[[link removed]]

THE FREEDOM TO BE WOKE  
[[link removed]]


 

David Cole
July 12, 2026
The New York Review of Books
[[link removed]]

*
[[link removed]]
*
*
[[link removed]]

_ A court ruling striking down Florida’s Stop WOKE Act is both a
major affirmation of academic freedom and a window into the
free-speech debates dividing the right. _

Perkins Harnly: Rural School Room, 1900, 1935/1942, National Gallery
of Art

 

In the never-ending debate about freedom of speech on college
campuses, conservatives have long condemned “cancel culture,” an
attitude of intolerance toward conservative ideas. They are not wrong
that liberal and left-wing views predominate at many top universities,
and that many students and some faculty resist exposure to ideas they
oppose. And to the extent that “wokeness” implies that only
certain views are permissible on sensitive subjects such as race and
sexual orientation, conservatives rightly complain that the concept is
at odds with basic commitments to free expression and inquiry that
should govern in the university setting.

The response to a culture of intolerance by students and faculty,
however, should not be official intolerance by the state. Yet that is
exactly what Florida did when, in 2022, it enacted the Stop WOKE Act,
a law aimed at excising what its proponents call “critical race
theory” from state university classrooms. The law prohibits public
university professors and K-12 teachers from endorsing eight
proscribed ideas about race, sex, and national origin, including the
view that people of a particular race should “receive adverse
treatment to achieve diversity, equity, or inclusion.” Under that
provision, a professor could not express his opinion that Justice
Sonia Sotomayor’s dissent in the Supreme Court’s decision striking
down affirmative action at Harvard had the better of the argument.

So conservatives and liberals alike should be cheering the decision on
July 7 from the US Court of Appeals for the Eleventh Circuit declaring
unconstitutional the Stop WOKE Act’s application to university
professors. (As national legal director of the ACLU, I worked on this
case for the challengers.) Yet the case divided two Trump appointees.
Judge Britt Grant, a former clerk to then-Judge Brett Kavanaugh, wrote
the majority opinion, and Judge Barbara Lagoa filed an impassioned
dissent. (A Clinton appointee, Judge Charles Wilson, sided with
Grant.) The decision, the most important affirmation of academic
freedom in decades, reflects a fundamental divide among conservatives
on free speech—between those who are committed to the ideal across
the board, and those who champion it for ideas they approve but are
only too happy to silence speech they disfavor.

Florida’s governor, Ron DeSantis, and its legislature clearly fall
in the latter camp. Over the past five years they have taken a range
of steps to assert unprecedented political control over the state’s
institutions of higher education: filling the Board of Governors,
which oversees the university system, with DeSantis cronies and
Republican politicians; forbidding any Diversity, Equity, and
Inclusion (DEI) programs; requiring tenured professors to undergo
five-year reviews conducted not by their peers but by the school’s
politicized administration; and removing certain courses from required
curricula, including Introduction to Sociology.

The Stop WOKE Act is the capstone of this scheme to remake public
universities along political lines. In addition to the notion that
affirmative action may be justified, the eight “concepts” the law
proscribes include the view that “members of one race, color,
national origin, or sex cannot and should not attempt to treat others
without respect to race, color, national origin, or sex.” That
provision could prohibit teaching about implicit bias and the
cognitive inevitability of stereotyping. Another prohibits any
endorsement of the concept that “a person, by virtue of his or her
race, color, sex, or national origin, bears personal responsibility
for and must feel guilt, anguish, or other forms of psychological
distress because of actions, in which the person played no part,
committed in the past by other members of the same race, color,
national origin, or sex.” Efforts to teach about the continuing
effects of the legacy of slavery and discrimination, or the idea that
reparations may be owed, could well violate that ban. In all, the
prohibitions seem designed to chill almost any effort to discuss,
among other things, the nation’s obligation to address the racism on
which it was founded.

After a group of professors sued, Florida defended the law by arguing
that when public university professors speak on the job they are
speaking for the state, and therefore the government can control what
they say. (The case did not present the issue of the law’s validity
in the K-12 setting.) It is generally true that public employers can
direct what their employees say when performing their jobs. For
example, the governor can require his press secretary to defend his
views, and can fire her if she does otherwise. But public university
professors are different. No one thinks that a professor teaching
organic chemistry, French poetry, or Enlightenment philosophy at the
University of Florida is expressing the state’s official views on
these subjects (if it even has any). It’s no different for those
teaching law, history, or political science. University professors are
not mouthpieces for government propaganda. 

This does not mean that professors are free to say whatever they want
in the classroom. Public universities can determine the content of
their curricula and enforce professional standards. If a professor
refuses to teach the subject she is assigned, or harasses a student,
the university can discipline the teacher. Similarly, there is no
right to teach views contrary to professional standards—the idea
that the Holocaust did not happen, say, or that the earth is flat. But
defending the concept of affirmative action, teaching about implicit
bias, or maintaining that reparations are owed to the descendants of
enslaved people is protected speech. And the state has no interest in
micromanaging the viewpoint a professor expresses on the subjects she
is hired to teach, so long as those views are consistent with
professional standards.

Academic freedom, which the Supreme Court has described as a
“special concern” of the First Amendment, protects universities
and their faculty from partisan interference and political control.
The principle recognizes that free inquiry is essential to the search
for truth, and therefore forbids the state from casting a “pall of
orthodoxy over the classroom” by dictating the views a professor can
or cannot express within her assigned subject. This protects private
universities from untoward meddling by politicians. But it is just as
essential in public universities. Indeed, one of the Supreme Court’s
most significant academic freedom cases, _Keyishian _v_. Board of
Regents _(1967), struck down a New York law barring Communists from
teaching in state universities.

