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Lawyers for Gov. Ron DeSantis and Attorney General Ashley Moody are fighting an attempt to block a state law and regulations that limit the way race-related issues can be taught in public schools and in workplace training.

In a court document filed last week, the lawyers argued Chief U.S. District Judge Mark Walker should reject a request for a preliminary injunction in a lawsuit filed in April after DeSantis signed the controversial law (HB 7). Walker is scheduled to hold a hearing June 21 on the preliminary-injunction issue, according to a court docket.

Plaintiffs in the case allege that the law and regulations violate First Amendment rights and are unconstitutionally vague. But in the 60-page document filed last week, lawyers for DeSantis and Moody disputed that the restrictions violate speech rights in schools and workplaces.

Here, the act does not prevent the states educators from espousing whatever views they may hold, on race or anything else, on their own time, and it does not prevent students from seeking them out and listening to them, the document said. All it says is that state-employed teachers may not espouse or advocate in the classroom views contrary to the principles enshrined in the act, while they are on the state clock, in exchange for a state paycheck. The First Amendment does not compel Florida to pay educators to advocate ideas, in its name, that it finds repugnant.

But in an April motion for a preliminary injunction, lawyers for the plaintiffs argued that DeSantis and other Republican leaders banned teachers and employers from endorsing a litany of opinions about race that had been stuck in their craw, such as institutional racism, white privilege and critical race theory.

This constitutional challenge is not about whether these ideas are right or whether they should be taught throughout Floridas schools and workplaces, the 53-page motion said. Rather, it is about an attempt by Floridas conservative politicians to silence exchange of these ideas and win a so-called culture war through legislative and executive fiat.

DeSantis this year made a priority of passing the law which he dubbed the Stop Wrongs Against our Kids and Employees Act, or Stop WOKE Act. It came after the State Board of Education last year passed regulations that included banning the use of critical race theory, which is based on the premise that racism is embedded in American society and institutions.

The law, which is scheduled to take effect July 1, lists a series of race-related concepts that would constitute discrimination if taught in classrooms or in required workplace-training programs.

As an example, part of the law labels instruction discriminatory if it leads people to believe that they bear responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, national origin or sex.

As another example, the law seeks to prohibit instruction that would cause students to feel guilt, anguish or other forms of psychological distress because of actions, in which the person played no part, committed in the past by other members of the same race, color, national origin or sex.

The plaintiffs in the lawsuit are two public-school teachers, a University of Central Florida associate professor, a child who will be a public-school student in the coming year and the president of a firm that provides workplace training.

In the motion for a preliminary injunction, the plaintiffs attorneys from the Jacksonville firm of Sheppard, White, Kachergus, DeMaggio & Wilkison, P.A. wrote that the law and regulations intrude on the free expression and academic freedom of Floridas teachers by imposing a pall of orthodoxy over the classrooms.

These provisions suppress a wide range of viewpoints accepted by academics for the sole reason that Floridas conservative lawmakers disagree with them, the motion said. Even if such disagreement could form a legitimate government interest, Governor DeSantis failed to identify any actual examples of what he calls critical race theory being taught in Florida public school classrooms.

The plaintiffs attorneys also alleged that the restrictions ensure students learn only a white-washed version of history and sociological theories that ignore systemic problems in our society that create racial injustices.

But in the document filed last week, the lawyers for DeSantis and Moody wrote that the plaintiffs who are educators have no constitutional right of academic freedom to override curriculum policies adopted by democratically elected lawmakers.

Plaintiffs First Amendment challenge to the educational provisions fails because the act regulates pure government speech the curriculum used in state schools and the in-class instruction offered by state employees and the First Amendment simply has no application in this context, the document said.

The states lawyers, who also separately filed a motion last week seeking to dismiss the case, argued in the preliminary-injunction document that the state restrictions are intended at stamping out discrimination.

