Wind v. Woke, or, Republican Rhetoric and Reality


Let us not launch the boat ...
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Florida Man Makes a Point, or, It Happened Again

A federal judge in Florida has issued an injunction against the state's "Stop WOKE Act". Much like a recent Georgia decision↗ about abortion, His Honor had a few things to say. Jeffrey Sachs↱ offers an overview of the order↱ from the District Court at Tallahassee. Sachs, for instance, observes the phrase, "positively dystopian, but omits part of the setup. Judge Mark Walker actually opens with a quote from Orwell's 1984: "It was a bright cold day in April, and the clocks were striking thirteen", and then goes on to add, in a footnote: "In this case, Defendants' 'argument is like the thirteenth chime of a clock: you not only know it's wrong, but it causes you to wonder about everything you heard before .... Coincidentally, Governor DeSantis signed the law at issue on April 22, 2022."

For the state of Florida, things only go downhill after that. Observing the State's argument that it has "unfettered authority to muzzle its professors in the name of 'freedom'", Judge Walker recounts and explains:

To confront certain viewpoints that offend the powers that be, the State of Flordia passed the so-called "Stop W.O.K.E." Act in 2022—redubbed (in line with the State's doublespeek) the "Individual Freedom Act." The law officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints. Defendants aregue 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.

And this section includes footnotes 2-4. Note two explains the connection between the Stop WOKE Act and its HB 7 title, "Individual Freedom Act". Notes three and four observe inconsistencies between the Defendants' (i.e., Florida) arguments in the case before the court and other statements in public and other litigation. Walker concludes his opening paragraph by again quoting Orwell, from The Fredom of the Press: "It should go without saying," Judge Walker explains, that "'if liberty means anything at all it means the right to tell people what they do not want to hear.'"

The next part is a review of the statute itself, and the point that the IFA prohibits "training or instruction that espouses, promotes, advances, inculcates, or compels" students or employees of the schools "to believe [eight specified concepts]", which Judge Walker enumerates. They are a supremacist's wish list, including the part about the hurt feelings of white men, per point 7.

And we ought to note, here, that suggestions and reminders about the law ostensibly applying to all ethnicities and sexes, as such, fail to observe history. The very premise of the point comes across as supremacist because this law did not need to be enshrined when schools taught—and still teach—tailored versions of history that blame Native Americans for being unsuitable as slaves, or Black people for being so terrible; that is, when it was white folks feeling good about defaming nonwhites, we did not need this kind of law. When it was men taking satisfaction in denigrating women, we did not need this kind of law. Or, perhaps, we did, and one of the things about the IFA is that Judge Walker can discern the difference. And inasmuch as American conservatives, and especially in the South, sound like shitposting internet arguments, one ought not need to be a judge to discern such differences.

It's not like we couldn't see this coming↗. The question remains: How does teaching history make white people, or men, feel badly about themselves? The fact of history once upon a time does not indict one in this later moment, but the fact of one's behavior in this later moment might. Does the history of wage discrimination make a boy feel badly about being male? Does the history of driving Black people out of an area and then building a lake on the site somehow make a white person feel badly about being white? How does that even work?

Tennessee threatened multimillion dollar fines over this kind of stuff, because what do we think happens next: If we teach the traditionalist American history that shames nonwhites, well, that, too, ought to be disqualified under the Tennessee rule, but there also remains a question of what anyone actually expects to happen next.

It's one thing if we tell the story of Abigail Adams reminding her husband to remember the ladies, and maybe we didn't teach the grim reality of how he responded. But it was never, as far as I know, actually illegal to teach that part. Still, if some white dude feels existentially diminished because John Adams was asshole, it might be worth figuring out why, because that would be dysfunctional.

And maybe we should move past page four. Page five opens by noting "a so-called 'savings clause'", which some of us might otherwise know as a severability clause, which retains the rest of a law if one component is found unconstitutional. The short form is found in the sixth footnote:

Section 1000.05(4)(b) is not a true "savings clause" in the sense that it requires the law's prohibitions to be construed so as not to infringe upon university employees' First Amendment rights. Instead, it serves to permit 'discussion' of the specified concepts, so long as that discussion does not stray from the State's viewpoint or those viewpoints the State allows.

