STOP WOKE act and and racial harassment ban

[lfromnj]

https://www.cbsnews.com/amp/miami/news/battles-continue-as-stop-woke-act-law-takes-effect/#app

Florida passed this law heavily restricting companies from certain DEI trainings . Specifically the part regarding private companies amendended the Florida anti racial harassment clause.  How will this go in court .

[brucejoel99]

Public school curriculums, & therefore what teachers can teach, are government speech & therefore regulatable here, but 'mak[ing] it illegal to compel people in [private-sector] workplace training to believe that an "individual, 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 individual played no part, committed in the past by other members of the same race, color, sex, or national origin"' arguably constitutes the enactment of unconstitutional viewpoint-based restrictions on the speech of Floridian business owners & employers operating in the state, in violation of their 1A rights. Moreover, the vague terms & definitions employed, if they don't amount to an explicit & definite statement of what conduct is punishable, could always be called out for being unconstitutionally vague too, regardless of any public/private distinction.

[brucejoel99]

Public school curriculums, & therefore what teachers can teach, are government speech & therefore regulatable here, but 'mak[ing] it illegal to compel people in [private-sector] workplace training to believe that an "individual, 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 individual played no part, committed in the past by other members of the same race, color, sex, or national origin"' arguably constitutes the enactment of unconstitutional viewpoint-based restrictions on the speech of Floridian business owners & employers operating in the state, in violation of their 1A rights. Moreover, the vague terms & definitions employed, if they don't amount to an explicit & definite statement of what conduct is punishable, could always be called out for being unconstitutionally vague too, regardless of any public/private distinction.

Wheels of justice turning as a 2-1 conservative 11th Circ. panel just unanimously upheld the lower-court ruling that overturned the Stop WOKE Act for unconstitutionally infringing on private business owners' free speech rights:

Florida's law, the Individual Freedom Act, bans certain mandatory workplace trainings. Fla. Stat. § 760.10[8](a). The Act says employers cannot subject "any individual, as a condition of employment," to "training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels" a certain set of beliefs. Id. It goes on to list the rejected ideas, all of which relate to race, color, sex, or national origin.

[...]

The ideas targeted in Florida's Individual Freedom Act are embraced in some communities, and despised in others. But no matter what these ideas are really worth, they define the contours of the Act. By limiting its restrictions to a list of ideas designated as offensive, the Act targets speech based on its content. And by barring only speech that endorses any of those ideas, it penalizes certain viewpoints—the greatest First Amendment sin. Florida concedes as much, even admitting that the Act rejects certain viewpoints. But the state insists that what looks like a ban on speech is really a ban on conduct because only the meetings are being restricted, not the speech.

We have rejected similar conduct-not-speech claims before. See, e.g., Otto, 981 F.3d at 861, 865–66; Wollschlaeger v. Governor, Florida, 848 F.3d 1293, 1308 (11th Cir. 2017) (en banc). So too here. The only way to discern which mandatory trainings are prohibited is to find out whether the speaker disagrees with Florida. That is a classic—and disallowed—regulation of speech.

[...]

In a last-ditch effort, Florida ties its Act to Title VII. According to Florida, because the Individual Freedom Act, like Title VII, seeks to regulate discrimination, the two statutes rise and fall together—if one is unconstitutional, the other must be too. We disagree. Having similar asserted purposes does not make the two laws the same.

Title VII makes it unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin"; it never mentions speech or content to define discrimination. 42 U.S.C. § 2000e-2(a)(1). While that law may have an incidental effect on speech, it is not directed at it. See R.A.V., 505 U.S. at 389; Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808–09 (11th Cir. 2010) (en banc). To be sure, there are valid concerns about how Title VII and the First Amendment could collide. See Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 209 (3d Cir. 2001) (Alito, J.); DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 596–97 (5th Cir. 1995); Eugene Volokh, Comment, Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791, 1793–98 (1992). For that reason, we exercise special caution when applying Title VII to matters involving traditionally protected areas of speech. See Yelling v. St. Vincent’s Health Sys., 82 F.4th 1329, 1345 (11th Cir. 2023) (Brasher, J., concurring).

None of this threatens our conclusion that Florida's law contains an illegal per se ban on speech the state disagrees with. Here, speech is not regulated incidentally as a means of restricting discriminatory conduct—restricting speech is the point of the law. That important distinction sets this Act apart from Title VII as an outright violation of the First Amendment.

[...]

The First Amendment "presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all." Sullivan, 376 U.S. at 270 (quotation omitted). Intellectual and cultural tumult do not last forever, and our Constitution is unique in its commitment to letting the people, rather than the government, find the right equilibrium. Because the Individual Freedom Act's mandatory-meeting provision, Fla. Stat. § 760.10[8], undermines that basic principle, it must be enjoined. We therefore AFFIRM the district court’s order preliminarily enjoining the operation of that provision.

https://twitter.com/MikeSacksEsq/status/1764773457240248697https://twitter.com/ALAtterbury/status/1764773228113695006

Link to decision [PDF]. Link to article:

A federal appeals court ruled unanimously Monday to block a Florida law preventing businesses from requiring employees to attend workplace trainings that promote diversity and inclusion, affirming a temporary injunction issued by a lower court.

