Infringing on free speech

MYRNA BROWN, HOST: Up next: Florida Republican Gov. Ron DeSantis recently told a Pennsylvania audience that his state was “where woke goes to die.” But in at least one respect, a federal judge has given wokeness a stay of execution.

PAUL BUTLER, HOST: In March, Florida legislators passed the Individual Freedom Act (IFA)–also dubbed the “Stop Woke Act.” The measure amends the state’s civil rights law to bar schools and employers from requiring employees to attend certain types of sensitivity training. And it bans the teaching of things like critical race theory.

BROWN: But critics say the bill goes too far, infringing on First Amendment rights, and at least one federal judge agrees.

Chief U.S. District Judge Mark Walker, an Obama appointee, issued an order temporarily putting a hold on the implementation of the law.

BUTLER: Steve West recently wrote about the legal battle surrounding this measure, and he joins us now to fill us in on the details. He is an attorney and writes about religious liberty issues for WORLD Digital. Good morning, Steve!

WEST: Good morning, Paul!

BUTLER: First of all, Steve, does this apply just to schools and government agencies? Or also to private employers?

WEST: The law actually applies to all three–to government, school, and private employers. But this lawsuit deals only with private employers who use these kinds of methods–often referred to as critical race or anti-racist theories–in their training of employees.

BUTLER: What kinds of teaching or training does it actually prevent and why?

WEST: There’s a lot addressed in the law, but a few examples help. The law bars teaching that one race is morally superior to another race. Or, telling employees that because they are members of a particular race they are inherently racist, sexist, or oppressive. Or even that because you are a certain race, you bear responsibility for past actions against another race and should now be discriminated against. When you actually say these things out loud, it’s quite shocking to think that these concepts are being promoted by a significant number of employers in mandatory training–even by the Biden administration.

BUTLER: Alright, so tell us about the legal challenge. Who is fighting this and what is their argument against it?

WEST: There are three challengers: Honeyfund.com, a technology firm; Primo, a Ben and Jerry’s franchisee; and a diversity consultant who sought to implement “anti-racist” training. Their argument is that this is a viewpoint-based restriction on private speech, something barred by the First Amendment. Private employers have First Amendment rights too, of course, so there's support for their argument, even if you disagree with it. On the other hand, the state is saying that this is a restriction on conduct alone, that the law doesn’t say employers can’t train on these concepts, only that you can’t make employees attend it. That too is an argument that has some support, but the court wasn’t buying it.

BUTLER: Okay, so where does this case stand now and what’s next?

WEST: Gov. DeSantis has already said that the ruling would be appealed. But in the meantime, the state is barred from applying the law to private employers. Interestingly enough, the judge did hold out the prospect that because of this kind of training, if the work environment is coercive enough, an impacted employee could bring an action for “hostile work environment”--hostile because of your race or sex. That’s a violation of a federal law, Title VII of the Civil Rights Act. It’ll be interesting to see who takes him up on that, as I have read of situations where employees with objections have been hassled, demoted, or disciplined for voicing objections. Frankly, I think many companies will stop using such heavy-handed and controversial training when they sense there is little support for it among their customers. As a prospective employee, it would also make me want to know the kind of training I would be required to attend, should I be hired.

BUTLER: So this affects private employers, but what about schools?

WEST: On the same day this ruling was issued a group of instructors and students at Florida universities, represented by the American Civil Liberties Union, also sued the state. Interestingly enough, they call the law “racially motivated censorship” to shut down discussion of “systemic inequalities”--yet as far as I can tell, dissent is not generally well-received in these settings. If companies (and universities) are really interested in discussion, they should bring in trainers who can present a different viewpoint. As the saying goes, the answer to speech you don't agree with is more speech, not less. Not cowed silence, not demonization of those with whom we disagree, but gentle persuasion.

BUTLER: Steve West writes about religious liberties for WORLD Digital. You can read his work at WNG.org. You can also subscribe to his free weekly newsletter on First Amendment issues, called Liberties. Steve, always good to have you on. Thank you!

WEST: My pleasure, Paul.

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.