The longer form takes up a couple pages, but the next section of the order summarizes the arguments. The contrast is striking:

Plaintiffs assert these provisions are unconstitutional under the First and Fourteenth Amendments. They ask this Court to enjoin enforcement of the challenged provisions, citing the Supreme Court's long history of shielding academic freedom from government encroachment and the First Amendment's intolerance toward government attempts to "cast a pall of orthodoxy over the classroom." See Keyishian … (1967).

Defendants respond that the First Amendment offers no protection here.

Take a moment. Plaintiffs cite the Supreme Court's history of shielding academic freedom; the State responds that the First Amendment does not apply. To the one, case history. To the other, an arbitrary claim.

Defendants respond that the First Amendment offers no protection here. They argue that because university professors are public employees, they are simply the State's mouthpieces in university classrooms. As a result, Defendants claim, the State has unfettered authority to limit what professors may say in class, even at the university level.

Even at the university level. I can recall 1992, when Oregon and Colorado had ballot measures that would have constrained both law and medical schools at the public universities, but the measure didn't pass in Oregon, and I don't recall the Colorado litigation ever getting that deep before the Supreme Court struck the law.

Alternatively, Defendants suggest that even if this Court is required to balance the State's interests against the professors' First Amendment rights, the State's interests always trump the professors' rights. According to Defendants, so long as professors work for the State, they must all read from the same music."

And footnote seven goes here, and while it is not as spectacular as some others, blunt force trauma is never pretty:

At the hearing, defense counsel asserted that the only limitation the First Amendment imposes upon the State when it comes to professors' in-class speech is prohibiting compelled expression of beliefs that professors do not hold … According to Defendants, the state is prohibited from compelling speech in the classroom, but it has absolute authority to limit expression.

And the subsequent section only continues the bludgeoning:

This Court pauses to offer an example of what this challenged law means if you accept Defendants’ position. At oral argument, Defendants conceded that concept six—as mentioned above, that "[a] person, by virtue of his or her race, color, national origin, or sex should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion"—is another way to describe affirmative action. When asked directly whether concept six is "affirmative action by any other name," defense counsel answered, unequivocally, "Your Honor, yes." Tr. at 91. Thus, Defendants assert the idea of affirmative action is so "repugnant" that instructors can no longer express approval of affirmative action as an idea worthy of merit during class instruction.

Walker considers that, "according to Defendants, university professors cannot even organize an in-class debate between guest speakers about the merits of affirmative action if one of those speakers were to espouse, promote, advance, inculcate, or compel students to believe or otherwise endorse the idea of affirmative action", and then observes, "It's worth keeping in mind that the State has chosen affirmative action as one of its eight concepts because the State has deemed it to be repugnant and 'noxious to the people of Florida'."

His Honor is not amused. O! the humanity!

"What does this mean," Judge Walker asks, "in practical terms?"

Stated otherwise, you can discuss affirmative action as a historical fact, and you can certainly condemn it as a failed policy, but because the idea of affirmative action is so odious, so repugnant, so vile, and so dangerous that it offends the basic principles of common decency, you cannot have a guest speaker submit their views in favor of affirmative action, even to a class of law students. What does this mean in practical terms? Assuming the University of Florida Levin College of Law decided to invite Supreme Court Justice Sonia Sotomayor to speak to a class of law students, she would be unable to offer this poignant reflection about her own lived experience, because it endorses affirmative action:

Footnote eight notes, "Of course, it is questionable whether the University of Florida Levin College of Law would ever choose to invite Justice Sotomayor, in light of its recent demonstration of anticipatory obedience to the powers that be." The Sotomayor citation is from her 2013 memoir, describing her relatioonship with affirmative action, that people's achievements are real, and "distinctions such as the Pyne Prize, Phi Beta Kappa, summa cum laude, and a spot on The Yale Law Journal were not given out like so many pats on the back to encourage mediocre students."

The brutality starts to feel cartoonish; we're only on page eleven. Walker considers the Sotomayor excerpt:

Indeed, in praising the affirmative action policy that opened a "special door" for her, Justice Sotomayor has expressed a viewpoint that the State of Florida deems repugnant and has prohbiited. Under the IFA, her words would be per se discrimination if she were to utter them as a guest speaker in a law school classroom.