Florida’s position, if accepted, would be the end of academic
freedom in public colleges, because no university can function as a
center of learning if politicians micromanage what faculty can say to
their students in class. As Grant put it,

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.

Judge Lagoa’s dissent would permit politicians to take over those
classrooms for their own ends. She questions whether the First
Amendment protects academic freedom at all, because she finds little
evidence that the framers thought about it. But if one were to limit
the First Amendment to what was protected at the founding, it would be
unrecognizable. No constitutional doctrine is less “originalist”
than the First Amendment: the standard account maintains that at the
time of the founding it prohibited “prior restraints” on speech
but placed few if any limits on the state’s ability to punish speech
after the fact; it also deemed any speech that had even a “bad
tendency” to lead to lawless conduct wholly unprotected.

Even if professors have some free speech rights, Lagoa insists that
the state’s authority to control speech is “at its zenith in its
public classrooms, including the classrooms in its public
universities.” In her view, the state’s interest always outweighs
the interest of faculty members in pursuing their subjects free of
political constraints: “professors have no First Amendment right to
overrule their employer’s judgment concerning the content of
classroom instruction.” On that view, a law requiring American
history professors to defend the institution of slavery or political
science professors not to criticize the incumbent administration would
be perfectly constitutional. The fact that Lagoa has to advance such
extreme positions to defend the law only underscores what a
fundamental threat to academic freedom the Stop WOKE Act presents.

Those who rightly decry “cancel culture” should be, if anything,
even more disturbed by this law, which does not merely create a
“culture” of intolerance but amounts to official state censorship.
Yet DeSantis was not the only outspoken critic of cancel culture to
champion prohibitions like those in the Stop WOKE Act: conservatives
have pushed copycat laws across the country, from Oklahoma to New
Hampshire.

The Trump administration is guilty of the same double standards. Trump
has frequently condemned “cancel culture.” In his first term he
issued an executive order conditioning federal funding to universities
on their commitments to free speech and free inquiry, stating that
“my Administration seeks to promote free and open debate on college
and university campuses.” When he regained the presidency in 2025 he
issued an executive order on his first day in office condemning his
predecessor’s efforts to suppress disinformation and proclaiming his
commitment to “restoring free speech.”

Yet his administration has taken unprecedented steps to punish the
speech Trump opposes
[[link removed]]—denying
access to federal buildings to law firms that filed suits or hired
attorneys Trump did not like; expelling the Associated Press from the
Oval Office press pool for failing to call the Gulf of Mexico the
“Gulf of America”; suing CBS for editing an interview with Kamala
Harris in a way that displeased him; barring access to the Pentagon to
reporters unless they agree not to report anything the so-called
Department of War does not approve; and withdrawing funding from
colleges and universities for, among other things, conducting DEI
trainings and tolerating students who exercised their free speech
rights to protest Israel’s attacks on Gaza.

Judge Grant offered a different kind of conservatism on speech—one
that recognizes the value of free speech regardless of the political
valence of the speech at issue, and that values academic freedom
whether or not one agrees with the particular views under attack. As
the Supreme Court has repeatedly said, “If there is a bedrock
principle underlying the First Amendment, it is that the government
may not prohibit the expression of an idea simply because society
finds the idea itself offensive or disagreeable.” Liberals, too,
have not always heeded this warning: calls to regulate “hate
speech” and objections to protecting corporate speech also sometimes
have a free-speech-for-me-but-not-for-thee ring to them. Many
conservatives find the ideas Florida and Trump have sought to punish
offensive; many progressives find the ideas that Florida and Trump
advance equally offensive. But the First Amendment protects both.
“Whether Florida is right or wrong about how dangerous these
viewpoints are is irrelevant, at least to our inquiry as a court,”
Grant wrote. “No matter how controversial the ideas, allowing the
government to set the terms of the debate is poison, not antidote.”

_DAVID COLE is the Honorable George J. Mitchell Professor in Law and
Public Policy at the Georgetown University Law Center and the former
National Legal Director of the ACLU._

_THE NEW YORK REVIEW was launched during the New York City newspaper
strike of 1963, when the magazine’s founding editors, Robert Silvers
and Barbara Epstein, alongside Jason Epstein, Robert Lowell, and
Elizabeth Hardwick, decided to start a new kind of publication—one
in which the most interesting, lively, and qualified minds of the time
could write about current books and issues in depth. _

_Readers responded by buying almost every copy and writing thousands
of letters to demand that the Review continue. From the beginning,
the editors were determined that the Review should be an independent
publication; it began life as an editorial voice beholden to no one,
and it remains so today._

_Subscribe to the New York Review of Books_
[[link removed]]

* Freedom of Speech
[[link removed]]
* woke
[[link removed]]
* Education
[[link removed]]
* universities
[[link removed]]
* race
[[link removed]]
* sex
[[link removed]]
* national origin
[[link removed]]
* Florida
[[link removed]]
* Academic Freedom
[[link removed]]
* First Amendment
[[link removed]]

*
[[link removed]]
*
*
[[link removed]]

 

 

 

INTERPRET THE WORLD AND CHANGE IT

 

 

Submit via web
[[link removed]]

Submit via email
Frequently asked questions
[[link removed]]
Manage subscription
[[link removed]]
Visit xxxxxx.org
[[link removed]]

Bluesky [[link removed]]

Facebook [[link removed]]

 




[link removed]

To unsubscribe, click the following link:
[link removed]