Florida’s Stop WOKE Act as a Content-Based Restriction

When Florida enacted the Individual Freedom Act in 2022, the legislature framed it as a measure to spare workers and students from compelled belief. Marketed by the Governor’s office as the “Stop W.O.K.E. Act,” HB 7 forbids employers and public educators from advancing a defined list of ideas about race, color, sex, and national origin. The drafting choice that has drawn the most judicial scrutiny is also the simplest to describe: the statute does not regulate when or how training and instruction occur, but rather which conclusions a speaker may reach. That orientation places the law squarely within the category the First Amendment treats with the most suspicion — a restriction defined by the content of the message, and in places by the viewpoint expressed.

What the statute actually prohibits

The Act operates through two channels. For employers, it amends the Florida Civil Rights Act so that requiring an employee to attend training that “espouses, promotes, advances, inculcates, or compels” belief in eight enumerated concepts becomes an unlawful employment practice. Fla. Stat. § 760.10(8). The concepts include propositions such as that members of one race or sex are morally superior, that individuals bear responsibility for past acts committed by others of the same race, and that a person should feel guilt or anguish on account of race or sex. A parallel provision, Fla. Stat. § 1000.05, reaches public-school and university instruction.

The statutory text contains a feature that proved decisive in litigation. An employer may sponsor the very same training and present the same eight concepts so long as it does so in a manner that treats them objectively rather than endorsing them. The trigger is therefore not the subject matter alone but the position the speaker takes toward it. A session that criticizes the idea of unconscious bias is permitted; one that promotes it is not.

Why “content-based” is the operative label

A law is content-based when, on its face, it applies to particular speech because of the topic discussed or the idea expressed. The Supreme Court restated that definition in Reed v. Town of Gilbert, 576 U.S. 155 (2015), and made clear that a facially content-based law triggers strict scrutiny regardless of any benign purpose the government claims. The Individual Freedom Act answers that description directly: to know whether a training session is lawful, an enforcer must read or listen to its message and measure it against the enumerated list. Speech about other subjects — punctuality, safety, or sales technique — is untouched.

The distinction matters because content-neutral regulations, such as limits on noise or on the time and place of demonstrations, receive intermediate scrutiny and frequently survive. Strict scrutiny is a far steeper climb. The government must show that the restriction is necessary to serve a compelling interest and is narrowly drawn to achieve it, a standard that few speech regulations satisfy.

The viewpoint problem layered on top

Content discrimination is constitutionally disfavored; viewpoint discrimination is treated as worse still. The Act does not merely single out the subject of race and sex; within that subject it permits one stance and forbids its opposite. A professor or trainer may argue that systemic racism is a myth, yet may not argue that it is real. The Supreme Court has described targeting particular viewpoints as an “egregious form of content discrimination,” Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995), precisely because it skews public debate toward conclusions the state prefers.

Florida defended the statute in part by recharacterizing the regulated activity as conduct rather than speech — the act of compelling attendance, it argued, not the message delivered. Courts reviewing the law were unpersuaded. The compulsion the statute targets is attendance at speech, and the line between a lawful and unlawful session is drawn entirely by what is said. Reframing expression as conduct does not remove it from First Amendment protection where the regulated harm is the communicative content itself.

How the courts have responded

The employer provision was preliminarily enjoined by the U.S. District Court for the Northern District of Florida in Honeyfund.com, Inc. v. DeSantis, 622 F. Supp. 3d 1159 (N.D. Fla. 2022), in an opinion that described the restriction as “the greatest First Amendment sin” and called aspects of the scheme “positively dystopian.” The court found the plaintiffs — including a wedding-registry company and a diversity consultancy — likely to succeed on the merits because the law discriminated by both content and viewpoint and could not clear strict scrutiny.

A separate challenge to the higher-education provisions produced a parallel result. In the consolidated Pernell v. Florida Board of Governors and Falls v. DeSantis litigation, the same district court enjoined enforcement against university instruction in November 2022, finding both viewpoint discrimination under the First Amendment and unconstitutional vagueness under the Fourteenth. The court reasoned that the state had effectively cast professors as its own mouthpieces, free to voice approved positions and barred from disfavored ones.

As of this writing, those injunctions remain in force and the State’s appeals are pending before the U.S. Court of Appeals for the Eleventh Circuit. The contest on appeal centers less on whether the Act is content-based — that much is difficult to dispute on the face of the statute — than on whether Florida can supply the compelling interest and narrow tailoring that strict scrutiny demands, and on the State’s recurring effort to relabel the regulated speech as employment or curricular conduct.

What remains unsettled, and what it signals

Two limits on the current rulings deserve emphasis. First, the injunctions are preliminary; they reflect a likelihood of success rather than a final judgment, and the appellate court could narrow or recast the reasoning. Second, the decisions to date have not disturbed the Act’s provisions governing K-12 public-school instruction, a setting in which the government’s authority to set curriculum is broader and the speech rights of public employees more constrained. The constitutional ceiling for compelled-belief restrictions in primary and secondary classrooms is a distinct question that these cases largely leave open.

The broader doctrinal lesson is familiar but worth restating. A legislature cannot insulate a speech regulation from strict scrutiny by describing forbidden ideas with precision; specificity about which messages are banned is the very thing that marks a law as content-based. The same analytical fault lines run through other contested speech statutes — from compelled disclosure in the workplace to surveillance practices examined in this publication’s coverage of geofence warrants and the Fourth Amendment and of employee privacy in remote work. For the Stop WOKE Act, the question on appeal is not novel doctrine but old doctrine applied to a new vehicle, and the answer will turn on whether Florida can do what content-based laws rarely manage: survive the most demanding standard in constitutional law. Additional analysis appears in the journal’s ongoing commentary.

Golden Gate Legal Review offers commentary and analysis on developments in the law; it does not provide legal advice.