The Rapid Erosion of Free Speech in Florida

The Florida legislature, led by Gov. DeSantis, seems intent on chilling freedom of expression in the Sunshine state. This rapid erosion of free speech in Florida has dark portents for the rest of the United States.

The First Amendment of the U.S. Constitution states that it protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances. Well, in our increasingly unfree Florida, we have a few grievances.

Let’s look at the evidence.

Exhibit Number One: Punishing a Business for Voicing an Opinion

Whatever you think about Disney, it has a right to free speech, as was famously reinforced in the U.S. Supreme Court case Citizens United v. Federal Election Commission. So when Florida dissolved the company’s debt-issuing district in retaliation for speaking up against the popularly termed “Don’t Say Gay” bill, it was clearly, even blatantly, infringing on the company’s right to free speech.

Here’s what happened

When Gov. DeSantis signed the controversial “Don’t Say Gay” bill, which prohibits teachers from discussing gender identity and sexual orientation in kindergarten through third grade, employees at the the Walt Disney corporation urged their employer to speak up against the new law.

The company put out this statement on March 28:

“Florida’s HB 1557, also known as the ‘Don’t Say Gay’ bill, should never have passed and should never have been signed into law. Our goal as a company is for this law to be repealed by the legislature or struck down in the courts, and we remain committed to supporting the national and state organizations working to achieve that. We are dedicated to standing up for the rights and safety of LGBTQ+ members of the Disney family, as well as the LBGTQ+ community in Florida and across the country.”

Less than a month later, on April 22, 2022,  DeSantis signed a law passed by the Florida legislature that revokes the self-governing status that Disney has held in Florida for over half a century. Many people saw it as a direct violation of the corporation’s First Amendment right.

The Free Speech Center Weighs In

The Free Speech Center, a nonpartisan public policy center at Middle Tennessee State University, notes that this all originated with politics, not with schools. There was no massive effort to teach matters related to sexual orientation to young grade schoolers. What’s more, local school boards have control over what’s taught in their districts, so the state has no business interfering with these boards. This was big government encroaching on local control.

The Free Speech Center notes:

The cause and effect was clear. Disney expressed its opinion and the state used its power to punish Disney and discourage other corporations from taking a stand – about anything…This is a full-blown assault on the First Amendment rights of business leaders – and by extension their employees. Its clear intent is to chill free speech in the Sunshine State.

For other points of view on this, see “Ron DeSantis and the Charade of Free Speech in America” and “Ron DeSantis’s attack on Disney obviously violates the First Amendment.”

Exhibit Two: Book Bannings in Florida

In July 2022, the Florida legislature enacted a law, House Bill 1467, that says “each district school board must adopt a policy regarding an objection by a parent or a resident of the county to the use of a specific instructional material…” The idea, as I understand it, it to ensure that materials are removed if they are “not suited to student needs and their ability to comprehend the material presented, or is inappropriate for the grade level and age group for which the material is used.”

The problem, of course, is that there’s so much subjectivity built into the law that almost any book could be objected to and then, temporarily or permanently, removed from book shelves.

Even ChatGPT Gets It

Just for fun, I put the first hundred lines of the law into ChatGPT and asked it questions pertaining to the law. One of my questions was, “What might be an unintended negative impact from this law?”

It responded as follows: One unintended negative impact of this law could be censorship of important and relevant information from students. Books and other materials that may provide valuable knowledge and promote critical thinking could potentially be removed from school libraries, limiting students’ access to diverse perspectives and ideas. Additionally, this law could create an environment where authors and publishers may self-censor their work to avoid potential objections, limiting the scope of literature available to students. This could also have a chilling effect on academic freedom and intellectual inquiry.


Take Them All Down!

In Duval County, Florida, one parent who was interviewed by The New Yorker discovered that a school had papered over bookshelves to hide school books and another school had removed books so that bookshelves were bare. Why? An abundance of caution, apparently.

Communications officials in Duval County stated that the Florida Department of Education “has trained all Florida schools districts to ‘err on the side of caution’ in determining if a book is developmentally appropriate for student use” and that Duval schools are working “to ensure compliance with all recent legislation regarding books and materials available to children through school media centers and classroom libraries.”

In other words, they made books inaccessible because they were afraid someone would take offense at something. Books were essentially banned, or at least removed, due to fear of the state.

So, Which Books Have Been Taken Away?

PEN America, an organization with the mission of defending the liberties of free expression, has put together a list of book ban instances occurring from July 1, 2021 through June 30, 2022, “where students’ access to books in school libraries and classrooms in the United States was restricted or diminished, for either limited or indefinite periods of time.” Many of these bans have occurred in Florida, of course. Pen America has also put together a fact sheet to challenge the claims made by Gov. DeSantis.

This has turned out to be a very creepy way of getting books pulled off school library shelves, not relying on the state itself to ban books but on whatever “parent or resident” (as the law says) takes a dislike to some book, however much of a classic it is. Vonnegut’s great novel Slaughterhouse-Five, for example, makes Florida’s Brevard County schools banned list.

But, really, the system ultimately hinges on self-censorship by schools “erring on the side of caution.”

In every society where censorship thrives, it thrives because people are so frightened (I’m not saying without reason, by the way) that they self-censor for fear of the state.