The balance of the equities and the public interest weigh decisively against enjoining the act. (The) state has a compelling constitutionally imperative interest in ending discrimination based on race and other immutable characteristics, and enjoining the act will sanction conduct and curricular speech that Florida has determined, in the exercise of its sovereign judgment, is pernicious and contrary to the states most cherished ideals, wrote the states lawyers, including attorneys from the Washington. D.C. firm of Cooper & Kirk, PLLC.

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State fires back in race-related instruction fight - Palm Coast Observer

After Johnny Depps successful defamation claim against Amber Heard, many observers are wondering if a recalibration of First Amendment law is occurring in the United States.

By all indications, it was a close case. The jury spent dozens of hours deliberating, evaluating six weeks worth of testimony and evidence. It ultimately decided that the preponderance of evidence favored Depp. Thats a purely probabilistic judgment, reflecting a conclusion that Johnny Depp was at least 1 percent more likely to be telling the truth than Amber Heard. Clearly the jury did not find Depp wholly credible, either: It also (somewhat paradoxically) held Depp liable to the tune of $2 million for statements his attorney made calling Heards claims a hoax.

In other words, it was a toss-up, and it would be a mistake to draw any sweeping conclusions from it, even though thats exactly whats happening right now on social media.

I cant help but think of similar alarm bells rung by many in the media back in 2016. That was when the former professional wrestler Hulk Hogan obtained a judgment against the website Gawker for publishing snippets of a video depicting him having sex. It was a shocking verdictnot because Gawker was found liable (there is absolutely no reasonable argument for publishing a surreptitiously recorded private sexual encounter between consenting adults)but because the jury saw fit to award Hogan $140 million in damages, sending Gawker into bankruptcy.

How could journalists critically report about public figures without facing the same fate as Gawker? As it turned out, just fine. Shortly after Gawkers demise, The New Yorker and The New York Times catalyzed the #MeToo movement by exposing Harvey Weinsteins behavior. In the years that followed, hundreds more powerful men have been exposed as abusers. Hardly any of them have challenged the allegations in court. Indeed, the majority of defamation lawsuits arising out of #MeToo have been filed by victims suing abusers for calling them liars, not vice versa.

If you ask practicing First Amendment lawyers how the Gawker verdict changed the way they do their job, most will tell you it had little effect. More than anything, it was a wake-up call that juries value privacy differently than they do reputation. When the dust settles in the Depp-Heard case, the same is likely to be true. The First Amendment is enormously protective of media reporting on credible accusations of sexual abuse. It is telling that Depp did not name the ACLU, which helped draft the op-ed at the center of the case, or The Washington Post (which published it).

Lara Bazelon: The ACLU has lost its way

Though the robust protection enjoyed by news media may be cold comfort to Amber Heard, the reality is that cases like this defy easy categorization because they are so dependent on the specific facts at issue. Unlike other First Amendment protections (for example, an article that accurately describes a judicial proceeding is absolutely protected under the fair-report doctrine), a truth defense usually requires a credibility assessment by a jury. That can come only at the end of an expensive, time-consuming, and highly invasive public trial. There was never any reasonable possibility of a judge throwing the case out on Heards behalf, and those expressing shock that Depp went the distance were engaging in wishful thinking.

Depp has more wealth and fame than Heard, but both parties had the benefit of experienced, well-resourced attorneys who presented comprehensive narratives to the public. Dozens of witnesses were called, expensive expert witnesses were retained, and videos and text messages were presented as evidence. No stone was left unturned by either side. The jury got to hear from both parties directly. It was a fair trial.

Despite the verdict, to call this a clean sweep for Depp is misguided. He won his case on a narrow question of whether he physically assaulted his wife. To do so, he had to admit to shocking behavior that anyone could call abuse. That is hardly an exoneration. There are no real winners here, and the simultaneous celebration of #JusticeForJohnny and piling on against Heard online is disturbing, particularly because it began well before any of the evidence was even presented.

Every case is different, and every jury is unique. If Depp and Heard re-ran this trial (yet) again, it may well have gone the other way. The bottom line is that seven Fairfax County, Virginia, residents found in favor of Depp. They have no more say about the future of the First Amendment than the six Pinellas County, Florida, jurors in the Gawker case. First Amendment advocates need not view this as an insurmountable blow to free speech.

