It’s no Surprise that Florida’s Anti-WOKE Law violates freedom of speech

Forty-eight years ago, my family escaped the antisemitic, government-controlled, authoritarian regime in the former Soviet Union. It was a place where being "Jewish" was essentially a crime. My parents fled to America with me, my brother and our grandmother for one reason: freedom. While we spoke no English, only had $350 in our pockets (all the Soviets would allow to take) and there were no guarantees, to take a line from the great Roberto Clemente, "America has been very good to me!" One of the reasons I became a lawyer is that I too wanted to be part of making democracy work. I wanted to "do justice" and make sure that the rule of law was defended and endured. In some respects, I feel it was fate because under Soviet rule, there was no hope to succeed.

Last week, our collective freedom and democracy dodged a bullet, when U.S. district judge Mark Walker said, in a 44-page ruling, that Florida's "Stop WOKE Act" regulating race-based conversations was unconstitutional, writing it violates the First Amendment and is "impermissibly vague." That vagueness, of course, was no doubt by design. Like Florida's "Don't Say Gay" legislation before it, the "Stop WOKE Act" was written in such a way that teachers and businesses could conceivably be sued for just about anything by anyone. I thought conservatives were closer associated with tort reform.

In Honeyfund.com v. Ron DeSantis, 4:22-cv-00227 (U.S. District Court for the Northern District of Florida, July 22, 2022), Judge Walker ruled, "It is unclear what is prohibited, and even less clear what is permitted." Judge Walker wrote "Imagine an employer, during a mandatory seminar on dispute resolution, cites the civil disobedience exemplified by Martin Luther King Jr. and Mahatma Gandhi as a peaceful, preferred approach. Has that employer 'inculcated' employees with the belief that Black and Asian people are morally superior to white people?" Of course, the answer is a resounding "NO."

As an employment lawyer who regularly conducts training (based on regulations promulgated by the Equal Employment Opportunity Commission and the California Civil Rights Department), it would seem counter-intuitive (to say the least) to prohibit private employers from training or teaching anti-discrimination, diversity, equity and inclusion in the workplace. Wouldn't that be going backwards?

While the majority of large employers vocally opposed the Florida law saying that their hands would be tied to follow federal rules and regulations, it seems foolish to ban speech associated with inclusion and anti-discrimination, protected by the First Amendment. Laws like the "Stop WOKE Act" harkens to oppressive regimes like China, Iran, North Korea and Russia, who all ban free speech. Those countries aren't WOKE. Have we really arrived at the time where the third most populous state in America, with twenty-two million people, tries to ban free speech, enshrined in our Constitution? Thankfully, as if to pull Florida back from the brink, Judge Walker enjoined the "Stop WOKE Act" and its goal of making workplace discrimination prevention training unlawful.

Comparing Florida's legislative effort to the "upside down" of the television series Stranger Things and its "parallel dimension containing a distorted version of our world," the Court found the law attacked ideas, not conduct, and reminded those state legislators offended by such training that the remedy "is more speech, not enforced silence." Judge Walker noted, "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." For employment lawyers like me, who work daily to counsel, train and teach anti-discrimination, diversity, equity and inclusion, this is a welcome sign that our work will not be halted, even in Florida.

Make no mistake, freedom of speech and anti-discrimination laws are not colored red or blue but apply to all of us. This legislation was another attempt to attack the freedoms that millions of Americans have fought and died for over the last 246 years. This case is a clarion call for Americans who believe in freedom to stand up and say with a loud and unified voice that free speech is at the bedrock of our democracy and we cannot be silenced or told what to say by the government.

In August 1963, 59 years ago this month, Martin Luther King gave his famous "I have a dream" speech in Washington D.C. While it would be wonderful if we lived in a nation where our children are not judged by the color of their skin but by the content of their character, that day has not yet arrived. So, we have to do the hard work and educate folks about diversity, equity and inclusion. It's more important now than ever before. Trust me, my work defending against employment discrimination has not slowed.

When done right, DEI work connects individuals through shared learning experiences and mutual understanding. DEI programs buildup engaged and happy employees who are bonded and unified. Multiple studies have shown that organizations with DEI initiatives are more likely to have employees with increased job satisfaction, higher levels of trust, and more engagement. Why is DEI training important in the workplace? The simple truth is that employers who create diverse and inclusive workplaces get sued less - and fewer claims mean lower legal budgets or nuclear jury verdicts.

Workplaces where employees share unique perspectives, respect one another's individual needs, and reach their full potential without barriers are places where there is less turnover, less harassment, less bullying and less discrimination, which improves productivity and even lowers workers' compensation claims. As a result, inclusive workplaces see greater innovation, larger financial returns, outperform competitors, and improve employee experiences.

While the current Florida governor appears to be obsessed with eliminating what he describes as woke ideology, claiming that "wokeness" is a form of "cultural Marxism," I beg to differ. Marxism is what my family and I escaped from in 1974. The term "cultural Marxism" is in reality a far-right update on an old antisemitic conspiracy theory used by Nazis in the 1930s called "cultural Bolshevism," and was directly associated with the concept of Jews controlling minorities in academic and intellectual efforts to subvert Western culture. This used to be a fringe thought, espoused by white supremists like David Duke. Apparently, no longer.

Sadly, recycled Nazi and white supremist ideology is now more mainstream and espoused by elected politicians who are not made accountable for their bigoted and narrow-minded rhetoric. Of course, one might argue that the real danger to society is wannabe autocrats who want to dictate what people are allowed to say in public or do in the privacy of their own home. Hopefully, together, as Americans, we can continue the fight to ensure that our nation continues to be the shining city on the hill, where immigrants from oppressive regimes and foreign lands continue to come for freedom.