The U.S. Court of Appeals for the Eleventh Circuit ruled last week that Florida’s “Stop WOKE” law barring professors from discussing topics related to race and gender in the classroom violates the First Amendment’s guarantee of freedom of speech.
The Florida law “is a naked prohibition on disfavored speech” and the First Amendment precludes the government from prohibiting the expression of an idea simply because society finds it offensive or disagreeable, U.S. Circuit Judge Britt Grant, an appointee of Donald Trump, wrote on behalf of the majority, joined by Senior U.S. Circuit Judge Charles Wilson, a Bill Clinton appointee.
The “First Amendment rests instead on a simple truth: The people lose whenever the government transforms prevailing opinion into enforced conformity.”
A “Blacklist of Ideas”
Florida Gov. Ron DeSantis signed the Individual Freedom Act (also known as the Stop WOKE Act) into law in 2022. The law barred any “training or instruction that espouses, promotes, advances, inculcates, or compels” students at public colleges and universities to believe any of eight concepts.
This “blacklist of ideas,” as an attorney for the plaintiffs called it, includes the suggestion that members of one race, color, sex, or national origin are morally superior to others, that a person is “inherently racist, sexist or oppressive” by virtue of his or her race or sex, or that people should feel “guilt, anguish, or other forms of psychological distress” because of actions committed in the past by other members of the same race.
Gov. DeSantis said the law would protect college students from “indoctrination,” but opponents asserted it “was really an attempt to quash candid teaching about historic racial horrors in the U.S., including slavery and the Jim Crow era,” CBS News reported.
The law imposed steep penalties for endorsing disfavored viewpoints inside—and potentially outside—the classroom. Both individual professors and universities faced “dramatic financial consequences for noncompliance,” the court explained, citing the example of the University of South Florida, which stood to lose just over $73 million during the 2021–2022 academic year.
Students can turn in professors for violating the law, the court wrote, triggering investigations that can lead to termination and other disciplinary measures even for professors who comply by changing their coursework.
Students, professors, and a student organization at six of Florida’s public universities sued the Florida Board of Governors, arguing that the law violates their First Amendment rights because it suppresses politically disfavored viewpoints. The district court agreed and enjoined state officials from enforcing the law. Florida appealed to the Eleventh Circuit.
The Essentiality of Freedom
In response to the lawsuit, the court recounted, the State proposed a new rule that would remove all free speech protections from the classroom—if the government pays a professor’s salary, it has total control over her classroom speech. “Because the government pays the professors’ salaries, Florida says, their speech is the State’s speech.”
The court’s response: “Emphatically no.”
“Florida’s salary-for-speech rule is a breathtaking assertion of power to ban unpopular ideas from public discourse in the very places the State’s own statutes recognize as centers of inquiry—classrooms where students are trusted to puzzle through ideas that are good and bad, easy and hard, ideally getting ever closer to the truth,” the court wrote.
Florida’s proposed rule offends our nation’s critically important tradition of academic freedom, the court found.
“Time and again, the Supreme Court has made clear that teachers do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the court wrote (internal quotation marks omitted). “The essentiality of freedom in the community of American universities is almost self-evident…To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.”
Florida’s restrictions are, as the State admits, an attempt to force uniformity of thought on students by curtailing the free exchange of ideas in universities—the very environments traditionally regarded as laboratories for expression and truth seeking…Compelling certain beliefs by suppressing “individual thought and expression” is “especially” dangerous in the classroom context, “where the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition.”
Florida offered two other justifications for the law, both of which the court found lacking.
The first—a “weak” claim that the law is an anti-discrimination measure—was rejected because, the court noted, the law does not limit actual discrimination of any kind. “It instead assumes that mere exposure to what the State views as the wrong viewpoint is itself a serious harm,” the court wrote.
But, the court explained, “hearing an idea you disagree with is not discrimination; it is an opportunity to come up with a better idea, or maybe even change your mind.”
The State also asserted the law protects its “most cherished ideals.” But the court rejected that justification, too. “Though the government has plenty of ways to promote its own viewpoint, puppeteering every university professor in the state is not one of them,” the court said.
“Forcing an official government line—in a college classroom of all places—is exactly the ‘pall of orthodoxy’ that the First Amendment will not tolerate,” the court found.
The Greatest First Amendment Sin
Viewpoint-based restrictions on speech are “the greatest First Amendment sin,” the court concluded. Laws designed to compel or ban a set of beliefs are dangerous—especially in the classroom context. “When the government seeks not just to restrict speech based on its subject matter, but also seeks to dictate what particular opinion or perspective individuals may express on that subject, the violation of the First Amendment is all the more blatant,” the court wrote.
The federal appeals court held that Florida’s law is “an unconstitutional direct penalization of protected speech” that violates the First Amendment. It upheld the district court’s injunction barring enforcement of the law.
“We are thrilled the court has stopped the erasure of topics that have real implications for our students, allowing them to learn, discuss and develop tools for combatting the complex issue of racism in our country without being gagged by those who would dictate that only state-approved thought may be promoted,” Florida A&M University College of Law professor and named plaintiff LeRoy Pernell said in a statement.
“The Stop W.O.K.E Act is an egregious example of widespread efforts across the country, most notably in Florida, to force the public higher education system to adopt the viewpoints of those in power,” said Jin Hee Lee, director of strategic initiatives at the NAACP Legal Defense Fund, which filed the Pernell v. Lamb lawsuit together with the American Civil Liberties Union, ACLU of Florida, and the law firm Ballard Spahr.
Ms. Lee said the decision—the first in which an appellate court has addressed the constitutionality of laws restricting speech in college classrooms—makes clear that “Florida cannot actively erase their history of discrimination or their lived experiences without running afoul of our Constitution.”