Ropes & Gray and Protect Democracy Represent Private Companies in Lawsuit over Censorship of their Speech on Race and Gender
Ropes & Gray, in partnership with Protect Democracy, filed a federal lawsuit representing Florida honeymoon registry company Honeyfund.com, along with workplace diversity consultancy Collective Concepts and its co-founder Chevara Orrin, to block enforcement of Florida’s HB 7, the Stop WOKE Act.
The law purports to “fight back against woke indoctrination” by, among other things, barring employers from engaging in speech that “advances” certain “concepts” regarding race, sex, religion or national origin. The suit names Gov. Ron DeSantis and other Florida officials as defendants and challenges the statute as unconstitutional under the First and Fourteenth Amendments for barring the expression of viewpoints disfavored by government officials and chilling a wide range of speech in workplaces. The complaint is available here.
Speech codes like this one, which seek to censor ideas that challenge government officials’ preferred narrative, muzzle independent institutions, and direct outrage toward disfavored groups, take a page from the authoritarian playbook. To combat what Gov. DeSantis has termed “corporate wokeness,” the law bars employers from requiring their employees to hear speech that promotes any of eight inchoate concepts related to race, sex or national origin. These vaguely-worded prohibitions sweep in concepts that are central to current, mainstream diversity, equity and inclusion (DEI) trainings, such as cultural competency, privilege, implicit bias, and systemic or institutionalized racism and sexism.
“Diversity in the workplace is demonstrably good for business, but we all have a lot to learn about how we can become more inclusive of diverse viewpoints. Educating employees about systemic racism, unconscious bias, and privilege are some of the ways we can accomplish that,” Honeyfund.com, Inc. CEO Sara Margulis said. “This law will make it more costly for Honeyfund to administer diversity training and will impose unnecessary legal risk on the business. I’m astonished that Florida is introducing these challenges to private business owners when the state has invested so much in attracting businesses.”
Plaintiffs are already experiencing harms as result of the new law, which goes into effect on July 1, 2022. Honeyfund is expending resources to ensure that an upcoming DEI training complies with the law, while Collective Concepts and Ms. Orrin have already been asked to change the language of their presentations and had clients reduce the scope of their DEI contracts because of fear of coming too close to “concepts” prohibited by the bill. Plaintiffs seek a declaration that the law violates the Constitution and an injunction barring its enforcement.
“Since the murder of George Floyd in 2020, all types of institutions have been grappling with how to address historical and structural racism in our society,” said Plaintiff Chevara Orrin, an award-winning DEI consultant. “Unfortunately, just as employers have begun to engage more deeply with the effects of entrenched systemic racism, this law is intimidating them and blocking them from having serious conversations and acting intentionally to create more equitable workplaces.”
“Our First Amendment right to speak and receive facts is what makes our system of self-government work.” said Shalini Agarwal, counsel at Protect Democracy. “In a diverse democracy like ours, it’s particularly damaging for the government to chill conversations about how to create workplaces and businesses that are welcoming to all.”
“When President Trump issued a similar Executive Order attempting to label certain diversity training concepts anti-American, a court had no trouble finding that it violated fundamental First Amendment rights, and we expect that same here,” said partner and chair of Ropes & Gray’s Appellate and Supreme Court practice Doug Hallward-Driemeier.
The Stop WOKE Act has been criticized by legal experts across the political spectrum, who have said the law flouts well-established Supreme Court precedent and, if upheld by the courts, sets a dangerous precedent for further erosion of freedom of speech.
“Targeting the speech of private employers based on the beliefs and preferences of current lawmakers is not something I'd expect to see here in the United States,” said Marcos Daniel Jiménez, who served as United States Attorney for the Southern District of Florida during the George W. Bush administration. “As a Cuban refugee whose family fled a repressive regime, I can tell you that this law erodes fundamental American liberty and our system of free enterprise. Sadly, it moves us one step closer to authoritarian government."