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The First Amendment Will Survive Depp v. Heard - The Atlantic

One of the first things we do when we sign up for a new website or platform online is to pick a name a username, screen name or handle sometimes unrelated to the name on our government ID. Part of the fun of creating an online persona can be picking a creative or funny pseudonym. Its not all puns and games though. Anonymity can protect privacy and keep people like whistleblowers and activists safe; it can also shield bad behavior.

How can we balance the right to hide our identity with the potential harms of anonymity?

According to Jeff Kosseff, associate professor in the United States Naval Academy Cyber Science Department and author of The United States of Anonymous: How the First Amendment Protects Online Speech, this question is not new. Anonymous speech really is fundamental to the history of the United States.

In fact, many arguments for independence during the colonial era were made anonymously or pseudonymously with a pen name. So were arguments in support of the Constitution while it was being drafted.

In 1958, the Supreme Court protected the right to associate anonymously, saying the NAACP in Alabama could not be forced to reveal its membership lists. NAACP leaders at the time were regularly targeted with violence. Florida organizer Harry T. Moore and his wife Harriette were murdered in a bombing of their home on Christmas 1951 thought to be motivated by their anti-racist activism. Revealing the names of NAACP members would likely have endangered those members too.

Why do we need anonymity?

According to Kosseff, there are good reasons to protect anonymity. The ability to speak freely can help separate the content of the speech from the identity of the speaker. Sometimes, if people know who the speaker is, they might think differently about the message. Anonymity can lessen this bias.

More importantly, being anonymous can protect vulnerable people. People who need to have a voice but dont have the ability to associate their real name with that speech have a very good reason to want to speak anonymously, says Kosseff.

The civil rights movement provides several examples of how anonymity can help keep people safe, like the NAACP v. Alabama case. In a 1960 case, the Supreme Court protected the right of civil rights activists to call out via an anonymous pamphlet a supermarket that was discriminating against Black customers. Because of resistance to new civil rights laws, activists could have been in danger if they had been forced to reveal their identities.

This right, says Kosseff, has been reaffirmed by liberal and conservative justices. One example is a 1995 case overturning an Ohio law that required election publications to include authors names.

What about anonymity protecting bad actors?

The First Amendment protects anonymity (in most cases). It also protects the right to say unpopular or even abhorrent things (with some exceptions), anonymously or otherwise. You cant just use a subpoena to unmask someone whos been mean to you, says Kosseff. The courts have set a fairly high First Amendment standard for being able to subpoena identifying information of online posters.

Getting rid of anonymous speech online wouldnt prevent disagreeable speech, says Kosseff, because people say bad things using their real names, too. Some research shows that being able to use pseudonyms could have mixed or even positive impacts on online civility.

That said, different platforms have different policies. Some, like Facebook, technically require user profiles to use real names.

Online pseudonyms arent absolute or perfect, either. Criminals can and do get unmasked for speech that is truly beyond the protections of the First Amendment. In criminal cases or instances of speech that isnt protected, like true threats, it can be possible to pursue whos behind the screenname.

What does online anonymity look like around the world?

Kosseff says anonymity online is a spectrum. People can control what level of identifying information that they post online. So, to some extent, its up to everyone to decide if theyll provide no clues as to their identity at all or be fully transparent about who they are. Kosseff notes that its often possible for other users online to compile various facts youve shared about yourself to learn a lot about you even potentially your identity.

Theres also spectrum to how anonymity online is treated legally around the world. In Europe, privacy is a fundamental human right. Legal protections for anonymity there are more grounded in privacy than in free expression arguments. In authoritarian places, anonymity is difficult or prohibited.

