Florida Is Where the First Amendment Goes to Die

Florida Is Where the First Amendment Goes to Die

Aaron Terr — Read time: 10 minutes

Florida Is Where the First Amendment Goes to Die

For Ron DeSantis, all is fair in winning the culture war, even attacking constitutionally protected free speech rights

In the 1925 case Gitlow v. New York, the Supreme Court held that the First Amendment binds not only the federal government, but state governments, too. If the Court were able to see 100 years into the future, it might have specifically noted, “That includes you, Florida.”

In the past few years, the Sunshine State has been the site of one attack on the First Amendment after another. It’s hardly the only place in America where free speech is in jeopardy, to be fair. But Florida is at the vanguard of efforts nationwide to suppress speech and enforce ideological conformity.

Attacks on Campus Free Speech

When Ron DeSantis became Florida’s governor in 2019, there was reason for optimism about an expansion of freedom of expression in the state. In April of that year, he called on Florida’s colleges and universities to adopt the “Chicago Statement.” It’s a resolution that my organization, the Foundation for Individual Rights and Expression (FIRE), endorses as the “gold standard” of institutional commitments to free speech on campus because it establishes, for example, that "it is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.” That move built on the progress made by passage of the state’s speech-protective Campus Free Expression Act in 2018, which codified that same principle.

But things started to go downhill last year when Gov. DeSantis signed the “Individual Freedom” Act (more commonly known as the “Stop WOKE Act”) into law. Ironically, the law abridges individual freedom by restricting how faculty at state institutions may speak about controversial subjects like race and sex in the classroom. It lists several concepts that faculty may not “espouse” or “advance,” such as the view that an “individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.” That could, taking just one example, make it unlawful for professors to present arguments in favor of affirmative action or reparations for slavery. Whatever one thinks of the merits of those ideas, it’s well within a professor’s academic freedom to discuss, debate, and take positions on them in class.

FIRE sued to challenge the Stop WOKE Act’s higher education provisions on First Amendment grounds. In defending the law, Florida took the astonishing position that faculty at public universities are mere government mouthpieces, rather than scholars with constitutionally protected academic freedom, as the Supreme Court has recognized. That freedom is essential to a university’s fundamental mission to produce and disseminate knowledge.

In a ruling last November, a federal court agreed with FIRE (and the ACLU and the NAACP Legal Defense Fund, which filed separate suits) and halted enforcement of key parts of the Stop WOKE Act. The court called the law “positively dystopian” and explained that the “First Amendment does not permit the State of Florida to muzzle its university professors, impose its own orthodoxy of viewpoints, and cast us all into the dark.” Of course, the state has appealed that decision.

But a court defeat didn’t stop Florida lawmakers from stepping up efforts to purge campuses of ideas they dislike. Last month, Florida state legislators introduced House Bill 999 and its Senate counterpart Senate Bill 266. Both are essentially the Stop WOKE Act on steroids. That’s right—they’re seeking to expand on a law declared unconstitutional by a federal court by adding more First Amendment violations into the mix.

The new legislation, which Gov. DeSantis previewed in January, would impose even more limits on the freedom of students and faculty to discuss and explore ideas in college classrooms and beyond. It would require faculty to censor their classroom discussion and materials in general education courses to avoid ideas “associated with Critical Theory, including, but not limited to, Critical Race Theory, Critical Race Studies, Critical Ethnic Studies, Radical Feminist Theory, Radical Gender Theory, Queer Theory, Critical Social Justice, or Intersectionality.” The House version would also ban majors and minors based on these subjects or that “promote” any of the Stop WOKE Act’s forbidden concepts.

HB 999 reaches beyond the classroom and curriculum, too. It would impose viewpoint-based funding restrictions that limit the ability of recognized student groups to receive assistance from their campus administrations for any activities—including distribution of student newspapers and other publications or hosting guest speakers—that promote certain disfavored views. The activities cannot promote the Stop WOKE Act concepts, advocate for DEI, or promote or engage in “political or social activism.” As with the Stop WOKE Act, if this legislation is enacted, a court should enjoin it before it goes into effect.

