The Stop Woke Act, also known as the Individual Freedom Act, seeks to restrict schools and businesses from promoting certain concepts related to race, gender, and social privilege. In an opinion by Judge Grant, joined by Judge Wilson, and with a dissent by Judge Lagoa, the Eleventh Circuit upheld an injunction blocking enforcement of the Stop WOKE Act as to universities.
The majority characterized the government's position as attempting to create a salary-for-speech rule and grappled with how to balance professors' First Amendment rights with the government's interest in regulating work-related communications. The majority argues that the dissent cherry-picks from Supreme Court precedent (as well as from a Third Circuit opinion drafted by then-Judge Alito). The majority instead ultimately finds that "managerial concerns are not at play here" and that "the law is a per se ban on speech the State disagrees with."
Judge Lagoa, in dissent, argues that precedent and the majority establish that the State can restrict a professor's speech and that the State's authority "is at its zenith in public classrooms[.]" She criticizes the majority as creating an unworkable judge-created test reflecting their policy preferences that overly relies on the relatively recent principle of academic freedom which is not enshrined in the First Amendment. Judge Lagoa concludes by saying that "the majority shifts that decision-making authority [to limit what can be taught] from the people to federal judges. The test now is: Does the presiding judge believe that the professor’s viewpoint is within the range of permissible views?"
It will be interesting to see if this one is heard en banc or if it makes its way to the U.S. Supreme Court. Full opinion here.
It always shocks me when litigants (and judges) start harping on the "will of the people" (read: the will of the legislature): 1) without grappling with the fact that obvious and rampant gerrymandering often--and def in Florida--diminishes or even eviscerates the argument that those two "wills" are the same; and 2) that the federal constitution puts limits on the terrible things those in the majority would do to those in the minority, and that it's the core function of courts to balance those interests / constitutional rights. That's not judicial activism or "judge-made law," it's literally the court doing its job. To suggest otherwise is so disingenuous.
ReplyDeleteThis will certainly go en banc, only because the conservative judge was outnumbered by liberal judges in the panel. It will then get reversed not because of the law, but because of political views.
ReplyDeleteIn what world is Grant liberal?
DeleteJudge Grant - who wrote the majority opinion - is a Trump appointee. Who clerked for Kavanaugh. TF are you talking about "liberal judge"?!
DeleteIf you're calling Judge Grant "liberal," you have completely lost track of the plot.
DeleteAgree with the cynicism that oozes from @3:24's comment. It's valid and, frankly, warranted.
DeleteBUT (and setting aside the plain misapplication of the phrase to Judge Grant of all people), perpetuating the Right's (over)use of "liberal judge" causes its own harm to the rule of law. Don't do it @3:24!
Lagoa's dissent is well-written (great clerks, I'm sure) but leads to an absurd result. So, the state of Florida just can just ban any mention of the Rosewood massacre by a history professor? I can hardly see how that's not protected speech, not to mention outright viewpoint discrimination. I love how coy Jordi is here. Yeah, it sure will be "interesting" when SCOTUS overturns this or affirms and en banc ruling, Alito holding the blood-red pen, of course. So much for the Free State of Florida. Nothing free about it.
ReplyDelete