“This is not the first era in which Americans have held widely divergent views on important areas of morality, ethics, law, and public policy,” a three-judge panel for the 11th Circuit Court of Appeals wrote in Monday’s decision. “And it is not the first time that these disagreements have seemed so important, and their airing so dangerous, that something had to be done. But now, as before, the First Amendment keeps the government from putting its thumb on the scale.”

I note this decision not because I have strong feelings on this issue (personally, I tend to avoid those topics here), but because one of the major pieces of legislation of the DeSantis agenda has been struck down by judges that are quite conservative. It's a pretty thorough thrashing of the law, written by Trump-appointee Judge Britt Grant (and joined by Trump-appointee Judge Andrew Brasher and Clinton-appointee Judge Charles Wilson).

As the opinion notes:

[...] This law, as Florida concedes, draws its distinctions based on viewpoint—the most pernicious of dividing lines under the First Amendment. But the state insists that ordinary First Amendment review does not apply because the law restricts conduct, not speech.

We cannot agree, and we reject this latest attempt to control speech by recharacterizing it as conduct. Florida may be exactly right about the nature of the ideas it targets. Or it may not. Either way, the merits of these views will be decided in the clanging marketplace of ideas rather than a codebook or a courtroom.

[...]

Florida proposes an alternative approach. It says that even if speech defines the contours of the prohibition, so long as the resulting burden is on the conduct, that conduct is all the state is regulating. That, in turn, means the law does not regulate speech. Remarkable. Under Florida’s proposed standard, a government could ban riding on a parade float if it did not agree with the message on the banner. The government could ban pulling chairs into a circle for book clubs discussing disfavored books. And so on. The First Amendment is not so easily neutered.

Victories protecting the freedom of speech should always be recognized and celebrated.

[David Hume]

Public school curriculums, & therefore what teachers can teach, are government speech & therefore regulatable here, but 'mak[ing] it illegal to compel people in [private-sector] workplace training to believe that an "individual, 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 individual played no part, committed in the past by other members of the same race, color, sex, or national origin"' arguably constitutes the enactment of unconstitutional viewpoint-based restrictions on the speech of Floridian business owners & employers operating in the state, in violation of their 1A rights. Moreover, the vague terms & definitions employed, if they don't amount to an explicit & definite statement of what conduct is punishable, could always be called out for being unconstitutionally vague too, regardless of any public/private distinction.

Can states ban private companies from training their employees to believe that the blacks are inferior to the whites?

[SWE]

Public school curriculums, & therefore what teachers can teach, are government speech & therefore regulatable here, but 'mak[ing] it illegal to compel people in [private-sector] workplace training to believe that an "individual, 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 individual played no part, committed in the past by other members of the same race, color, sex, or national origin"' arguably constitutes the enactment of unconstitutional viewpoint-based restrictions on the speech of Floridian business owners & employers operating in the state, in violation of their 1A rights. Moreover, the vague terms & definitions employed, if they don't amount to an explicit & definite statement of what conduct is punishable, could always be called out for being unconstitutionally vague too, regardless of any public/private distinction.

Can states ban private companies from training their employees to believe that the blacks are inferior to the whites?

Obviously not, no

[I spent the winter writing songs about getting better]

Public school curriculums, & therefore what teachers can teach, are government speech & therefore regulatable here, but 'mak[ing] it illegal to compel people in [private-sector] workplace training to believe that an "individual, 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 individual played no part, committed in the past by other members of the same race, color, sex, or national origin"' arguably constitutes the enactment of unconstitutional viewpoint-based restrictions on the speech of Floridian business owners & employers operating in the state, in violation of their 1A rights. Moreover, the vague terms & definitions employed, if they don't amount to an explicit & definite statement of what conduct is punishable, could always be called out for being unconstitutionally vague too, regardless of any public/private distinction.

Can states ban private companies from training their employees to believe that the blacks are inferior to the whites?

Obviously not, no

Although such private companies can not refuse to hire black workers per the Civil Rights Act and such black workers would be able to make a good racial harassment lawsuit I this was done.

[brucejoel99]

Reupping this:

In a last-ditch effort, Florida ties its Act to Title VII. According to Florida, because the Individual Freedom Act, like Title VII, seeks to regulate discrimination, the two statutes rise and fall together—if one is unconstitutional, the other must be too. We disagree. Having similar asserted purposes does not make the two laws the same.

Title VII makes it unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin"; it never mentions speech or content to define discrimination. 42 U.S.C. § 2000e-2(a)(1). While that law may have an incidental effect on speech, it is not directed at it. See R.A.V., 505 U.S. at 389; Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808–09 (11th Cir. 2010) (en banc). To be sure, there are valid concerns about how Title VII and the First Amendment could collide. See Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 209 (3d Cir. 2001) (Alito, J.); DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 596–97 (5th Cir. 1995); Eugene Volokh, Comment, Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791, 1793–98 (1992). For that reason, we exercise special caution when applying Title VII to matters involving traditionally protected areas of speech. See Yelling v. St. Vincent’s Health Sys., 82 F.4th 1329, 1345 (11th Cir. 2023) (Brasher, J., concurring).

None of this threatens our conclusion that Florida's law contains an illegal per se ban on speech the state disagrees with. Here, speech is not regulated incidentally as a means of restricting discriminatory conduct—restricting speech is the point of the law. That important distinction sets this Act apart from Title VII as an outright violation of the First Amendment.