The footnote is, well, number nine:

This Court recognizes that the constitutionality of affirmative action is presently before the Supreme Court of the United States .... This Court does not speak to that issue. However, this Court does note that promoting the legal merits of affirmative action is a far cry from equating affirmative action with hate speech.

And, honestly, one ought not need to be a judge to figure out that part.

The next section analyzes the arguments, and opens by observing "the disorienting nature of Defendants' arguments".

Given the disorienting nature of Defendants' arguments, it is necessary to address the bedrock First Amendment principles that govern this case .... This case squarely presents the tension in Florida between university professors' and students' First Amendment rights and the State of Florida's claim that it has an unfettered right to prohibit professors from expressing viewpoints with which it disagrees. Plaintiffs assert that the challenged restrictions amount to vague, viewpoint-based restrictions on protected speech that are presumptively unconstitutional and subject to strict scrutiny. Defendants, on the other hand, assert that because public university professors work for the State, their in-class speech is government speech beyond the First Amendment's reach. And even if the first Amendment does apply, Defendants Aargue, the State's actions must be judged by something akin to rational basis review.

This is a mauling, but we also get to see what it looks like when Judge Walker throws a bone: "In presenting their respective positions," he writes, "both sides go too far in conflating legal concepts, quoting language devoid of context from their source material, and ignoring controlling authority." It sounds like a lot, but it also describes a process of arguing to establish narrative that is not at all uncommon. But, here, we are at page twelve; His Honor signs off on page 139. His honor explains, "this Court does not get to cherry-pick convenient language to build an analytical framework that is unsupported by binding precedent", and footnote eleven reaches back to 1818: "Although we may have recently celebrated Halloween, that is no excuse to stitch together a new legal test resembling Frankenstein's monster. See generally, Mary Wollstonecraft Shelley, Frankenstein: Or, the Modern Prometheus".

Walker's court "must apply binding Supreme Court and Eleventh Circuit authority", and thus begins the longer, more technical explanation of the juridical bloodbath.

"Start with the basics", he recalls of a Sixth Circuit case last year, and then does just that, noting the First Amendment itself. Looking back to 1972, Walker reminds, "'above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.'" He reaches back to 1937 for the Due Process Clause, which applies the First Amendment to the States. That's how basic he gets. And then comes discussion of the history of recognized speech restrictions, leading to a reminder that, "While the concepts overlap—viewpoint discrimination is a recognized form of content-based restriction on speech—they are not always one and the same."

We might consider that the reminder is to accommodate the needs of the State of Florida. Walker recounts the juristic history of academic freedom and the role of universities, as well as the "need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safegaurds, to prescribe and control conduct in the schools", a formulation uttered in 1969.

We are still on this point by the time we get to page eighteen, when the judge notes, "At the hearing on Plaintiff's motions, both sides recognized this authority of the state to prescribe the content of its universities' curriculum. Indeed, this makes intuitive sense. Of course the State has a say in which courses are taught at its public universities."

The in-line citation on that is extraordinary:

Cf. Epperson, 393 U.S. at 116 (Stewart, J., concurring in result) ("A State is entirely free, for example, to decide that the only foreign language to be taught in its public school system shall be Spanish. But would a state be constitutionally free to punish a teacher for letting his students know what other languages are also spoken in the world? I think not."); id. at 111 (Black, J., concurring in result) ("It is plain that a state law prohibiting all teaching of human development or biology is constitutionally quite different from a law that compels a teacher to teach as true only one theory of a given doctrine. It would be difficult to make a First Amendment case out of a state law eliminating the subject of higher mathematics, or astronomy, or biology from its curriculum.").

We must remember that it is largely because of the State's arguments; footnote thirteen, in re both sides recognizing state authority, reaches back nearly a century:

As noted above, the State is afforded much greater flexibility to control public school curriculum. But this Court is mindful that the Supreme Court has suggested some limitation may apply. See, e.g., Meyer v. Nebraska, 262 U.S. 390, 402 (1923) (holding that state law criminalizing the teaching of foreign languages to students who had not yet passed the eighth grade in public and parochial schools—as applied to a parochial school teacher who was convicted of teaching the German language to a 10-year-old—violated the Fourteenth Amendment, because the statute was "arbitrary and without reasonable realtion to any end within the competency of the state").

