Executive Summary: On Monday, March 4, 2024, the U.S. Court of Appeals for the Eleventh Circuit upheld the August 2022 preliminary injunction issued by Judge Walker of the U.S. District Court for the Northern District of Florida, ordering state officials in Florida to take no steps to enforce the Individual Freedom Act, Fla Stat. § 768.10(8) (also known as HB7 or the “Stop WOKE Act”), based on concerns the law is unconstitutional.
In the case, two private employers and a diversity, equity, and inclusion (DEI) consultant and training company argued that the Stop WOKE Act is unconstitutional because it restricts free speech and is impermissibly vague. In a previous legal alert, we summarized HB7 and provided insights into what this law might mean for employers when it comes to DEI training in the workplace; we also provided subsequent updates, here and here, on the status of the legislation. In sum, the Stop WOKE Act prohibited Florida employers from requiring employees to attend any training or activity that “espouses, promotes, advances, inculcates, or compels” an individual to believe certain prohibited concepts relating to race, color, sex, or national origin.
What Does the Opinion Say?
In a 22-page decision reviewing the district court’s decision to issue the preliminary injunction, the Eleventh Circuit succinctly dissected and rejected what the appellate court claimed was “the latest attempt to control speech by recharacterizing it as conduct,” and in so doing, indicated that the Stop Woke Act commits “the greatest First Amendment sin” by targeting speech based on its content and penalizing certain viewpoints that the state deems offensive.
The court specifically rejected Florida’s “attempt to control speech by recharacterizing it as conduct,” noting that the “First Amendment is not so easily neutered.” The court clarified that Florida’s decision to “limit[] its restrictions to a list of ideas designated as offensive” by definition “targets speech based on its content.” The Eleventh Circuit captured the essence of the First Amendment violation by noting: “[t]he 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.” This “direct penalty on certain viewpoints” regardless of Florida’s desire to “protect the ears of its residents ‘is not enough to overcome the right to freedom of expression’” protected by the First Amendment.
While this opinion only halts enforcement of the Stop WOKE Act pending a final decision on the merits of the complaint, the unanimous three judge panel of the Eleventh Circuit made its position clear: “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.” The court concluded with a poignant observation that – “[i]ntellectual 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.”
What Does This Mean for Florida Employers?
The court's opinion affirms the lower court’s block on workplace training restrictions and the enforcement of any alleged violation of the Stop WOKE Act. For now, Florida employers can continue their DEI trainings and conversations without fear that they may be alleged to have espoused or endorsed a prohibited concept by simply discussing or covering certain topics, but employers should carefully monitor the proceedings in this case. A statement from the Florida governor’s office issued after the decision was published indicates that they disagree with the decision and are reviewing all appeal options – which could include a request for rehearing by the full circuit. The merits of the case are still pending before the U.S. District Court for the Northern District of Florida.
