Eleventh Circuit Smacks Down DeSantis's War On 'Woke'

How can you fight it when you can't even define it?

In 2022, when Florida Governor Ron DeSantis was laboring under the delusion that he might one day be president, he boasted that “Florida is where woke goes to die.”

In a cringeworthy election night speech, he cast himself as a modern-day Winston Churchill.

“We fight the woke in the legislature, we fight the woke in the schools, we fight the woke in the corporations,” he vamped to the cheering crowd.

After which he stepped on a spectacular series of rakes, turning himself into a punchline and getting his ass handed to him in multiple courts.

The humiliation continued this week at the Eleventh Circuit, which dropkicked DeSantis’s DEI ban. Turns out, the government can’t get around the pesky strictures of the First Amendment by slapping a big “THIS IS CONDUCT” sticker on speech it wants to silence.

How It Started …

“We must protect Florida workers against the hostile work environment that is created when large corporations force their employees to endure CRT-inspired ‘training’ and indoctrination,” DeSantis crowed in December of 2021 as he announced a plan to ban “critical race theory” in schools and workplaces. The law was dubbed the “Stop the Wrongs to Our Kids and Employees (W.O.K.E.) Act” — so clever! — and was eventually codified as Fla. Stat. § 760.10(8)(a) and § 1003.42(3).

Unfortunately, while the provisions dealing with higher education were blocked pending appeal, parents of children in K-12 schools are still empowered to sue teachers for indoctrinating kids with tales of Rosa Parks. But on a happier note, the corporate speech code was immediately enjoined, along with its ban on mandatory corporate or professional trainings which acknowledge systemic oppression or endorse “discriminatory” concepts like affirmative action.

When DeSantis and his minions have been forced to define “woke” under oath, they were reduced to gibbering nonsense about “progressives” and “CRT.” This has not stopped them trying to ban the ineffable “woke,” however. And so Judge Mark Walker, who presided at the district court level, began his order by unsubtly noting that the brain geniuses in Tallahassee have been on a tear lately with these performative, garbage statutes.

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.

The trial judge rubbished the anti-DEI provision as a blatant violation of the First Amendment, calling it “a naked viewpoint-based regulation on speech that does not pass strict scrutiny.”

Naturally, Florida appealed to the Eleventh Circuit where the state insisted that actually, the law banned conduct, not speech. See, it’s not the discussion of verboten concepts that’s illegal; it’s “subjecting any individual, as a condition of employment, membership, certification, licensing, credentialing, or passing an examination, to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe any of the following concept.”

So employers can declare that affirmative action is a holy virtue. They just can’t declare it at mandatory meetings, because meetings are conduct, not speech.

Case closed, right?

How It’s Going …

Let’s just say if you can come up with a corollary where a barred speaker could take the opposite position and find himself on the right side of the law, then you almost certainly have a First Amendment problem. And here, Florida employers are free to hold mandatory anti-woke training all day long, forcing their employees to listen to screeds on the evils of affirmative action and confident declarations that Black kids are no more likely to face police harassment than white ones.

Or as the Eleventh Circuit put it, “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.”

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.

The opinion is only 22 pages long, but it’s a drubbing.

It castigates the state defendants for committing “the greatest First Amendment sin,” suppressing speech the government designates as “offensive.”

“The comparative freedom to regulate conduct sometimes tempts political bodies to try to recharacterize speech as conduct,” the panel writes. “But hiding speech restrictions in conduct rules is not only a ‘dubious constitutional enterprise’ — it is also a losing constitutional strategy.”

Et tu, Britt-ay?

It’s a humiliating slapdown for DeSantis, and all the more so coming from a panel dominated by conservatives. In fact, two of the judges were appointed by Donald Trump himself.

The opinion was authored by Judge Britt Grant, who was just 40 when Trump elevated her from the Supreme Court of Georgia to the Eleventh Circuit in 2018. She was joined by Judge Andrew Brasher, the 42-year-old former solicitor general of Alabama, who was shoe-horned onto the federal bench in 2018 on a party-line vote and elevated to the Eleventh Circuit on Trump’s way out the door in 2020. Both jurists are stridently anti-choice and advocated against LGBTQ+ and voting rights before donning their judicial robes.

But Judges Grant and Brasher, along with Judge Charles Wilson, a Clinton appointee, are not contorting themselves to play their part in America’s neverending culture war. The Eleventh Circuit reversed a ban on conversion therapy for minors and tossed a law which blocked doctors from talking about gun safety — both on First Amendment grounds. They’re not going to wink at this bogus substitution of “conduct” for speech just because it strikes a blow against “woke.”

While she drags DeSantis and his minions, Judge Grant, the author of the conversion therapy decision, tweaks what she sees as liberal inconsistency with respect to conversion therapy.

Three years ago, we blocked local ordinances that attempted to circumvent the First Amendment’s protections by characterizing a ban on disfavored speech as a regulation of conduct. See Otto, 981 F.3d at 865–66, 872. As we cautioned there, “if the plaintiffs’ perspective is not allowed here, then the defendants’ perspective can be banned elsewhere.” Id. at 871. Our tradition, and our law, demand a different answer—even for the most controversial topics.

But even so, the order stands in stark contrast to the Fifth Circuit, which has been cranking out batshit rulings on everything from abortion to whether the state of Texas is allowed to enact its own border policy. As we discussed on Monday’s show with TechFreedom’s Corbin Barthold, Florida’s blatantly illegal social media law was enjoined by the Eleventh Circuit, while the Fifth Circuit would have allowed the Texas version to go into effect. (It was stayed pending review by SCOTUS.)

No doubt Governor DeSantis envies his buddy Governor Greg Abbott, who is able to get absolutely any insane enactment blessed by the culture warriors of the Fifth Circuit. Abbott also got the compliment of Trump pretending that he might get tapped as his running mate. Meanwhile “Meatball Ron” is exiled to the wilderness and term-limited out.

And yet, he leaves behind all the hideous, gay-bashing, race-baiting laws he got passed when he was hallucinating a presidential run. So we’ll always have something to remember Rob DeSanctimonious by — at least until the Eleventh Circuit gets finished wiping away the last trace of him.

[Honeyfund.Com v. Florida, Circuit Docket via Court Listener / Honeyfund.Com v. DeSantis, District Docket via Court Listener]