The tragic killings of George Floyd, Breonna Taylor, and Ahmaud Arbery in 2020 shocked the world—sparking a global-scale outcry for the advancement of racial justice in the law and jolting millions of Americans from their couches and onto the streets for peaceful demonstrations. Thousands of peaceful protestors in major Florida cities joined the resurging demands for racial justice. Naturally, discussions on how to dismantle institutional racism and build towards a post-racial era dominated social, legal, and academic circles. Many Florida academic institutions met these demands by inviting further discussion and incorporating them into their curricula.[i] In the private sector, businesses fostered respectful working environments by including training on diversity, equity, inclusion, implicit bias, and sexual harassment. Justice was once again the cause for action in America. However, the Florida Legislature fashioned together sinister legislation with one aim: censorship.
Rather than answer the call for racial justice, the Florida Legislature rejected institutional change and free speech by passing “anti-woke” legislation. The Florida Legislature created FL HB 7 (22), now the Individual Freedom Act, or colloquially, the Stop W.O.K.E. Act, to shut down discussions on systemic change by threatening to punish academic institutions and private businesses.[ii] The Stop W.O.K.E. Act[iii] broadens existing Florida discrimination laws to prohibit academic institutions and private companies from instructing: that any individual is inherently a bigot due to their race or sex; that a race or sex is superior to another; that an individual is guilty of past actions by members of their race or sex; and that an individual should “feel discomfort, guilt, anguish, or any form of psychological distress” because of their race, color, sex, or national origin.[iv]
On paper, this may not seem like a big deal—perhaps even reasonable. The “Individual Freedom” Act seems facially neutral, and its goals seem noble. However, its colloquial name—the S.T.O.P. Woke Act— and its endorsers reveal that the legislation is anything but neutral and noble. The S.T.O.P. Woke Act is designed to discriminate against viewpoint-based speech, and does so by prohibiting academia and private businesses from engaging in speech regarding civil rights, critical race theory, and other viewpoints that address past and present examples of systemic racism in the United States.[v] For example, the legislation’s most fervent endorser, Governor Ronald DeSantis, makes no attempt to hide the fact that the Stop W.O.K.E. Act’s discriminatory purpose when he says it is necessary to create a “woke-free state” and that Florida must “take a stand” on critical race theory.[vi] Further, Lieutenant Governor Jeannette Nuñez also very proudly espouses the underlying discriminatory purpose of the legislation when she says that it will “put an end to wokeness that is permeating our schools and workforce.” Keep in mind that “critical race theory” is a long-recognized academic theory and body of legal scholarship that identifies and challenges the perpetuation of racial inequalities in social institutions and the law, and that being “woke” is simply being “alert to racial or social discrimination or injustice.”[vii] This legislation does not have a sincere government interest supporting it—only a discriminatory purpose and willful misunderstanding of the content of the regulated speech.
The Legislature plans to enforce this unconstitutional restriction on speech by “impos[ing] harsh penalties, up to and including withholding of funding for state college and universities, allowing for enforcement by both state officials and private individuals against instructors who teach viewpoints” that the Legislature does not like.[viii] By cutting funding for academia, educators will be the first to fall under the axe of the Stop W.O.K.E. Act. Instructors will fear teaching topics regarding civil rights, oppression, privilege, and inequality and will walk on eggshells when trying to speak truth to power. Students will have the quality of their education watered down as their selection of course offerings will be curtailed, robust classroom discussions will be silenced, and only censored and incomplete accounts of world history will be taught.[ix]
Academic institutions and private businesses will have no choice but to comply. But at what points does classroom or workplace instruction become “woke” speech? How is an educator or employer supposed to know what objective facts will cause a student or employee to feel bad? How should these institutions behave if any misstep could subject them to lawsuits or the withholding of funding? There are no answers to these questions, so these impossible and unachievable standards demonstrate the unconstitutional vagueness and overbreadth of the Stop W.O.K.E Act.
The Stop W.O.K.E Act is full of holes and does not pass constitutional muster on due process and equal protection grounds. It is unclear how many more attempts to restrict speech on ideological grounds will be made, but so long as free speech is a core part of American history and integral to the fabric of our democracy, every attempt will nevertheless fail.
[i] See, e.g., FSU President agrees to remove Francis Eppes from College of Criminology, WTXL, https://www.wtxl.com/sports/college-sports/fsu/fsu-president-thrasher-francis-w-eppes-statue-will-be-immediately-placed-off-campus#:~:text=TALLAHASSEE%2C%20Fla.,Campbell%20Stadium. (last updated Jan. 26, 2021, 5:56 pm).
[ii] See Andrew Atterbury, Federal judge temporarily blocks DeSantis’ ‘Stop-WOKE’ law, Politico (Aug. 18, 2022, 6:02 pm), https://www.politico.com/news/2022/08/18/federal-judge-temporarily-blocks-desantis-stop-woke-law-00052768.
[iii] See Stop W.O.K.E. Act Handout, https://www.flgov.com/wp-content/uploads/2021/12/Stop-Woke-Handout.pdf (last visited Sep. 12, 2022).
[iv] Cathy J. Beveridge et al., Updated: Florida “Individual Freedom Act” Makes Certain Employee Trainings Discriminatory, Buchanan, https://www.bipc.com/florida-individual-freedom-act-makes-certain-employee-trainings-discriminatory#:~:text=Original%20advisory%20published%20on%20April%2027%2C%202022&text=The%20Individual%20Freedom%20Act%20expands,to%20diversity%20and%20unconscious%20bias. (last updated Aug. 22, 2022).
[v] See, e.g., Florida Government Staff, Press Release, Gov. Ron DeSantis, Gov. Ron DeSantis Signs
Legislation to Protect Floridians from Discrimination and Woke Indoctrination
(Apr. 22, 2022), https://flgov.com/2022/04/22/governor-ron-desantis-signs-legislation-to-protect-floridians-from-discrimination-and-woke-indoctrination/.
[vi] See, e.g., Florida Government Staff, Press Release, Gov. Ron DeSantis, Gov. DeSantis Announces Legislative
Proposal to Stop W.O.K.E. Activism and Critical Race Theory in Schools and
Corporations (Dec. 15, 2021), https://www.flgov.com/2021/12/15/governor-desantis-announces-legislative-proposal-to-stop-w-o-k-e-activism-and-critical-race-theory-in-schools-and-corporations/.
[vii] See Woke, Oxford English Dictionary (3d ed. 2017).
[viii] Hank Reichman, The First Amendment “Upside Down” in Florida’s Stop WOKE Act, Academe Blog (Aug. 19, 2022), https://academeblog.org/2022/08/19/the-first-amendment-upside-down-in-floridas-stop-woke-act/.
[ix] See, e.g., Annie Martin, UCF Department Briefly Scraps Anti-racism Policy Amid
Concerns about New State Law, Orlando Sentinel (July 07, 2022, 6:26 pm),
https://www.orlandosentinel.com/news/education/os-ne-ucf-english-anti-racism-20220707-gtigoknfnbgybgxseezxpuvyae-story.html.
