“This is not the first era in which Americans have held widely divergent views on important areas of morality, ethics, law and public policy,” the 22-page opinion said. “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.”
- The panel upheld a preliminary injunction issued in 2022 by Chief U.S. District Judge Mark Walker against the restrictions. The law was challenged by Primo Tampa, LLC, a Ben & Jerry’s ice-cream franchisee; Honeyfund.com, Inc., a Clearwater-based technology company that provides wedding registries; and Chevara Orrin and her company, Collective Concepts, LLC. Orrin and her company provide consulting and training to employers about issues such as diversity, equity and inclusion.
What’s in the law?
The workplace-training part of the law listed eight race-related concepts and said that a required training program or other activity that “espouses, promotes, advances, inculcates, or compels such individual (an employee) to believe any of the following concepts constitutes discrimination based on race, color, sex, or national origin.”
- As an example of the concepts, the law targeted compelling employees 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.”
In court documents, the state disputed that the law violated speech rights, saying that it regulated “conduct.” It said businesses could still address the targeted concepts in workplace training — but couldn’t force employees to take part.
Sorry, Ron
But the appeals court flatly rejected such arguments Monday. It described the law as:
“The 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.”
“By limiting its restrictions to a list of ideas designated as offensive, the act (the Florida law) targets speech based on its content,” said the opinion, written by Judge Britt Grant and joined by Judges Charles Wilson and Andrew Brasher. “And by barring only speech that endorses any of those ideas, it penalizes certain viewpoints — the greatest First Amendment sin.”
The opinion also said the law “prohibits mandatory employee meetings — but only when those meetings include speech endorsing certain ideas.”
“Whether Florida is correct that the ideas it targets are odious is irrelevant — the government cannot favor some viewpoints over others without inviting First Amendment scrutiny,” wrote Grant, who was appointed to the Atlanta-based appeals court by former President Donald Trump. Brasher also was appointed by Trump, while Wilson was appointed by former President Bill Clinton.
Next Up
Judge Walker also separately issued a preliminary injunction against part of the law that would restrict the way race-related concepts can be taught in universities. The state has appealed that decision, with arguments scheduled in June.
Source: The News Service of Florida