the ruling (text of the opinion here), you may hear more from them soon. And this obviously isn’t the end of the process. But what is already clear is that the First Amendment does not yield to the tastes and whims of government officials. Whether they like it or not, these officials must respect speech in the workplace related to race, gender and sexual orientation. 

More information about this case here.