Under this legislation, faculty would be similarly restricted in their ability to organize panels, conferences, and other academic programming around these ideas. Meanwhile, student organizations and faculty engaged in activities in line with the government's views would remain eligible to partner with administrations. And if all that weren’t enough, HB 999 threatens to undermine academic freedom further by allowing the chairs of the boards of trustees to initiate a post-tenure review at any time—even without cause—effectively eliminating tenure. And it would give university presidents and politically appointed trustees significant control over hiring and firing decisions.

It isn’t just college students and professors whose expressive rights are under threat in Florida. Across the state, K-12 schools say they are clearing their library shelves of books for fear of running afoul of a new law targeting libraries. And Florida’s attack on First Amendment freedoms extends beyond the educational context.

Going After the First Amendment Rights of Big Tech

In 2021, the Florida Legislature passed Senate Bill 7072, which prohibits social media platforms from banning political candidates or restricting content from candidates and media organizations. Republicans have long raised concerns that Big Tech has an anti-conservative bias. Gov. DeSantis said the law will hold Big Tech accountable if they “discriminate in favor of the dominant Silicon Valley ideology,” while Lt. Gov. Jeanette Nuñez claimed the law would combat efforts to “silence, intimidate, and wipe out dissenting voices by the leftist media and big corporations.” Concerns about large social media platforms regulating their users’ speech in arbitrary or politically biased ways—with little process or transparency—aren’t something to brush aside. We’ve reached the point where a handful of companies have tremendous power to shape conversations about important public issues. But the solution is not to violate these private platforms’ own First Amendment right to exercise editorial judgment.

Social media companies are akin to “parade organizers and cable operators,” wrote the U.S. Court of Appeals for the Eleventh Circuit in upholding an injunction against SB 7072’s key provisions, because they’re “in the business of delivering curated compilations of speech created, in the first instance, by others.” The decisions a private company like Twitter or Facebook makes about what content to remove, keep up, deprioritize, or promote are inherently expressive and thus protected by the First Amendment.

Recasting these decisions as unprotected censorship—as the Fifth Circuit did in regrettably rejecting a challenge to a similar Texas law—not only violates the rights of social media behemoths, it creates a framework that could reach smaller speech-hosting forums and websites that moderate content according to community rules. Taken to its logical conclusion, the Fifth Circuit’s reasoning could potentially justify a law forcing even brick-and-mortar establishments like bookstores and movie theaters to distribute speech against their will.

Protecting Public Figures, Exposing Ordinary Citizens

Florida’s government is justifying its edicts on social media companies on grounds that users are entitled to wide access to diverse political viewpoints. But if it truly wants to protect the rights of social media users, it should forcefully reject other bills introduced this year that would expose the same users to legal jeopardy for criticizing the powerful. HB 991 and SB 1220 would upend defamation law in defiance of well-established Supreme Court precedent protecting the right to speak freely about public issues. These proposals carve out exceptions to the “actual malice” standard, which requires public officials and figures suing for defamation to prove the speaker knew the words were false or had serious doubts that they were true. They would also hobble investigative journalism by creating a presumption that anonymous sources aren’t telling the truth. And they would neutralize Florida’s anti-SLAPP law, which discourages targets of criticism from bringing meritless lawsuits to intimidate their critics into silence.

The actual malice standard comes from the Supreme Court’s 1964 landmark decision New York Times Co. v. Sullivan. Gov. DeSantis has criticized the decision and said the proposed reforms are necessary to “stand up for the little guy against these massive media conglomerates.” But Sullivan safeguards the democratic function of free speech. It gives not only the media but ordinary citizens the breathing space necessary to participate in “uninhibited, robust and wide open” debate on public issues without risking financial devastation.