Exhibit Three: Attacks on Academic Freedoms

Florida’s government has already tightened its already white-knuckled grip on the state university system. This is not illegal. Our duly elected legislators have the right to weaken or even destroy that system

But can the politicans completely muzzle university as well as K-12 teachers? The Washington Post describes it like this:

[T]he gravest threat to academic freedom comes from a legal argument Florida has advanced in defense of the Stop WOKE Act. The legislation is part of a wave of “educational gag orders” banning the teaching of “divisive concepts.” Violations can trigger disciplinary action against faculty and enormous fines for their universities. In a brief filed in federal court, Florida’s lawyers contend that faculty at public universities are government employees, in-classroom speech is “government speech” and the state “has simply chosen to regulate its own speech with the Stop WOKE Act.

So far, the courts aren’t buying the Florida argument. Last November, a federal district judge issued an injunction blocking enforcement of the law, and this month three judges on the 11th U.S. Circuit Court of Appeals upheld that ruling.

“Professors must be able to discuss subjects like race and gender without hesitation or fear of state reprisal,” a spokesperson for the  the advocacy organization Foundation for Individual Expression told Law&Crime in an email. “Any law that limits the free exchange of ideas in university classrooms should lose in both the court of law and the court of public opinion.”

Despite Growing Teacher Shortages, Florida Keeps Scaring Its Teachers

Florida laws on teacher speech are so vaguely worded, many teachers are simply afraid to teach. Indeed, a poll by the nonprofit Stand for Children “found that a third of the 2,000 K-12 educators surveyed cited new state laws restricting classroom discussions on race, gender and sexuality as a reason for leaving the profession.”

Market Realist reports, “The FEA estimated in May that the state would have a shortage of 9,000 educators going into the 2022–2023 school year. The organization stated, ‘For far too long, certain politicians have underfunded students while restricting educators’ freedom to teach.'”

And the Hits Just Keep Coming

An opinion piece in The Palm Beach Post helps sum up the problems faced by Florida teachers:

[In addition to laws pushed by DeSantis], there are other bills that may not have the priority of the governor’s initiatives, but nevertheless send a troubling signal to Florida educators. HB 1055, for example, would have school districts place video cameras in classrooms and require certain teachers to wear microphones. While the bill might have good intentions of curbing abuse and crime in the classroom, it would only add hardship to an already difficult job.   

The Republican push to gain greater influence on local school boards includes HJR 35 and SJR 244, which would change the Florida Constitution to make nonpartisan school board races partisan. HB 1467 would make school board membership an unpaid position. Both bills would weaken the one part of school district operations that is directly accountable to the public, by either tethering local school boards to hardline partisan political agendas or by turning over the oversight of a complex, multi-faceted government operations like school districts to unpaid volunteers.

Exhibit Four: Trying to Silence the Press, Including Bloggers

Another opinion piece, this time in The Guardian, notes that attempts to prohibit free speech are not solely directed at teachers and businesses:

Ron DeSantis, the Florida governor, and his cronies, not content with destroying free speech in public schools, have set for themselves a new target: destroying press freedom and every Floridian’s right to criticize public officials. Along the way, they aim to overturn the most important first amendment US supreme court decision of the 20th century.

The latest bill to raise eyebrows sounds like it’s made up by the opponents of Florida Republicans to make them sound ridiculous. Unfortunately, it’s real. The proposed law, authored by state legislator Jason Brodeur, would – I kid you not – compel “bloggers” who criticize the governor, other officers of the executive branch, or members of the legislature to register with the state of Florida. Under the bill, anyone paid to write on the internet would have to file monthly reports every time they utter a government official’s name in a critical manner. If not, they’d face potentially thousands of dollars in fines.

This law would, of course, apply to conservative, moderate and liberal bloggers alike. Senate Bill 1316: Information Dissemination would mandate that any blogger writing about government officials to register with the Florida Office of Legislative Services or the Commission on Ethics.

Given our First Amendment rights, this kind of thing would be laughable if it weren’t, given Florida’s current status, so weirdly plausible.

The Real-Deal Threat to Free Speech

But even if that blogger bill never becomes law, there are other ways to attack the free press. More plausible ones. One of the most important stems from a DeSantis verbal attack on New York Times v Sullivan, the crucial Supreme Court decision that gave journalists as well as citizens wide latitude to investigate and criticize politicians.

As often seems to happen these days, the governor’s many allies in the Florida legislature went to work on the issue not long afterward. A bill was introduced in February 2023 by Florida state legislator Alex Andrade.

The Tampa Bay Times reports:

Now, Florida lawmakers — with the support of the governor — are taking aim at the media, pushing legislation that would dramatically weaken legal standards in place for more than a half-century that protect the freedom of the press to report on politicians and other powerful public figures.

The bill would make it easier to sue media outlets for allegations of defamation and make it harder for journalists to do their jobs by undermining the use of unnamed sources, an important reporting tool — particularly for media trying to pull back the curtain on the dealings of elected officials. Many First Amendment advocates and legal experts say it is clearly intended to muzzle reporters who serve as watchdogs for the public.

The objective of the Florida legislation (HB 991) is to challenge New York Times v. Sullivan, which requires that a plaintiff prove “actual malice” in defamation disputes, a high bar to clear.

Closing Statement

This post is already long, even though it only covers the proverbial tip of the iceberg in regard to Florida’s attempts to erode and, arguably, end free speech. I’ve spent a lot of time citing sources and instances because it’d be easy to blow off these claims as hyperbole.

But they’re not. Gov. DeSantis learned from Mr. Trump that if what you try to do is outrageous enough, many people won’t take your actions seriously. But we’ve discovered the hard way that just because something sounds crazy doesn’t mean it can’t happen. Not anymore. This the U.S. circa 2023. Anything seems possible.

Featured image: Eleanor Roosevelt reads the Universal Declaration of Human Rights in 1949; FDR Presidential Library & Museum 64-165; 20 December 2016; Source 64-165; Author FDR Presidential Library & Museum