Florida Gov. Ron DeSantis isn’t exactly hiding what he’s up to.
Earlier this month, the Republican appointed Chris Rufo, the architect of the 2021 moral panic over “critical race theory,” to the board of a public liberal arts school in Florida. As Rufo told New York Times columnist Michelle Goldberg, his goal — and the goal of several other DeSantis appointees to the New College of Florida’s board — is to transform New College, a liberal bastion in the South, into something more like Hillsdale College, a conservative school in Michigan with close ties to former President Donald Trump.
The one positive thing that can be said about this appointment is that it is, at least, legal — something that cannot be said about many of the governor’s attempts to sic the government on institutions he deems too liberal. DeSantis isn’t just determined to use his public office to suppress dissenting voices and promote his own reactionary views; he’s also quite willing to thumb his nose at the Constitution in order to do so.
Indeed, DeSantis often seems to revel in his contempt for the First Amendment, even fundraising off of it. Shortly before DeSantis signed unconstitutional legislation punishing the Walt Disney Company for criticizing one of his policies, the governor sent a fundraising email to supporters touting the fact that he was doing so. The company, DeSantis said, was being punished after it “tried to attack me to advance their woke agenda.”
DeSantis signed legislation imposing speech codes on university professors, as well as legislation attempting to seize control of content moderation at sites such as YouTube, Twitter, and Facebook. He attacks classroom teachers with vague, unconstitutional laws stigmatizing LGBTQ people. His administration threatens drag performers with criminal charges.
In his victory speech shortly after winning reelection in his increasingly conservative state, DeSantis pledged to “fight the woke in the legislature,” “fight the woke in the schools,” and to “fight the woke in the corporations.”
One of his lawyers later clarified that the word “woke” means “the belief there are systemic injustices in American society and the need to address them.”
As a constitutional matter, a governor is allowed to give speeches arguing that the United States is somehow miraculously immune from systemic injustice. He may sign legislation repealing programs intended to cure these injustices. He may appoint officials to public school boards that share his belief that the US is immune to these injustices. And he may even enact policies that help perpetuate these injustices, assuming that those policies violate neither the state nor federal constitution.
But DeSantis goes much further. He wields the government’s sovereign powers to sanction speech he does not like, and to punish institutions that criticize him. DeSantis, in other words, does not seem content to simply enact policies that hew to a right-wing economic or social vision. He wishes to use the sovereign powers of government to shape public discourse itself — punishing some ideas, rewarding others, and conscripting public schools and universities into his culture war.
To be fair, DeSantis is hardly unique among Republican state governors in this regard — Texas Gov. Greg Abbott (R), for example, signed legislation targeting social media companies that is even more aggressive than Florida’s. But DeSantis is also widely viewed as a leading contender for the GOP presidential nomination in 2024, so he is uniquely positioned to take his speech war national if elected president.
Much, though admittedly not all, of DeSantis’s agenda clearly violates the First Amendment. The government may not punish its critics for their speech. It may not, as a federal appeals court explained in a decision blocking a Florida social media law, seize control of content moderation at Twitter, Facebook, or YouTube. And, while Florida does have some control over what state-employed teachers and professors say in their classrooms, the government cannot terrorize those instructors with vague laws that do not communicate what sort of classroom instruction is permitted and what is forbidden.
But even if the courts enforce the First Amendment with vigor — a prospect that will grow increasingly uncertain if DeSantis starts appointing federal judges or justices — at least some of DeSantis’s action are lawful, even if they are ill-advised. Nothing in the Constitution, for example, prevents DeSantis from doling out government jobs to bad-faith actors like Rufo.
The Constitution, in other words, provides some safeguards against elected officials who wish to target dissent, but it is not a perfect shield. And it is a worthless shield if the judiciary is controlled by partisans and ideologues who will not enforce the First Amendment against men like DeSantis.
DeSantis v. the First Amendment
Broadly speaking, DeSantis’s efforts to limit free speech and shape public discourse fit into three boxes. The first, which includes things like Florida’s laws attacking Disney and attempting to gain control over social media sites, seek to control what major companies can say and what speech they must broadcast. These laws are clearly unconstitutional.
The second box includes laws, like Florida’s “Don’t Say Gay” law and the so-called Stop WOKE Act, which impose speech restrictions on public school teachers and professors. The constitutional status of these sorts of laws is more nuanced. While the Supreme Court has repeatedly said that the First Amendment provides some protections for academic freedom, it hasn’t fully fleshed out those statements. As a general rule, moreover, states do have the power to write their own school curriculums and to require instructors to follow those curriculums.
