Eleventh Circuit Strikes Florida's "Anti-W.O.K.E." Act

The Eleventh Circuit this week ruled that the workplace-training ban in Florida's "Anti-W.O.K.E." Act violates the First Amendment. (The case didn't involve the public-school instruction ban, and that court had nothing to say about that part of the Act.) The court affirmed the district court's preliminary injunction against the Act, thus allowing employers in Florida to continue to host diversity training programs for their employees.

Florida's Act prohibits employers from subjecting "any individual, as a condition of employment" to "training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels" specified topics and viewpoints about race. Those topics and viewpoints include positions like "Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin" and "An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or not."

The Eleventh Circuit ruled that the Act constituted impermissible content and viewpoint discrimination, and that the state failed to demonstrate that it satisfied strict scrutiny. In short, "Florida has no compelling interest in creating a per se rule that some speech, regardless of its context or the effect it has on the listener, is offensive and discriminatory." Moreover, even if the state had a compelling interest, the Act's "breadth and scope would doom it."

Florida argued that the Act regulated conduct, not speech. But the court had none of it. "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."