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11th Circuit takes up challenge to Stop WOKE Act limitations on workplace training

The appellate panel will decide whether a Florida law violates the free speech rights of employers by banning mandatory worker attendance at diversity training events where “forbidden” progressive concepts are discussed.

ATLANTA (CN) — An attorney for Florida government officials asked an 11th Circuit panel on Thursday to overturn a federal judge’s injunction on enforcement of provisions in Florida’s Individual Freedom Act — aka the Stop WOKE Act — which ban employers from making employees attend workplace diversity programs discussing race, inequality and other topics.

Attorneys arguing on behalf of two employers and a diversity training consultant challenging the law said it blatantly violates the First Amendment. “If you say those things which the state of Florida has deemed too woke, then you are subject to a $10,000 civil penalty,” attorney Douglas Hallward-Driemeier of Ropes & Gray said.

The three-judge panel of the Atlanta-based appeals court is tasked with determining whether a part of the law, dubbed the “Stop WOKE Act” by Republican Governor Ron DeSantis, unconstitutionally burdens free speech or merely regulates employers’ conduct.

The law says employers cannot require their employees to attend trainings that promote any of eight “forbidden concepts.” Those include suggesting that members of one race, color, sex or national origin are morally superior to others, that people should feel guilty about the actions of their ancestors and that people are inherently racist or sexist.

The state claims it is merely trying to prevent employers from unjustly punishing workers who do not wish to hear “discriminatory” speech in the workplace.

“Businesses remain free as they ever were to espouse those concepts and to advocate for them,” attorney John Ohlendorf of Cooper & Kirk argued on behalf of the state. “The [law] bars only the conduct of threatening an employee with termination.”

Hallward-Driemeier painted a different picture of law, suggesting that the provision amounts to state censorship.

“At the core of the First Amendment is a prohibition on the state restricting speech because the state disagrees with the message, and that’s exactly what we have here,” Hallward-Driemeier told the panel. “We know that it is speech that is being limited here, restricted and punished.”

State officials have asked the 11th Circuit to overturn a preliminary injunction granted by a Florida federal judge last year. Chief U.S. District Judge Mark Walker ruled that the challenged part of the law is a “naked viewpoint-based regulation on speech” in violation of the First Amendment.

Walker also handed down a preliminary injunction against part of the law restricting the way race-related concepts can be taught in public universities. The state appealed the decision, but the 11th Circuit has not yet scheduled arguments in that case.

Ohlendorf told the panel the law does not violate free speech rights. He said that the law serves the same interests as Title VII of the Civil Rights Act of 1964, “which is keeping racist, sexist and discriminatory speech out of the workplace.”

U.S. Circuit Judge Britt Grant questioned how a regulation that removes an employer’s ability to “exercise its entirely ordinary control over employees” is not a restriction on speech.

“You can’t restrict someone based on their viewpoints,” Grant, a Donald Trump appointee, said. “In this context, companies can press an infinite number of topics on unwilling listeners who are their employees. You can make them listen to literally anything except this list of topics.”

Ohlendorf responded that the U.S. Supreme Court “has repeated many times” that the First Amendment “does not require the right to press even good ideas on unwilling listeners.”

Grant and U.S. Circuit Judge Charles Wilson, a Bill Clinton appointee, also questioned how the law could be enforced if not based on speech.

“If you can’t tell whether the law applies to this purported conduct unless you know what the speech is, how is that not restricting speech?” Grant asked.

The three companies challenging the law — Inc., Primo Tampa LLC and Collective Concepts LLC — have argued that the exact constitutional burden they would carry under the law is unclear.

Attorneys for the plaintiffs told the panel the law is simply too vague for employers with “ordinary intelligence” to understand when simple discussion crosses over into advocacy of the prohibited concepts.

Grant appeared to disagree, saying, “I don’t have a hard time understanding what these eight topics are and the difference between teaching that some people say this versus saying ‘This is what some people think.’ How vague are these really to a person of common understanding?”

Arguing on behalf of the employers, attorney Shalini Agarwal of the nonprofit Protect Democracy Project, said the real-world application of the law could be complicated. The attorney questioned whether a speaker might be said to endorse a concept if they smile while discussing it.

“It’s impossible to know. It would depend on the factfinder,” Agarwal said. “The impossibility of figuring out that line is the easiest and simplest way of disposing of the case.”

But Ohlendorf told the panel that the law is narrowly tailored to achieve its goal.

“The interest the state is driving [at] is just requiring attendance at workplace trainings where these ideas are inculcated,” Ohlendorf said. “I can’t think of any more tailored approach than that.”

Wilson and Grant were joined on the panel by U.S. Circuit Judge Andrew Brasher, also a Trump appointee. The panel did not indicate when they will reach a decision in the case.

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