[“In the popular television series Stranger Things, the
‘upside down’ describes a parallel dimension containing a
distorted version of our world,” Judge Walker wrote. “Recently,
Florida has seemed like a First Amendment upside down.”]
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FEDERAL JUDGE BLOCKS DESANTIS’ ‘STOP-WOKE’ LAW  
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Andrew Atterbury
August 18, 2022
Politico
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_ “In the popular television series Stranger Things, the ‘upside
down’ describes a parallel dimension containing a distorted version
of our world,” Judge Walker wrote. “Recently, Florida has seemed
like a First Amendment upside down.” _

Ron DeSantis - Caricature, by DonkeyHotey (CC BY-SA 2.0)

 

Below, see key excerpts from the ruling -- moderator]

TALLAHASSEE, Fla. — A federal judge on Thursday blocked Florida from
enforcing a key aspect of the state’s new law restricting what Gov.
Ron DeSantis calls “woke” workplace trainings about race.

In a 44-page decision, Chief U.S. District Judge Mark Walker slammed
Florida’s “Stop-WOKE” Act, criticizing its policies as
“bordering on unintelligible” as he granted a temporary injunction
on the grounds the law violates the First Amendment.

The ruling was heralded as a “major victory for free speech” by
the group of businesses who sued the state, but that win could be
short lived with the DeSantis administration sure to appeal.

“In the popular television series Stranger Things, the ‘upside
down’ describes a parallel dimension containing a distorted version
of our world,” Walker, who was appointed by former President Barack
Obama, wrote. “Recently, Florida has seemed like a First Amendment
upside down.”

The “anti-woke” legislation, FL HB 7 (22R), or the Individual
Freedom Act, was passed earlier this year by Florida’s
Republican-led Legislature and backed by DeSantis. It expands
Florida’s anti-discrimination laws to prohibit schools and companies
from leveling guilt or blame to students and employees based on race
or sex, taking aim at lessons over issues like “white privilege”
by creating new protections for students and workers, including that a
person should not be instructed to “feel guilt, anguish, or any
other form of psychological distress” due to their race, color, sex
or national origin.

A group of businesses — honeymoon registry technology company
Honeyfund.com and Florida-based Ben & Jerry’s franchisee Primo
Tampa, along with workplace diversity consultancy Collective Concepts
and its co-founder Chevara Orrin — combined to challenge the
“anti-woke” policies in federal court. They argued that the new
law violates their freedom of speech, among other claims.

Attorneys for the companies, which are being represented by Protect
Democracy and law firm Ropes & Gray, contend that the new policies
force them to censor themselves “on important societal matters”
and “from engaging employees in robust discussion of ideas essential
for improving their workplaces.”

Walker on Thursday agreed with the companies, ordering the temporary
injunction to suspend a piece of the Stop-WOKE act as the legal battle
plays out. In the first challenge to HB 7, which is focusing on the
education side of the new law and is also being heard by Walker,
he denied the injunction but allowed the case to move forward with
a jury trial set for April.

Walker in his ruling Thursday denied applying the injunction to
DeSantis. Attorney General Ashley Moody and the commissioners of the
Florida Commission on Human Relations, however, were ordered not to
enforce the legislation.

“If Florida truly believes we live in a post-racial society, then
let it make its case,” Walker wrote.

“But it cannot win the argument by muzzling its opponents. Because,
without justification, the (bill) attacks ideas, not conduct, (the
businesses) are substantially likely to succeed on the merits of this
lawsuit.”

In a previous unrelated case
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Walker had struck down key provisions of Florida’s 2021 election law
pushed by DeSantis and ruled the state must get court approval for a
decade before it enacted further changes. The 11th Circuit Court of
Appeals, however, blocked his ruling from going forward.

Attorneys representing the companies said they expect to win the trial
and see the law “permanently overturned.”

“It is a direct attack on American free speech values as well as on
free enterprise in Florida.” Shalini Goel Agarwal, counsel at
Protect Democracy, said in a statement.

Spokespeople with the DeSantis administration and Moody’s office did
not immediately respond to request for comment about Walker’s
ruling. The state is likely to appeal the ruling, which could lead to
the injunction being blocked by an appeals court.

Attorneys for the state and DeSantis in court pushed for Walker
to throw out the case and dismiss the Republican governor as a
defendant in the lawsuit, arguing that the “anti-woke” law
restricts no speech and only regulates that employers can’t force
employees to listen to “certain speech against their will” at the
risk of losing their jobs.