It is because Florida brought the argument it has that the Court feels this sort of vivisection is necessary, because compared to Steward and Black circa 1968:

Defendants take it a step further, arguing that the State—though constitutionally barred from compelling professors to express the State's chosen belief—has an unfettered right to prohibit professors from expressing viewpoints with which it disagrees. Thus, according to Defendants, the content of a university curriculum may include the State's preferred viewpoint on the subject matter of prescribed courses and certainly excludes (at the State's discretion) any viewpoint hte State chooses to prohibit. Defendants ground this argument in the notion that anything professors utter in a state university classroom during "in-class instruction" is government speech, and thus, the government can both determine the content of that speech and prohibit the expression of certain viewpoints .... ("The in-class instruction offerred by state-employed educators is also pure government speech, not the speech of the educators themselves.").

And then check the lyrical flow: "Defendants reach this conclusion," Walker explains, "by cherry-picking language, devoid of context, from two cases in particular, namely, Rosenberger and Garcetti. And, again, the Court must walk us through the difference:

Here, again, Defendants point to this language to conflate viewpoint with content. They stretch the Court's discussion concerning the "University's own speech" to suggest that the Court really meant that the State has complete authority to prohibit university employees from expressing any viewpoint with which it disagrees. But that is not the law.

Contrary to Defendants' argument, Rosenberger did not hold or even suggest that everything a professor utters in a university classroom is the university's speech.

Rosenberger leads into Hazelwood, which, as polestar to the Eleventh Circuit Bishop test, requires the Court to take a brief detour. Short form, it all comes back to content and viewpoint, and the State's conflation thereof. The footnote on Hazelwood is complicated, but "Searcey remains binding on this Court, and informs the proper reading of Hazelwood in the context of this case", and then cites ACLU v. Miami-Dade County School Board (2009), "(Wilson, J., dissenting) (citing Searcey and noting that Hazelwood's standard 'does not, however, permit a school board to engage in viewpoint discrimination' when it removes books from the school system)."

If that seems like something of a mess, that would be the effect of the State's convolution. "Turning back to Defendants' main argument—" Walker continues "—that the First Amendment does not protect professors' in-class speech—they connect the professors' speech to the university's speech via Garcetti v. Ceballos, 547 U.S. 410 (2006)." The short form is to note the contextual sleight: "But the Supreme Court expressly declined to "decide whether [its government speech] analysis … would apply in the same manenr to a case involving speech related to scholarship or teaching." That is, "the Court recognized that 'expression related to academic scholarship or classroom instruction [arguably] implicates additional constitutional interests that are not fully accounted for by [the] Court's customary employee-speech jurisprudence." Walker also cites Souter in dissent: "I have to hope that today's majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write 'pursuant to … official duties.'"

Sometimes, one need not be a judge to discern the difference. Still, this is Florida. Walker makes the point explicitly: "Refusing to take 'no' for an answewr, Defendants assert this Court must apply Garcetti's reasoning to the professor speech at issue here, notwithstanding the Supreme Court's explicit refusal to do so."

In a way, it stands out that by page twenty-three, His Honor has not simply lost his temper. The permeating rebuke is an extraordinary sort of extraordinary. Walker continues:

Defendants cast the Supreme Court's clear constitutional concerns aside and suggest that "if Garcetti did not apply to curricular speech, it would invite 'judicial intervention' that is 'inconsistent with sound principles of federalism' .... In support, Defendants cite two cases from the Sixth and Seventh Circuits, noting that these courts have applied Garcetti to in-class instruction in the elementary and high school settings .... But, like the Supreme Court in Garcetti, the Sixth Circuit in Mayer declined to determine "how much room is left for constitutional protection of scholarly viewpoints in post-secondary education ...." Mayer, 474 F3d at 480. Indeed, the Sixth Circuit's holding was limited to the principle that "the first amendment does nto entitle primary and secondary teachers, when conducting the education of captive audiences, to cover topics, or advocate viewpoints, that depart from the curriculum adopted by the school system." Id.

Likewise, in Evans-Marshall, the Seventh Circuit distinguished the appellant's constitutional claim from Garcetti, noting that "she is not a teacher at a 'public college' or 'university' and thus falls outside the group the dissent wished to protect." In concluding that Garcetti applied to the appellant's speech as a public high school teacher, the Seventh Circuit empmhasized that different "constitutional rules applicable in higher education do not necessarily apply in primary and secondary schools, where students generally do not choose whether or where they will attend school." Id. at 344.

