A federal district court in Florida has preliminarily enjoined enforcement of a Florida law known as the Stop WOKE Act, finding that the 2022 amendment to the state’s civil rights law violates the First Amendment.
The decision at least temporarily squelches the “Individual Freedom Act,” also known as the Stop WOKE Act, which bans employers from promoting what the ruling calls “forbidden concepts” when delivering required employee training. It immediately impacts Florida employers and trainers with respect to the delivery of diversity, equity and inclusion training, enabling them to conduct such training without fear of violating the act.
What does the ‘Stop WOKE Act’ say?
The law defines discrimination to include subjecting employees to “training, instruction or any other required activity” that endorses a number of concepts set forth in the law.
Notable among them:
- Members of one race, color, sex or national origin are morally superior.
- An individual is inherently “racist, sexist, or oppressive” simply by virtue of their race, color, sex or national origin.
- Moral character is determined by one race, color, sex or national origin.
- By virtue of their race, color, sex or national origin, an individual bears responsibility for actions committed in the past by other members of the same race, color, sex or national origin.
- Individuals, by virtue of their race, color, sex or national origin, should be discriminated against to achieve diversity, equity or inclusion.
Those and similar concepts can be discussed as part of a course of training or instruction, the Stop WOKE Act adds, as long as the training or instruction is provided “in an objective manner.”
Employers, trainers object
Two Florida employers and diversity/equity consultants sued to challenge the law, saying it violates the First Amendment because it is an unjustified viewpoint-based restriction on their speech. They further claimed in their suit that the law is unconstitutionally vague and overbroad.
The plaintiffs asked the court to issue a preliminary injunction that would block the law’s enforcement. Named as defendants are Gov. Ron DeSantis, the state’s attorney general, and the commissioners of the state’s Commission on Human Relations.
The court explained that to get the requested injunction, the plaintiffs had to show:
- They are likely to succeed on the merits
- They would suffer irreparably injury if the request was denied
- The injury they would suffer without an injunction would be greater than any damage it would do to the defendants
- The injunction would be consistent with the public interest.
The employers here alleged that they want to hold DEI training and plan to alter it to avoid violating the act. The court said they had standing to sue – except with respect to DeSantis — because they showed an injury in fact that was traceable to the defendants and redressable via a favorable court ruling. DeSantis is off the hook, it said, because the plaintiffs did not show that their injuries are traceable to him or redressable by an injunction against him. Similarly, it concluded that the trainers had standing to sue all defendants except DeSantis.
On the merits, the court said the law clearly regulates speech, rejecting the defense argument that it restricts conduct only.
The defendants argued that even if the law regulates speech, it survives constitutional scrutiny.
As a viewpoint-based speech regulation, the law is permissible only if it is narrowly tailored to serve a compelling state interest, the court explained. This is a very tough standard to meet, the court explained, adding that “the [statute] is no unicorn” when it comes to meeting this stringent test.
The defendants argued that Florida has a compelling interest in preventing employers from forcing what the state believes is “repugnant” on a “captive audience” of employees. But the state does not have the right to censor speech just because it finds the speech to be repugnant, the court said. Moreover, it added, the statute is not narrowly tailored.
The statute violates the First Amendment because it is not narrowly tailored, the court ruled. In addition, it determined that the statute is impermissibly vague.
The court granted the motion for a preliminary injunction.
What it means — and what’s next
The plaintiffs have won a battle in the case, but the war is not over. Instead, further review by a federal appeals court is likely. For now, however, employers and training providers can proceed with planned DEI training without fear of violating the state’s civil rights act.
More broadly, time will tell whether other states will follow Florida’s lead by enacting similar legislation. The ultimate outcome of this case is sure to affect the likelihood that similar measures will follow.
Honeyfund.com, Inc. v. DeSantis, No. 4:22cv227-MW/MAF (N.D. Fla. 8/18/22).