Civics: Ban on mandatory training of certain race topics “is a naked viewpoint-based regulation on speech.”

Scott Shackford:

The speech orientation of the law is clearly not neutral: It censors only one position on the controversy based on its viewpoint. Walker further rejects the state’s attempt to say that the act aims to regulate conduct, not speech. (This argument may be familiar to libertarians, who have seen states use it to try to unduly control who is and is not allowed to give advice.) Walker notes that laws against racist conduct at the workplace can be identified separately from speech. But IFA can only be understood through the lens of what is and is not said. It is entirely a regulation of speech, not conduct.

Walker then subjects the law to strict scrutiny, requiring the state to prove that it has a compelling interest to justify engaging in such censorship. To put it mildly, constitutional law is not on the state’s side here.

“The First Amendment does not give the state license to censor speech because it finds it ‘repugnant,’ no matter how captive the audience,” Walker writes. “And even assuming the IFA serves a compelling government interest—like prohibiting discrimination—it is not narrowly tailored. In large part, this is because the [Florida Civil Rights Act of 1992] already prohibited much of what Defendants claim the IFA aims to prohibit. For example, a diversity and inclusion training could be so offensive, and so hostile to White employees, that it could create a hostile work environment. That is already illegal—as both parties acknowledge.” Walker concludes that the IFA attacks ideas, not conduct, and so the plaintiffs are likely to win the case.

Walker also agrees with the plaintiffs that the IFA is “impermissibly vague” in how it defines the forbidden ideas, leaving it for the state to resolve and leaving employers unclear about what sort of discussion about race is and is not forbidden.