Allt his is to say that Defendants have identified no case, nor has this Court identified any authority—binding or persuasive—holding that Garcetti applies to university professors' in-class speech such that it amounts to government speech outside the First Amendment's protection. To the extend Defendants urge this court to determine that university professsors in-class speech is always pure government speech, the weight of binding authority requires this Court to decline the invitation.

And oh, the footnote. There is a weird in-line narrative bit about the footnote occurring in the subsequent paragraph, but note sixteen makes the point:

Defendants essentially ask this Court to engage in "judicial activism," since accepting Defendants' argument would require this court to substitute binding precedent with Defendants' policy preference. See Adam J. White, Beware the ABA's Own Version of 'Judicial Activism,' Washington Examiner (Oct.31, 2017, 4:14 PM) … ("Unaccountable judges sometimes mistake their own policy preferences for the proper rule of decision."); Ilya Shapiro, The Impact of Judicial activism on the Moral Character of Citizens, The Federalist Society (Oct. 28, 2010) … ("Activism is doing something that is not suppsoed to be the judicial role, or not being faithful to the Constitution ...."); James C. Dunlop & Tara A. Fumerton, The Illinois Supreme Court: Judicial Activism, with Limits, The Federalist Society (Oct. 15, 2004, 3:18 PM) … ("The judicial role does not properly contain within it a 'legislative' or 'policy-making' function.") But unlike Defendants, this court prefers judicial modesty to activism.

If you're wondering about the threshold for judicial vice, that is, at what point a judge is being excessive, it's kind of difficult to establish or define, because it is in its way relative to each case, but no, Judge Walker is well within that boundary. The appearance of sustained brutality alludes to another threshold; state attorneys have not necessarily broken any laws, but their case is itself frivolous and vicious, and because they have the prestige of the State of Florida, His Honor is obliged to endure and tolerate the State's solipsistic hubris.

From the footnote, though, back to the text: "In a similar call to activism," Walker continues.

… Defendants urge this Court to consider the Third Circuit's conclusion that 'a public university professor does not have a First Amendment right to decide what will be taught in the classroom" as persuasive authority for deciding that a university professor's in-class speech is never constitutionally protected .... (quoting Edwards v. Calif. Univ. of Penn., 156 F.3d 488, 491 (3d Cir. 1998) (Alito, J.)). In finding that the university's actions in Edwards "concerned the content of the education it provides," the Third Circuit held "that the First Amendment does not place restrictions on a public university's ability to control its curriculum." .... This holding relied in large part on Bradley v. Pittsburgh Board of Education, 910 F.2d 1172 (3d Cir. 1990). There, the Third Circuit held that a public high school teacher had no right "to choose her own curriculum or classroom management techniques in contravention of school policy or dictates," because "her in-class conduct is not [protected by the First Amendment]." Id. at 1176.

Other courts have held that university professors do not have a First Amendment right to control curriculum content. See, e.g., Clark v. Holmes[/i], 474 F.2d 928, 930 (7th Cir. 1972) .... But as explained above, this is hardly a groundbreaking proposition. Indeed, Bradley relies on Clark in holding that a public high school teacher's "in-class conduct is not [protected under the First Amendment]." Bradley, 910 F.2d at 1176 (citing Clark, 474 F.2d 928).

There are reasons why we drag ourselves through the excerpts. There is a certain dramatic tension; His Honor knows damn well who he is dealing with, but there is also a certain sense of astonishment at the depravity of the State's case. Perhaps we go to war with the army we have, as the saying goes, but what Florida brought is dysfunctional throughout. It's one thing if the State is putting the Court through a tough course, but it all seems arbitrary. Another reason to drag through the excerpts is that we can see how the arguments work, and part of what is extraordinary here is that Judge Walker is not simply rejecting the State's argument, but illuminating the misrepresentations, and even going so far as a second valence: The cited case cited another case, and neither case lends toward the State's representation of the record. That is, His Honor can see what is happening, knows how this political mess goes, and is neither fooled nor amused.

And we drag ourselves through the excerpts to remind how many words might be required to say something pretty simple and straightforward, depending on what needs one must specially accommodate. In this case, the State of Florida is bullshitting the Court, and a judge has only a few options, broadly speaking. This manner of making the point is pretty solid, but it takes a lot of effort.