The ACLU, ACLU of Florida and Legal Defense Fund on Thursday filed
another lawsuit [[link removed]] in
federal challenging the “anti-woke” legislation on behalf of
students and educators.

Excerpts from the ruling by Chief United States District Judge Mark E.
Walker
[Excerpted by xxxxxx -- moderator]

In the popular television series Stranger Things, the “upside
down” describes a parallel dimension containing a distorted version
of our world. Recently, Florida has seemed like a First Amendment
upside down. Normally, the First Amendment bars the state from
burdening speech, while private actors may burden speech freely. But
in Florida, the First Amendment apparently bars private actors from
burdening speech, while the state may burden speech freely.

Now, like the heroine in Stranger Things, this Court is once again
asked to pull Florida back from the upside down. Before this Court is
a motion for a preliminary injunction, asking this Court to enjoin a
host of Government officials from enforcing portions of the Individual
Freedom Act—a law that prohibits employers from endorsing any of
eight concepts during any mandatory employment activity. Because the
challenged provision of the Act is a naked viewpoint-based regulation
on speech that does not pass strict scrutiny, Plaintiffs’ motion for
a preliminary injunction, ECF No. 18, is GRANTED in part.

***

Florida’s Legislators may well find Plaintiffs’ speech
“repugnant.” But under our constitutional scheme, the “remedy”
for repugnant speech “is more speech, not enforced silence.”
Indeed, “it is the purpose of the First Amendment to preserve an
uninhibited marketplace of ideas in which truth will ultimately
prevail.” 

***

[I]magine an employer, during a mandatory seminar on dispute
resolution, cites the civil disobedience exemplified by Martin Luther
King Jr. and Mahatma Gandhi as a peaceful, preferred approach. Has
that employer “inculcated” employees with the belief that Black
and Asian people are morally superior to White people? If an employer,
during sexual harassment training, cites statistics that women are the
most common victims of workplace sexual harassment and only provides
examples of men sexually harassing women, have they “advanced” the
belief that women are morally superior to men? Or, by training its
employees on Holocaust awareness, does the beloved softshell jacket
company Summit Ice “espouse” the view that Jewish people are
morally superior to Gentiles? The IFA offers no guidance on these
questions and many others, and the lack of explicit standards
circumscribing concept 1 invites “arbitrary and discriminatory
enforcement.”

***

In the end, Defendants suggest that there is nothing to see here. They
say the IFA does nothing more than ban race discrimination in
employment. But to compare the diversity trainings Plaintiffs wish to
hold to true hostile work environments rings hollow. Worse still,
“it trivializes the freedom protected” by Title VII and the FCRA
“to suggest that” the two are the same.

Just imagine two scenarios. In the first scenario, a Black employee
complains about a mandatory safety training scheduled on Juneteenth.
Then, at a mandatory training the day before Juneteenth, “to the
surprise of the employees in attendance, a white woman in a black
gorilla suit enter[s] the meeting.” As one of the managers blocks
the only exit, the woman does “Tarzan yells and repeatedly refer[s]
in a suggestive manner to “big black lips,’ ‘big black butt,’
and bananas.” As the woman dances suggestively on one of the Black
employees who had complained, another manager leans in and says:
“Here’s your Juneteenth.” In the second scenario, a company
directs a White employee to attend a mandatory training in which
employees watch “a video about violence committed against Black
people in the United States over the centuries.” After the video,
the presenter defines “Black rage” —“resistance towards
oppressive people, practices, structures, and systems”— and
“White Humility”—“a reflective practice that helps white
people develop [the] capacity to interrupt white supremacy’—and
asks Black and White participants to discuss them.

These two scenarios, under Defendants’ theory, are
indistinguishable. Indeed, Defendants say, to hold that the state may
not ban the latter scenario is to hold that it may not ban the former.
“If the law supposes that, the law is an ass, an idiot.” Charles
Dickens, Oliver Twist 463 (3d ed. The New American Library 1961). But
the law is neither an ass nor an idiot. It can tell the difference.

Telling your employees that concepts such as “normal” or
“professional” are imbued with historically based racial biases is
not—and it pains this Court to have to say this—the same as
trapping Black employees in a room while a woman in a gorilla suit
puts on a retaliatory, racially inflammatory performance the day
before a holiday celebrating the end of slavery. Rather, it is speech
protected by the First Amendment. 

_Mark E. Walker
Chief United States District Judge _

* Ron DeSantis
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* Florida
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* Free Speech
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* First Amendment
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