Why Did a Federal Appeals Court Spike Florida’s “Stop WOKE Act”?

​When it comes to freedom of expression, the law cannot discriminate against viewpoints. The First Amendment is neutral, making it a guardrail against today’s speech police on the right and the left. As much as some might wish otherwise, the First Amendment contains no exception for regulations protecting dignity, flags, or anyone’s idea of speech that is reasonable or unreasonable.

Nor does the Constitution say anything about course catalogs at universities, as a Trump-appointed judge on the U.S. Court of Appeals for the 11th Circuit reminded Florida last week. The state’s 2022 Stop WOKE Act restricted how public higher education institutions can teach students about ideas concerning race and gender.

Judge Britt C. Grant previously ruled that by “limiting its restrictions to a list of ideas designated as offensive, the Act targets speech based on its content,” and that by “barring only speech that endorses any of those ideas, it penalizes certain viewpoints – the greatest First Amendment sin.”

In last week’s appellate ruling, Judge Grant doubled down, calling the law “a breathtaking assertion of power to ban unpopular ideas from public discourse.”

Viewpoint judgments will always provide slippery standards for would-be speech police. Viewpoints cannot be effectively controlled or legitimately adjudicated by law, or by official pressure campaigns and jawboning.

Protect The 1st has long been critical of the ideological monoculture on many U.S. campuses. The proper response to one-sided academic ideology, however, is not to pass laws that attempt to dictate countervailing ideology. Such efforts are doomed to fail, and not just in court. Attempting to legislate or regulate the inherently slippery nature of speech is a fool’s errand.
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The best approaches must be cultural. It is perfectly legitimate for legislators and donors to pressure universities to open discussion to all sides by declaring their institutions neutral forums – the very kind of spaces that should flourish under the First Amendment.

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