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FIRST FIVE: How the First Amendment protects anonymous speech online - The Decatur Daily

Diversity trainings have become commonplace across all sectors. While many of these trainings are well-intentioned and justified by the commendable goal of workplace harmony, some may run afoul of the constitutional guarantees of speech and equality, or legal protections found in Title VI of the Civil Rights Act. In particular, the legal pitfalls of recent diversity trainings at public schools contain lessons for nonprofits and philanthropists seeking to implement diversity programming at organizations.

Many diversity trainings sort participants into oppressed and oppressor classes based largely on what amounts to crude racial stereotypes, with practical exercises reinforcing this message. The exercises are designed to highlight the privileges the oppressor class supposedly enjoys based on historical injustices that, as individuals, none of us was alive to witness.

While similar instruction exists across industries, school districts frequently require educators to attend trainings that impose these types of controversial views on staff members, forcing them to disclose personal details they may wish to keep private and to self-censor their views on hotly debated public topics. They are then expected to teach these contentious lessons to students.

Take, for example, a recent case in Springfield, Missouri. In August 2021, the Southeastern Legal Foundation filed a lawsuit on behalf of two educators against Springfield Public Schools, challenging the districts discriminatory programming that required participants to rank themselves as oppressors based on their race, religion and sex. The educators asserted these trainings violated their First Amendment rights.

To be clear, the stated purpose of this mandatory training on racial equity was to force everyone involved from the bus driver to the cafeteria worker to subscribe to the ideology of anti-racism, or the notion white people are born privileged while all people of color are born oppressed. Participants were taught that the concept of a colorblind society is a myth told to uphold white supremacy. Staff also were forced to assess their own vulnerabilities and strengths as anti-racist educators and assigned to write about being anti-racist, thereby committing themselves to this divisive ideology.

The government cannot force anyone, not even federal employees, to affirm allegiance to a political ideology without violating the First Amendment. Weve long known that schools cant require children to pledge allegiance to the American flag. Those same schools certainly cant require teachers to subscribe to an anti-racist agenda.

Another example from a school district in Evanston, Illinois, illustrates how diversity training collides with federal civil rights law. This Chicago-area suburb went far beyond merely directing their teachers to affirm a destructive message. The district actively discriminated against teachers and students by separating them into different groups based on their skin color. In another age, this would have been called segregation. Now it is called an affinity group. In training sessions, white people were depicted as inherently racial oppressors. Children as young as 5 years old received lessons with depictions of a white devil offering up money in exchange for the souls of people of color.

The Office of Civil Rights Enforcement for the U.S. Department of Education actually found these practices violated federal law. Title VI of the Civil Rights Act prohibits discrimination based on race, color, religion or national origin. Any training that calls out participants based on any of these characteristics is prone to the highest forms of legal scrutiny. When the Biden administration declined to litigate despite these confirmed violations of civil rights, the Southeastern Legal Foundation filed a lawsuit on behalf of a teacher. The suit asserted that civil rights law cannot be ignored, even by the federal department charged with enforcing it.

Trainings like those in Springfield and Evanston risk legal liability and fail to achieve their asserted goal of workplace harmony. As grantmakers and nonprofits seek to educate foundation staff about diversity, they ought to prioritize programming that focuses on equality and embraces Americas founding ideals. The self-evident truth that all of us are created equal was a resounding rejection of the notion of an aristocratic class born with exclusive privileges. This ideal is unifying and inclusive because it offers the possibility for all people to fulfill their true potential. It is an ideal codified in our founding documents that makes America unique among the nations and truly unites rather than divides us.

Braden Boucek is the director of litigation for the Southeastern Legal Foundation. Kimberly Hermann is the general counsel.

See original here:
Legal Pitfalls of Diversity Training at Schools Serve as Warning to Nonprofits - Philanthropy Roundtable

Lawyers for Gov. Ron DeSantis and Attorney General Ashley Moody are fighting an attempt to block a state law and regulations that limit the way race-related issues can be taught in public schools and in workplace training.

In a court document filed last week, the lawyers argued Chief U.S. District Judge Mark Walker should reject a request for a preliminary injunction in a lawsuit filed in April after DeSantis signed the controversial law (HB 7). Walker is scheduled to hold a hearing June 21 on the preliminary-injunction issue, according to a court docket.

