Honeyfund.com, Inc. v. Ron DeSantis, 4:22-cv-227 (N.D. Fla. August 18, 2022)
Two Florida employers and a diversity consultant (“Plaintiffs”) sued for an injunction to halt enforcement of the Individual Freedom Act (IFA), more colloquially known as the STOP WOKE Act. The IFA expanded the definition of unlawful employment practice in the Florida Civil Rights Act of 1992 and applied to schools and colleges as employers. The IFA prohibits requiring employees to attend training promoting a variety of concepts, including several related to race, sex, and national origin.
In their complaint, Plaintiffs argued the IFA violated the First Amendment and the Fourteenth Amendment, suing a variety of state officials, including Governor Ron DeSantis (“Defendants”). Along with their complaint, Plaintiffs filed a motion for a preliminary injunction to enjoin state officials from enforcing the IFA.
LEGAL STANDARD FOR PRELIMINARY INJUNCTIONS
A court will grant a preliminary injunction if:
- Plaintiffs’ claims have a substantial likelihood of success on the merits.
- Plaintiffs will suffer irreparable injury without the injunction.
- The threatened injury to Plaintiffs outweighs whatever damage the proposed injunction may cause the opposing party.
- The injunction would not be adverse to the public interest.
FINDINGS AND SIGNIFICANT ISSUES
Plaintiffs argued the IFA would result in unconstitutional viewpoint restrictions on speech – in other words, the IFA targets specific speech “because of its message.”
In response, Defendants argued:
- The IFA restricts conduct only, not speech.
- If the IFA restricts speech, it does so only as an incidental effect of legitimately regulating conduct.
- Assuming the IFA regulates speech, it is nonetheless constitutional because it is narrowly tailored to serve a compelling state interest.
Turning to Defendants’ first argument, Defendants claimed that the IFA only regulates employers’ conduct regarding mandating training events or sessions. The court found such an argument unpersuasive. First, the IFA bars more than just mandatory trainings, it bars any required activity that discusses or endorses the prohibited concepts. Conceivably, the court asserts, the law could cover trainings, phone calls, assignments, and discussions – anything that is required by the employer and endorses the listed ideas. More importantly though, the IFA does not ban all mandatory employee trainings, nor does it ban mandatory training addressing the listed concepts. Rather, the IFA only prohibits trainings endorsing those ideas. The “bottom line” is that the only way to determine whether the IFA bars a mandatory activity is to look to the viewpoint expressed at that activity. As such, the court held that the IFA regulates speech, not merely conduct.
The court analyzed Defendants’ second argument that the IFA only incidentally regulated speech. The First Amendment does not prevent conduct restrictions that also incidentally burden speech. Defendants argued that the IFA echoes Title VII’s regulation of speech, so striking down the IFA’s employment provisions would threaten the validity of Title VII’s protections against hostile working environments. The court pointed out that Title VII does not regulate speech; it targets conduct, prohibiting discriminatory conduct and hostile environments, and only incidentally burdens speech. Although speech may create a hostile environment, Title VII regulates speech only when it is objectively and subjectively offensive and when it is sufficiently severe or pervasive. The Title VII standard provides shelter for “core protected speech,” whereas the IFA does not. The IFA requires no evidence that the prohibited speech be even subjectively offensive, let alone severe or pervasive. Therefore, IFA has no relation to Title VII regarding speech restrictions.
Here, the court held that the “telltale sign” of Defendants’ intention to punish speech is that the IFA’s statutory violations are not based on conduct that is separate from speech. Indeed, Defendants’ attorney conceded to the court that the IFA’s rule is incoherent without reference to the underlying speech’s content. The IFA does not prohibit required trainings, only requiring trainings on specific topics. As a result, the IFA is not connected to any regulation of conduct that is separate from speech. Therefore, the IFA regulates speech directly, not incidentally.
Lastly, since the court determined the IFA restricts speech based on viewpoint, the law must be narrowly tailored to serve compelling state interests. Defendants argued that Florida has an interest in preventing employers from “foisting speech that the State finds repugnant on a ‘captive audience’ of employees.” In response, the court asserted that the First Amendment does not permit Florida to censor speech because the speech is repugnant, no matter how captive the audience. Further, the court found, even if the IFA served a compelling government interest, it is not narrowly tailored because the IFA bans a significant amount of protected speech in order to ban “a sliver of offensive conduct.”
In concluding its First Amendment analysis, the court asserted that “under our constitutional scheme, the remedy for repugnant speech is more speech, not enforced silence…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.”
In what I think we must call a “reawokening,” the court granted the injunction after briefly considering the other three elements of the preliminary injunction analysis.
- The court’s analysis of the IFA and Title VII may prove instructive for Title IX practitioners. The Title IX Notice of Proposed Rulemaking (NPRM) signaled a change to Title IX’s hostile environment definition to resemble the Title VII standard more closely. Recipients will need to understand the potential conflict between the proposed hostile environment definition and First Amendment protections. Here, the court’s analysis emphasizes that any standard like Title VII must provide shelter for “core protected speech.” The hostile environment standard under the 2020 Title IX regulations is a significantly higher bar than the proposed changes or the Title VII standard, so First Amendment concerns may not have been top of mind for schools in the past few years. However, that may be about to change.
- This decision serves as a helpful reminder to schools with policies that may impact speech, such as campus speaker policies, discrimination and harassment policies, or protest policies. With midterm elections approaching on the heels of controversial Supreme Court decisions from this summer, schools should be reviewing and revising these policies as needed. First Amendment law can be challenging to navigate, so you should collaborate with your legal counsel or outside experts to vet your policies, as well as your implementation. The time to think about your policies is before an incident, not after. TNG Consulting provides services to help institutions ensure their policies are robust and up to date, as well as offering a number of training options, including First Amendment topics.
- Recipients will likely continue to encounter these kinds of state laws, designed more to score political points than to be constitutional. Title IX coordinators and other administrators should continue to work with their legal counsel to ensure their compliance with state law. But there is often room for schools to adopt policies and practices geared toward prevention and support for the populations targeted by the IFA. For example, the IFA prohibited only required trainings, but nothing in the law stopped an employer from incentivizing participation in an optional training. Faculty could offer extra credit for attending a program without running afoul of the law. Recipients could offer free or discounted tickets to an athletic or community event for participating in a training. Experiment until you find something that works for you and your schools’ values – because it may take a while for these types of laws to make their way into the courts.
Read more Keeping Up With the Courts blogs here.
 The court’s Fourteenth Amendment analysis does not appear in this piece.
 4:22-cv-227 (N.D. Fla. August 18, 2022) at 16.
 Id. at 24.
 Id. at 19.
 Id. at 25.
 Id. at 26.
 Id. at 27.