That said, the Supreme Court has said that laws governing classroom instruction may not be so vague that people “of common intelligence must necessarily guess at its meaning and differ as to its application.” Neither the Don’t Say Gay law nor the Stop WOKE Act complies with this rule.
Then there’s a third box, which consists of actions that use governmental institutions to promote a conservative viewpoint, but without suppressing speech. Florida acted within its lawful authority, for example, when it appointed former Sen. Ben Sasse, a conservative Republican, to lead the University of Florida. And Sasse will have broad authority to use his new office to promote Republican ideas on campus.
DeSantis cannot tell private companies what they are allowed to say and what they are allowed to publish
Let’s start with what should be the most basic point imaginable under the First Amendment: The government may not use its sovereign powers to punish people who criticize elected officials or their policies. As the Supreme Court said in Hartman v. Moore (2006), “official reprisal for protected speech ‘offends the Constitution [because] it threatens to inhibit exercise of the protected right.’”
To be sure, DeSantis’s most high-profile attempt to punish a perceived enemy involves a company that is quite powerful in its own right. It’s not like the Walt Disney Company lacks the resources to defend itself against unconstitutional legislation passed by a state government.
But the fact that DeSantis targeted one of the largest and most popular producers of First Amendment-protected art in the world is also a warning about how far his agenda could reach if it is successful. A single individual who is sanctioned by the government is likely to silence their own speech, but a major media company that is targeted for reprisals could change the message that it broadcasts to millions of voters.
And these sorts of reprisals are unlawful no matter what form they take. If the government, for example, offers a special tax break to a major employer, it cannot strip away that tax break to punish the employer for its First Amendment-protected speech — even though there is obviously no constitutional right to pay less taxes than other companies.
Which brings us to the specific circumstances of DeSantis’s attack on Disney. After Disney denounced the Don’t Say Gay law, which allows parents to sue their local school district if topics such as sexual orientation or gender identity are mentioned in the classroom, Florida retaliated by passing a law that will dissolve the “Reedy Creek Improvement District,” a 40-square-mile area that includes Walt Disney World, where Disney has an unusual amount of control over local land use and taxation. (The legislature is likely to modify this law before it takes effect in June.)
There’s compelling evidence that Florida did this to punish Disney for speaking out against DeSantis’s policies. Shortly before signing the law, DeSantis bragged that “Disney and other woke corporations won’t get away with peddling their unchecked pressure campaigns any longer,” and he suggested that Disney is a “corporate lapdog” for “the Democrat machine.” DeSantis’s lieutenant governor even said that the goal is to pressure Disney into changing the content of its First Amendment-protected speech.
Newsmax host Eric Bolling: “Is there an opportunity for Disney to change their mind and say we will disregard this whole ‘woke’ agenda…and would the governor then say, ‘fine, you can keep your status but we’re gonna keep an eye on you now’?”
Florida Lt. Gov: “Sure!” pic.twitter.com/5E8UKGDVjF
— Justin Baragona (@justinbaragona) April 21, 2022
Thus, this attack on Disney was unconstitutional. Florida isn’t required to maintain anything like the Reedy Creek Improvement District. But it cannot strip Disney of a legal benefit it already enjoys in order to punish Disney for expressing a political opinion.
Similarly, a Florida law targeting social media companies is also unconstitutional because it violates a rule prohibiting the government from forcing private companies to publish content they do not want to publish.
This law, enacted in 2021, seeks to micromanage which users social media sites must publish, and how their content must appear on the site. Among other things, it forbids the major social media sites from “deplatforming” candidates for public office, requires them to give certain special treatment to content about these candidates, and requires them to publish content by certain journalists.
None of this is allowed, and there is a long list of Supreme Court decisions establishing that the First Amendment protects the right of a publisher to decide what to publish. As the Court held most recently in Manhattan Community Access Corp. v. Halleck (2019), “when a private entity provides a forum for speech,” it may “exercise editorial discretion over the speech and speakers in the forum.”
The law governing the First Amendment rights of teachers and professors is a bit unclear, but DeSantis still managed to violate it
The normal rule governing most government employees is that their employer may tell them what they are allowed to say while they are on the job. As the Court said in Garcetti v. Ceballos (2006), “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
But Garcetti also suggested that “speech related to scholarship or teaching” may enjoy more First Amendment protection than other speech by government employees.