Plaintiffs in the case allege that the law and regulations violate First Amendment rights and are unconstitutionally vague. But in the 60-page document filed last week, lawyers for DeSantis and Moody disputed that the restrictions violate speech rights in schools and workplaces.

Here, the act does not prevent the states educators from espousing whatever views they may hold, on race or anything else, on their own time, and it does not prevent students from seeking them out and listening to them, the document said. All it says is that state-employed teachers may not espouse or advocate in the classroom views contrary to the principles enshrined in the act, while they are on the state clock, in exchange for a state paycheck. The First Amendment does not compel Florida to pay educators to advocate ideas, in its name, that it finds repugnant.

But in an April motion for a preliminary injunction, lawyers for the plaintiffs argued that DeSantis and other Republican leaders banned teachers and employers from endorsing a litany of opinions about race that had been stuck in their craw, such as institutional racism, white privilege and critical race theory.

This constitutional challenge is not about whether these ideas are right or whether they should be taught throughout Floridas schools and workplaces, the 53-page motion said. Rather, it is about an attempt by Floridas conservative politicians to silence exchange of these ideas and win a so-called culture war through legislative and executive fiat.

DeSantis this year made a priority of passing the law which he dubbed the Stop Wrongs Against our Kids and Employees Act, or Stop WOKE Act. It came after the State Board of Education last year passed regulations that included banning the use of critical race theory, which is based on the premise that racism is embedded in American society and institutions.

The law, which is scheduled to take effect July 1, lists a series of race-related concepts that would constitute discrimination if taught in classrooms or in required workplace-training programs.

As an example, part of the law labels instruction discriminatory if it leads people to believe that they bear responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, national origin or sex.

As another example, the law seeks to prohibit instruction that would cause students to feel guilt, anguish or other forms of psychological distress because of actions, in which the person played no part, committed in the past by other members of the same race, color, national origin or sex.

The plaintiffs in the lawsuit are two public-school teachers, a University of Central Florida associate professor, a child who will be a public-school student in the coming year and the president of a firm that provides workplace training.

In the motion for a preliminary injunction, the plaintiffs attorneys from the Jacksonville firm of Sheppard, White, Kachergus, DeMaggio & Wilkison, P.A. wrote that the law and regulations intrude on the free expression and academic freedom of Floridas teachers by imposing a pall of orthodoxy over the classrooms.

These provisions suppress a wide range of viewpoints accepted by academics for the sole reason that Floridas conservative lawmakers disagree with them, the motion said. Even if such disagreement could form a legitimate government interest, Governor DeSantis failed to identify any actual examples of what he calls critical race theory being taught in Florida public school classrooms.

The plaintiffs attorneys also alleged that the restrictions ensure students learn only a white-washed version of history and sociological theories that ignore systemic problems in our society that create racial injustices.

But in the document filed last week, the lawyers for DeSantis and Moody wrote that the plaintiffs who are educators have no constitutional right of academic freedom to override curriculum policies adopted by democratically elected lawmakers.

Plaintiffs First Amendment challenge to the educational provisions fails because the act regulates pure government speech the curriculum used in state schools and the in-class instruction offered by state employees and the First Amendment simply has no application in this context, the document said.

The states lawyers, who also separately filed a motion last week seeking to dismiss the case, argued in the preliminary-injunction document that the state restrictions are intended at stamping out discrimination.

The balance of the equities and the public interest weigh decisively against enjoining the act. (The) state has a compelling constitutionally imperative interest in ending discrimination based on race and other immutable characteristics, and enjoining the act will sanction conduct and curricular speech that Florida has determined, in the exercise of its sovereign judgment, is pernicious and contrary to the states most cherished ideals, wrote the states lawyers, including attorneys from the Washington. D.C. firm of Cooper & Kirk, PLLC.

Read more:
Florida is firing back in a fight over how race can be taught in public schools and in the workplace - WFSU