Honeyfund.com Inc. v. Governor
11th Circuit Court of Appeals, 3/4/24
No. 22-13135, 2024 WL 909379
Judge Grant
Topics: First Amendment
Full Take: This is not a personal injury opinion, but it’s newsworthy, and it could also provide the basis for a 42 U.S.C. § 1983 cause of action for violation of a constitutional right. It’s a major First Amendment case. It holds portions of Florida’s Individual Freedom Act, a key piece of Gov. Ron DeSantis’s policies, to be unconstitutional. The Eleventh Circuit rejected what it called “this latest attempt to control speech by recharacterizing it as conduct,” adding that Florida may be exactly right about the nature of the ideas it targets. Or it may not. Either way, the merits of these views will be decided in the clanging marketplace of ideas rather than a codebook or a courtroom.”
Under the so-called “Individual Freedom Act,” the Florida legislature banned certain mandatory workplace trainings relating to race, color, sex, or national origin. Specifically, it banned trainings involving content promoting the idea that:
1. Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.
2. An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
3. An individual's moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin.
4. Members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin.
5. An individual, by virtue of his or her race, color, sex, or national origin, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin.
6. An individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
7. An individual, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part, committed in the past by other members of the same race, color, sex, or national origin.
8. Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin.
Employers could still hold trainings on these topics as long as the training condemned rather than endorsed those views. The Act could be enforced through citizen-initiated suits or through regulatory action. Either way, the price of failure is steep. Employers who require their employees to hear these disfavored ideas could face serious financial penalties—back pay, compensatory damages, and up to $100,000 in punitive damages, plus attorney's fees—on top of injunctive relief.
Two private companies, Honeyfund and Primo Tampa, wanted to host mandatory training sessions they characterize as highlighting “diversity, equity, and inclusion” issues. Chevara Orrin and her company, Whitespace Consulting, is in the business of hosting such trainings. Those plaintiffs challenged the law as violative of free speech rights and as vague and overbroad.
The district court enjoined the law. Florida appealed.
The Eleventh Circuit noted that “the ideas targeted in Florida's Individual Freedom Act are embraced in some communities, and despised in others. But no matter what these ideas are really worth, they define the contours of the Act. By limiting its restrictions to a list of ideas designated as offensive, the Act targets speech based on its content.” By barring only speech that endorses any of those ideas, it penalizes certain viewpoints, which the Court called “the greatest First Amendment sin.”
Florida tried to argue that the law is only a ban on conduct, not speech, because only the meetings are being restricted, not the speech. The court didn’t buy 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.
While obscenity, fighting words, incitement, and the like are not protected speech, the list of what doesn’t count as protected speech cannot be added to by the legislature. Outside those categories, laws regulating speech must survive strict scrutiny, and the bar for strict scrutiny is high in order to prevent the “standardization of ideas either by legislatures, courts, or dominant political or community groups.”
For viewpoint-based speech restrictions—when the government targets not just a subject matter, but “particular views taken by speakers” on that subject matter—the First Amendment provides even tighter limits. Such restrictions are “an egregious form of content discrimination” and likely even invalid per se.
Conduct, of course, is a different matter because the government does have broad authority to regulate in that arena—just not as a smokescreen for regulating speech. Regulations of conduct may incidentally affect speech; the classic example is that a law against setting fires can prohibit flag burning, which is symbolic speech. Trying to dress up restrictions on speech as “conduct,” however, is “a losing constitutional strategy.” One “reliable way” for courts to distinguish speech from conduct is to ask whether enforcement authorities must examine the content of the message that is conveyed to know whether the law has been violated. In other words, we ask whether the message matters, or just the action. When the conduct regulated depends on—and cannot be separated from—the ideas communicated, a law is functionally a regulation of speech. The Individual Freedom Act prohibits mandatory employee meetings—but only when those meetings include speech endorsing certain ideas. This was a “textbook regulation of core speech protected by the First Amendment.”
The Court expressed astonishment at Florida’s attempt to dress the ban up as conduct, writing:
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.
For the law to survive, the government bears the burden, under the “strict scrutiny” test, of showing that it is narrowly tailored to serve a compelling state interest. Florida claims that it has a compelling interest in protecting individuals from being forced, under the threat of losing their jobs, to listen to speech “espousing the moral superiority of one race over another,” “proclaiming that an individual, by virtue of his or her race, is inherently racist,” or “endorsing the racially discriminatory treatment of individuals because of past racist acts in which they played no part.” These categories of speech, Florida says, qualify as “invidious discrimination” that the state can regulate. That many people find these views deeply troubling does not mean that by banning them Florida is targeting discrimination. “To discriminate generally means to treat differently.” But the Act does not regulate differential treatment: the employer's speech, offensive or not, is directed at all employees, whether they agree with it or not. 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.
And even if the Act served some interest in combating discrimination, “its breadth and scope would doom it. Banning speech on a wide variety of political topics is bad; banning speech on a wide variety of political viewpoints is worse.” And a government's desire to protect the ears of its residents “is not enough to overcome the right to freedom of expression.” Broad prophylactic rules are generally disfavored and cannot survive. Florida’s view would require the court to ignore that the law bans speech even when no one listening finds it offensive. That is to say, it keeps both willing and unwilling listeners from hearing certain perspectives. For every one person who finds these viewpoints offensive, there may be another who welcomes them, which Florida acknowledges. And even if every employee did disagree with the banned viewpoints, it would not save the Act. No government can “shut off discourse solely to protect others from hearing it.” The fact that other avenues of expression exist does not excuse the “constitutional problem posed by speech bans.”
In a last-ditch effort, Florida tried to tie its Act to Title VII, but have similar asserted purposes does not make the two laws the same. Title VII makes it unlawful for an employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin”; it never mentions speech or content to define discrimination. While that law may have an incidental effect on speech, it is not directed at it. To be sure, there are valid concerns about how Title VII and the First Amendment could collide. Florida's law contains an illegal per se ban on speech the state disagrees with. Restricting speech is the point of the law. That important distinction sets this Act apart from Title VII as an outright violation of the First Amendment. No matter how controversial the ideas, allowing the government to set the terms of the debate is poison, not antidote.
Because the plaintiffs have shown a likelihood of success on the merits (NOTE: Hahahahaha. You think?), the Individual Freedom Act's mandatory-meeting provision must be enjoined. AFFIMRED.