Whether you’re a liberal or a conservative, and whether you’re criticizing the president, your local school board, or any other public official, Sullivan protects you if you unwittingly get a factual detail wrong. The First Amendment doesn’t protect deliberate lies that damage a person’s reputation, but it recognizes that vigorous and messy public debate—which inevitably includes some inaccurate speech—is a basic feature of any healthy democracy.

Perhaps the most striking legislative proposal to come out of Florida recently is a Republican-sponsored bill that would force bloggers writing about state officials to register with the state within five days if they receive compensation for the post. The bill is a flagrant attack on both a free press and the right to speak anonymously. Fortunately, unlike the previously discussed bills, this unconstitutional proposal does not have the governor’s support.

Free Speech versus the Culture War

At this point, one would think I’ve covered every recent free speech debacle in the state. But wait, there’s more!

Last spring, Gov. DeSantis successfully called on the state legislature to revoke The Walt Disney Company’s special tax district status after Disney’s CEO expressed opposition to the “Parental Rights in Education Bill” (dubbed the “Don’t Say Gay” bill by critics). And Florida’s government has also been cracking down on drag shows, which DeSantis has said are “inappropriate” for minors.

Last December, the state tasked undercover agents with recording a performance of “A Drag Queen Christmas” in Orlando. The agents photographed three minors in the audience who appeared to be accompanied by adults. They reported that while some performers wore “provocative” outfits, the agents didn’t witness any “lewd acts.” But that didn’t stop Florida’s Department of Business and Professional Regulation from moving to revoke the venue’s liquor license for allegedly exposing children to sexual content. The Department also filed a complaint against the Hyatt Regency Miami for hosting the same event, and it’s going after a Miami restaurant for hosting a “drag brunch.”

Drag shows are a form of artistic expression protected by the First Amendment. They’re not everyone’s cup of tea, sure. But as one court aptly noted, “The First Amendment is not an art critic.” Although obscenity is a well-known First Amendment exception, there’s no evidence that anything at these performances remotely approached the Supreme Court’s high bar for obscenity. If “provocative outfits” and sexually tinged performances were all it took, the police could run onto the field at Hard Rock Stadium and haul away Miami Dolphins cheerleaders in handcuffs.

And while the government may regulate the so-called “secondary effects” of expression that includes nude dancing and/or sexually explicit performances (such as increased crime), it may not regulate these forms of expression based on objection to the content, nor may it regulate differently based on whether or not a performer is in drag.

Ain’t No Sunshine When Free Speech Is Gone

Florida has been keeping organizations like mine extremely busy, and not in a good way. The state stands out for the rate at which threats to free speech continue to proliferate, and many expect its governor to run for the presidency.

Unfortunately, Florida has a lot of competition for the crown. It’s all too easy to find similar efforts to roll back expressive rights in many other states—whether it’s bills and proposals targeting drag shows, public library collections, abortion-related speech, or what’s fair game for discussion in college classrooms; laws requiring websites to address “hate speech” and proposed “bias hotlines” that solicit complaints about constitutionally protected speech that someone might find offensive; increased attempts to sanction faculty members for merely saying something controversial; colleges and universities subjecting faculty to ideological litmus tests for hiring or promotion; or any number of other rights violations.

Fears that the entire country is entering a free speech recession are not overblown.

That’s why we all need to stay vigilant against threats to our most basic freedom. Disregarding the First Amendment for short-term political gain might be superficially appealing, but in the long term, this strategy will erode the foundations of knowledge-producing institutions and our democratic republic. For evidence, look at what’s happening in other countries around the world that lack freedom of speech.

As David French recently argued, we can clash over contentious political topics, but we need “a legal corollary to the golden rule: Defend the rights of others that you would like to exercise yourself.” We need a renewed national commitment to the First Amendment and free speech as a cultural value, not just for ourselves and our political allies, but for everyone.

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