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Ron DeSantis is hard at work rushing right-wing fever dreams into law — never mind that they’re unlikely to pass constitutional muster. And it turns out “Individual Freedom Act,” also known as the Stop Woke Act, does not pass the sniff test according to a federal judge.

The act amends Florida’s civil rights act “by expanding the definition of unlawful employment practice to include requiring employees to attend a training—or any other ‘required activity’—that promotes any of eight forbidden concepts.” Which means all sorts of diversity and race-based trainings an employer may want its employees to participate in are banned by the law. A notion the federal judge quickly benchslaps.

And, as Chief United States District Judge Mark Walker of the United States District Court for the Northern District of Florida employs pop culture (specifically the hit nostalgic/spooky TV show Strangers Things) to make his point, well, yeah, it’s garnering some attention in the legal world:

In the popular television series Stranger Things, the “upside down” describes a parallel dimension containing a distorted version of our world. See Stranger Things (Netflix 2022). Recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely.

Judge Walker continues by placing himself in the role of Eleven, “Now, like the heroine in Stranger Things, this Court is once again asked to pull Florida back from the upside down.”

Over the course of the next 27 pages, the order then outlines the ways in which the Florida law likely violates the First Amendment, noting this is not AT ALL how it is supposed to work (and setting free speech lovers’ hearts aflutter):

Florida’s Legislators may well find Plaintiffs’ speech “repugnant.” But under our constitutional scheme, the “remedy” for repugnant speech “is more speech, not enforced silence.” Whitney v. California, 274 U.S. 357, 377 (1927). Indeed, “it is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969). If Florida truly believes we live in a post-racial society, then let it make its case. But it cannot win the argument by muzzling its opponents. Because, without justification, the IFA attacks ideas, not conduct, Plaintiffs are substantially likely to succeed on the merits of this lawsuit.

Ultimately, the court grants the plaintiffs’ preliminary injunction, and reveals Walker is wildly unimpressed with Florida’s justification for the law. Indeed, the decision trots out Charles Dickens to point out the dumbness of the defendants’ arguments before ordering the injunction (which is long but ABSOLUTELY worth the read):

In the end, Defendants suggest that there is nothing to see here. They say the IFA does nothing more than ban race discrimination in employment. But to compare the diversity trainings Plaintiffs wish to hold to true hostile work environments rings hollow. Worse still, “it trivializes the freedom protected” by Title VII and the FCRA
“to suggest that” the two are the same. FAIR, 547 U.S. at 62.

Just imagine two scenarios. In the first scenario, a Black employee complains about a mandatory safety training scheduled on Juneteenth. Then, at a mandatory training the day before Juneteenth, “to the surprise of the employees in attendance, a white woman in a black gorilla suit enter[s] the meeting.” Henry v. CorpCar Servs. Hous., Ltd., 625 F. App’x 607, 608 (5th Cir. 2015). As one of the managers blocks the only exit, the woman does “Tarzan yells and repeatedly refer[s] in a suggestive manner to ‘big black lips,’ ‘big black butt,’ and bananas.” Id. As the woman dances suggestively on one of the Black employees who had complained, another manager leans in and says: “Here’s your Juneteenth.” Id. In the second scenario, a company directs a White employee to attend a mandatory training in which employees watch “a video about violence committed against Black people in the United States over the centuries.” ECF No. 18-3 at 4. After the video, the presenter defines “Black rage”—“resistance towards oppressive people, practices, structures, and systems”— and “White Humility”—“a reflective practice that helps white people develop [the] capacity to interrupt white supremacy”—and asks Black and White participants to discuss them. Id. at 4, 12, 14.

These two scenarios, under Defendants’ theory, are indistinguishable. Indeed, Defendants say, to hold that the state may not ban the latter scenario is to hold that it may not ban the former. ECF No. 49 at 27 (arguing that a ruling for Plaintiffs would doom “a vast range of routine employment discrimination claims”). “If the law supposes that, the law is an ass, an idiot.” Charles Dickens, Oliver Twist 463 (3d ed. The New American Library 1961). But the law is neither an ass nor an idiot. It can tell the difference.

Telling your employees that concepts such as “normal” or “professional” are imbued with historically based racial biases is not—and it pains this Court to have to say this—the same as trapping Black employees in a room while a woman in a gorilla suit puts on a retaliatory, racially inflammatory performance the day before a holiday celebrating the end of slavery. Rather, it is speech protected by the First Amendment.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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