And at page twenty-six, no, we're not going through all one hundred thirty-nine; at some point, the point ought to be clear, except it is, of course, a mess.

Having spelunked Edwards into Bradley into Clark, Walker turns to explain:

In short, these cases support the general proposition that the State is, of course, permitted to determine the content of its public school curriculum. A professor cannot decide to teach something entirely different or do an end-run around the prescribed curriculum by paying lip service to the subject they are supposed to teach and then spend the rest of class time instructing on something else. Defendants, however, ask the Court to raed these cases to conflate the State's right to make content-based choices in setting the public school curriculum with unfettered discretion in limiting a professor's ability to express certain viewpoints about the content of the curriculum once it has been set.

But that is not what these cases hold, nor does their reasoning extend so far. Although then-Judge Alito stated "that a public university professor does not have a First Amendment right to decide what will be taught in the classroom," he did so in the context of determining whether the First Amendment protects a professor's "choice of curriculum materials and the content and subjects of his classes." Edwards, 156 F.3d at 491. Given his broad pronouncement, this Court understands why Defendants would cherry-pick it from Edwards. But then-Judge Alito's concern was with a professor who sought to change the content of his course from one that "initially focused on how teachers can effectively use various classroom tools, such as projection equipment, chalkboards, photographs, and films," to the professor's chosen syllabi that "included a new emphasis on issues of bias, censorship, religion, and humanism ...." Id. at 489.

If this seems to be a judge taking very many words to make the point that State's attorneys have misrepresented the historical record, yes, that would be the gist; again, His Honor sees what is happening and knows how it goes, and is neither fooled nor amused.

Over and over again: "Edwards is fairly read to affirm the State's ability to control the curriculum in public schools." This is a general point. "At most … Alito's reasoning implicitly extends to suppression of certain viewpoints from a professor who teaches the approved curriculum." This is more specific, and, as we can see, comparative. "At most," Judge Walker suggests. "But this court need not determine the correct way to read Edwards, as it is bound not by the Third Circuit's holdings—express or implicit—but by the Eleventh Circuit's holdings." This is very particular. He has picked up an object of the State's argument, Edwards, as a general point, and considers a projected particular inasmuch as it is still insufficient, and then sets the object aside, reminding that it doesn't matter, anyway. He picks it up, examines it, sets it aside; it is a careful demonstration as if speaking slowly to someone who doesn't understand. And then Judge Walker takes it further:

… this court need not determine the correct way to read Edwards, as it is bound not by the Third Circuit's holdings—express or implicit—but by the Eleventh Circuit's holdings. And as we discussed on the record at the hearing in this case … Alito distinguished his holding from the Eleventh Circuit's opinion in Bishop, describing the Eleventh Circuit as "finding that a public university's restrictions on a professor's in-class speech 'implicated First Amendment freedoms.'" Edwards 156 F3d at 491 ("But see Bishop v. Aronov, 926 F.2d 1066, 1075 (11th Cir. 1991)"); see also The Blooebook: A Uniform System of Citation R.1.2.(c), at 63 (Columbia L. Rev. Ass'n et al. eds., 21st ed. 2020) (defining but see as a signal that indicates contradiction when the "cited authority clearly supports a proposition contrary to the main proposition"). Accordingly … Alito recognized that the Eleventh Circuit had reached a different conclusion—that if Bishop stands for anything, it is that the First Amendment places some limit on the State's ability to prohibit what a professor may say in a university classroom.

This is a judge going out of his way to be tacit about upbraiding an attorney for misrepresenting a federal judge. And we might actually have a chance to see how Justice Alito reacts and responds, if this reaches the Supreme Court.

But neither is it mere vice impelling Judge Walker, who knows who he is dealing with, to bludgeon the State with their own ostensible politics. The Court is not fooled, His Honor is not amused. But the craven arbitrariness of Florida's argument betrays its own political history; to a certain degree, Walker cannot help but drop conservative arguments on Sunshine State conservatives.

