First Amendment advocates are weighing in and asking the 11th Circuit Court of Appeals to uphold a 2022 lower court decision blocking Florida’s controversial Stop W.O.K.E. Act from taking effect—including lawyers for the award-winning nonprofit publisher The New Press. In an amicus brief filed last week, New press attorneys told the court that the specter of the draconian law coming into force has already “impeded” the publisher's academic mission and negatively impacted sales in the state.
“This statute—which prohibits Florida professors in state colleges from endorsing an enumerated list of viewpoints, including those recognizing the existence of systemic racial inequality—has chilled the distribution of The New Press’s books on Florida campuses,” the brief reveals, noting that many New Press titles "espouse viewpoints prohibited by the law," in particular, books involving race relations and criminal justice reform. “A significant portion of the New Press’s book sales occur at colleges: when a professor assigns a book for discussion, a bookstore attendant upon the college will order a relevant quantity of the book to be available for student purchase. Since the passing of the Act, when a professor has felt compelled not to assign or recommend a New Press book for reading, such sales have ended.”
Florida governor Ron DeSantis signed the Stop W.O.K.E. (Wrongs to Our Kids and Employees) Act, also known as HB 7, on April 22, 2022, hailing the effort as the centerpiece of his “anti-WOKE” legislative agenda. On August 18, 2022 a group of Florida educators and students supported by the ACLU filed suit challenging the law on Constitutional grounds. And on November 17, 2022, federal judge Mark Walker issued a preliminary restraining order blocking the law from taking effect.
“The law officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints,” Walker observed in his 140-page opinion and order. “Defendants argue that, under this Act, professors enjoy ‘academic freedom’ so long as they express only those viewpoints of which the State approves. This is positively dystopian.”
In March, the 11th Circuit refused to stay Walker’s preliminary injunction blocking the law from taking effect. But the court is now considering the case on the merits, with a host of critics—including publishers—arguing that the law clearly violates the First and Fourteenth Amendments by imposing unconstitutional, discriminatory “viewpoint-based restrictions” on teachers and students in the state.
Florida officials, however, insist the law falls within the state's power to regulate curricula in the state. “The constitutional question in this case thus boils down to this: Who decides what is, and is not, to be taught in Florida’s college classrooms—individual professors or their employer, the state,” Florida state lawyers argued in an April brief. And in a theory that critics say would harm public education if sanctioned, Florida argues that the state has the right to regulate the lessons of professors teaching in "the State’s classrooms, on the State’s time, in return for a State paycheck."
But the law, The New Press amicus brief argues, “wears its prejudice on its sleeve,” with its stated purpose to “silence one side of the debate on matters of the highest public concern” and to dictate concepts that Florida educators may or may not express in the classroom—such as critical race theory.
"Far from a valid regulation of school curriculum," Florida officials have has made no secret of the law's "true discriminatory purpose," The New Press brief argues: to "tilt the academic debate in favor of the State’s preferred opinions,” and to banish so-called "woke" ideas.
“Professors on Florida public campuses justifiably fear the consequences of appearing to endorse any of these proscribed viewpoints in their course instruction. Such consequences include causing their college or university to become ineligible for performance funding, risking disciplinary measures, and facing termination for failure or refusal to comply with the statute’s provisions," the brief explains. "The Act, in essence, subjects professors to the Hobson’s choice of either risking these consequences or self-censoring—thereby preventing them from freely teaching subjects such as structural racism, policing and criminal justice, critical race theory, and implicit bias.”
The New Press is one of the nation’s leading publishers of progressive ideas, including national bestsellers as Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness (which, the brief notes, has sold some 1.8 million copies); Critical Race Theory: The Key Writings That Formed the Movement, a collection of essays by Kimberlé Crenshaw; Brown Is the New White: How the Demographic Revolution Has Created A New American Majority, by Steve Phillips; and Elie Mystal’s bestselling Allow Me To Retort: A Black Guy’s Guide to the Constitution. In 2021, New Press publisher Ellen Adler was named Publishers Weekly’s Person of the Year.
The brief also calls out Florida’s leading role in what the brief calls a nationwide “burn the books” campaign, “rendering it essential” that the 11th Circuit send a strong message by holding the legislation to be unconstitutional.
"Florida’s Stop W.O.K.E. Act is but one state legislative measure in the nationwide campaign against books and ideas that do not conform to anti-woke orthodoxy,” the brief states. “It is respectfully submitted that it is essential for this Court to act forcefully to affirm the District Court’s issuance of a preliminary injunction to stem the tide of these flagrant attacks on First Amendment rights in the education context—in Florida, specifically, and then, by way of precedent, across the nation.”
At press time, the 11th Circuit has yet to set a date for oral argument in the case.
