You know a law is really bad when a federal judge cites a science fiction series on Netflix to describe it.
“Recently, Florida has seemed like a First Amendment upside down,” U.S. District Judge Mark Walker wrote in an injunction released Thursday blocking key portions of Florida’s “Stop WOKE Act.” It bans employers from requiring employees to go through diversity training — or any “required activity” that offends the sensibilities of Republican lawmakers and Gov. Ron DeSantis when it comes to conversations about race.
The “upside down” is the parallel dimension on the show “Stranger Things” that contains a distorted version of our world overrun by alien vines, dark and creepy — a good analogy for what Florida’s political landscape looks like nowadays. It’s a state where the governor professes to defend “freedom” while muzzling detractors and companies that disagree with him.
That irony was not lost on Walker, who declared that the law “is barring speech by prohibiting discussion of certain concepts in training programs.” Specifically, the law prohibits private companies from promoting eight concepts to which DeSantis gives the blanket label “critical race theory” — an academic theory that conservatives have appropriated to mean “woke” efforts to make white people feel guilty about slavery and racism. For example, the statute prohibits a corporate diversity trainer from saying that, “An individual, by virtue of his or her race, color, sex or national origin, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin.”
Of course, no single individual should be held responsible for the country’s troubled history with racism, but should that be enshrined in law, cutting off valuable discussion? The government has no business telling a private company that it can’t use its apparatus to have employees participate in honest, but uncomfortable, conversations about racism and their biases as it pertains to their workplace.
Walker gives the example of a nonprofit whose mission is to promote the idea white privilege exists but that “could not hold a required meeting at which it endorses the concept of white privilege. But a nonprofit holding the opposite view could freely hold meetings criticizing the concept of white privilege.”
The state is all but certain to appeal Walker’s ruling, and there’s a likelihood that a conservative appeals court might reverse it. The ruling came out on the same day DeSantis scored a political and potentially legal victory when he announced the arrest of 20 people on charges of voting illegally. That helps him justify the spending of taxpayer dollars for the creation of a new election crimes office, despite his own assertion that Florida’s 2020 elections were a success.
Taxpayers will also footing the bill for the state’s defense in another First Amendment lawsuit. On Wednesday, ousted Hillsborough State Attorney Andrew Warren filed a federal lawsuit alleging his removal from office violates his freedom of speech and represents overreach by the governor. DeSantis removed Warren for not prosecuting certain crimes and signing a letter— along with dozens of other prosecutors from across the country — pledging to refrain from prosecuting people who seek or provide abortions. Warren also signed another letter vowing “to use our discretion and not promote the criminalization of gender-affirming healthcare or transgender people.”
State attorneys are elected officials — Warren was elected twice — and have discretion over what cases they will pursue. It was imprudent for Warren to sign a pledge that shoehorns him into having a blanket policy on which laws he will enforce. But no abortion cases have gone before his office, and Florida’s 15-week abortion ban is being challenged in court for allegedly violating the state Constitution. And there are zero laws on the books banning transgender care.
Warren’s lawsuit will test how far DeSantis can push the boundaries of his authority — can he remove officials simply over what they say?
“The First Amendment to the United States Constitution requires that elected officials ‘be given the widest latitude to express their views on issues of policy,’” Warren wrote in his lawsuit, citing case law.
Testing legal limits has been the M.O. of DeSantis and his Republican allies, resulting in the courts blocking some of their laws for violating the Constitution. One of those laws fined social media companies that remove political candidates from their platforms.
We don’t put it past the governor that fighting Warren in court has been his plan all along. The outcome of this lawsuit will either unleash a governor willing to break with norms to control all levels of government or it will show that not even a governor with strongman aspirations can bend the rules to his benefit. With the legislative branch under DeSantis’ thumb, the judiciary might be the only check left on a powerful governor.
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