But it is also here, at page twenty-eight, that the focus shifts: "The question remains—how is this court to evaluate Plaintiffs' First Amendment Claims?" And this is a more efficient explanation: Keyishian in the Eleventh, and the pall of orthodoxy; a turn to Kingsville in the Fifth, a 1980 decision cited in 2017 as the Eleventh noted Garcetti "has since altered the analysis", in Wollschlager en banc; the Fifth affirmed Kingsville in 2019, finding in Buchanan that it "remains good law", and quoting Keyishian, that "academic freedom is 'a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.'"

Again, Judge Walker can reach deeply into the case history. He returns to Bishop, recalling that the Eleventh "acknowledged … that the First Amendment protects university professors' in-class speech and sought to fashion a test that would appropriately balance the speaker's Fist Amendment rights with the university's special interests in enforcing some limitations on that speech." The history runs through Hazelwood, and, "Ultimately, the balance involves 'a case-by-case inquiry into whether the legitimate interests of the authorities are demonstrably sufficient to circumscribe a teacher's speech", and that part quotes Malloux, First Circuit, 1971.

And the Court must follow Bishop's balancing test because the Eleventh Circuit has not yet reversed itself, en banc, and the Supreme Court explicitly declined to extend its employee-speech analysis in Garcetti to "speech related to scholarship or teaching." In short, two things are clear: (1) the First Amendment protects university professors' in-class speech and (2) Bishop remains the binding authority guiding htis Court's analysis of Plaintiff's speech claims.

This is pretty straightforward, and it is a noticeable theme. Judge Walker, when addressing Plaintiffs' claims, delivers somewhat concise explanations. "Next," he writes, "this Court must determine whether a different analytical framework applies to the students' claims as compared to the professors' claims." That part is resolved in the same paragraph. Actually, the next sentence. "As discussed on the record at the hearing … the Professor Plaintiffs' First Amendment claims and the Student Plaintiffs' First Amendment claims—though caled by different names—are coextensive based on the context of this case." The Court, then, applies the same analytical framework for both.

And if His Honor spends a couple pages, then, on the logic and history of coextensive rights, it might, or not, seem signifcant that the exploration leads to a very basic principle: "If both claims were viewed and analyzed independently … that analysis could potentially lead to an illogical result—namely, that university students have an independent right to viewpoints that their professors do not have a right to share."

And then, observing the facts, Judge Walker offers a "final point of clarification", by which he shows that one of the student plaintiffs has standing for the purposes of preliminary injunction, while one does not. And thus he turns toward the merits of the Plaintiffs' motions for preliminary injunction.


Yes, it really is worth noting: What makes those thirty-three pages so complicated is Florida's argument. Disjointed misrepresentation is the stuff of internet discussion board disputes. As Judge Walker repeatedly scrapes away the layers to bring the case back to the basics, it reads like he is responding to scraps of make-believe cobbled together with no care for consistency unto itself.

And there is, in fact, much to say, about law and process and jurisprudence, about the conservative condition, and the American condition. And there are those who will never answer for what they have done; nobody gets it through the legislature and into the courts on such weak merit unless everyone else lets them. It's one thing to pretend contradiversity and chide at being afraid of what others have to say, but that was never actually the point.

It's like the rhetoric of twenty-two dead in El Paso, or forty-four billion dollars spent on Twitter. Now it's in the state houses and in the courts, and we can only wonder about those advocates who weren't what they defended or legitimized, just opposed to particular criticism of people they aren't and have nothing to do with. It's not like they were ever believable, but it's easy enough to notice they aren't standing up proudly to be recognized for their good work.


Walker, Mark E. "Order Granting in Part and Denying in Part Motions for Preliminary Injunction". Pernell v. Florida / Novoa v. Diaz. U.S. District Court Northern District of Tallahassee. 17 November 2022.

What was decided in this case?

A conservative "anti-woke" bill constraining curricula at all levels of public education in Florida; the federal court at Tallahassee granted injunction against the state's "Individual Freedom Act", preventing its implementation at public universities.

What stands out in the judge's language is its constant suggestion of mendacity; it reads like the state's attorneys took their notes from internet arguments.
Resource Update

The Fire has apparently pulled Judge Walker's order from its servers. Here is a copy via ACLU:

Walker, Mark E. "Order Granting in Part and Denying in Part Motions for Preliminary Injunction". Pernell v. Florida / Novoa v. Diaz. U.S. District Court Northern District of Tallahassee. 17 November 2022. 27 July 2023.