Florida’s lawyers, for their part, claim that the First Amendment offers no protection to professors at state universities, at least during classroom instruction time. As a federal judge summarized their argument, “they argue that because university professors are public employees, they are simply the State’s mouthpieces in university classrooms,” and thus the state has “unfettered authority to limit what professors may say in class, even at the university level.”
But this argument cannot be squared with precedent. There is a long line of cases warning that, as the Court said in Keyishian v. Board of Regents (1967), imposing “any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.” Keyishian recognized that society as a whole benefits from the “new discoveries” achieved by professional scholars, and that such scholarship “cannot flourish in an atmosphere of suspicion and distrust.”
Indeed, the Court spoke in nearly apocalyptic terms about the consequences of permitting government officials to suppress academic speech — “Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.”
Yet, while the Court has often spoken quite eloquently about the need for enhanced First Amendment protections for teachers and professors, the full scope of the academic freedom protected by the First Amendment is underdeveloped. The Court has never drawn a definitive line explaining just how much control state governments may exercise over classroom speech at public schools and universities.
It has, however, imposed one clear limit. Keyishian established that classroom speech regulations may not be so vague that someone “of common intelligence must necessarily guess at its meaning and differ as to its application.” Both the Don’t Say Gay law, which targets classroom instruction relating to sexual orientation or gender identity, and the so-called Stop WOKE Act, which imposes a wide-ranging speech code on professors governing instruction related to race, gender, and nationality, run afoul of this ban on vague classroom regulations.
The Don’t Say Gay law, for example, prohibits “classroom instruction . . . on sexual orientation or gender identity” prior to the fourth grade. It then requires all instruction on these topics to be “age appropriate or developmentally appropriate for students in accordance with state standards.”
But the law does not define many of these terms, including the term “classroom instruction.” If a female teacher who is married to a woman casually references their “wife” during a lesson to third graders, have they violated the law? What about telling sixth graders about Obergefell v. Hodges (2015), the Supreme Court case legalizing same-sex marriage? No one knows. And classroom teachers are likely to self-censor before they risk saying anything that could get them fired.
The Stop WOKE law is even worse. It contains a list of eight concepts that professors may only discuss “in an objective manner” and “without endorsement of the concepts.”
As a federal judge pointed out in a decision blocking this law, the word “objective” is itself notoriously slippery and does not adequately convey to professors what they are and are not allowed to say. Meanwhile, some provisions of the law are so poorly drafted that they seem to impose truly absurd restrictions on classroom instruction.
One provision, for example, prohibits professors from teaching that “members of one race, color, national origin, or sex are morally superior to members of another race, color, national origin, or sex.” It is likely that Florida lawmakers intended this provision to prohibit professors from saying that people of one race or gender as a class are morally superior to people of a different race or gender. But that’s not what the law actually says.
Rather, this language quite easily can be read to forbid professors from saying that any individual is morally superior to another individual of a different race or gender. A professor could not say, for example, that Black civil rights leader Martin Luther King Jr. was morally superior to white segregationist Bull Connor. Or that, say, white French President Emmanuel Macron is morally superior to Cambodian dictator Pol Pot. Or that Nobel Peace Prize winner Malala Yousafzai, a woman, is morally superior to serial killer Jeffrey Dahmer, a man.
Yet, while these incompetently drafted laws could very easily be struck down even by our current, very conservative Supreme Court, it is far from clear what will happen if DeSantis signs a new law with more precise language. Federal courts generally agree that a state may regulate the “general subject matter of curriculum” that is taught in public schools. A state may, for example, require an algebra teacher to actually teach algebra — and not art history or queer theory or 19th-century Russian literature — during classroom instruction time.
But current case law is less clear about whether a teacher’s speech is protected if, say, a male algebra teacher tells a humorous story about something that happened to their husband on vacation in order to illustrate an important mathematical concept that is part of the official curriculum.
That means that a more competently drafted law targeting academic speech may very well be upheld, as could speech restrictions imposed by conservative officials appointed to lead Florida universities.
DeSantis can appoint conservatives — and even reactionary cranks — to key roles
Finally, it should be acknowledged that much of DeSantis’s broader cultural agenda is likely to be implemented by lower-ranking government officials appointed by him or by other Republicans. And, as a general rule, DeSantis has broad leeway under the Constitution to appoint whoever he wants. The 14th Amendment forbids him from appointing anyone who “engaged in insurrection or rebellion” against the United States after previously serving in certain high offices, but it otherwise largely leaves appointments up to state governors.
Moreover, while the First Amendment and the state’s previous decisions to grant tenure to existing university faculty might limit the state’s ability to target some professors, there are few, if any, constitutional constraints on its ability to hire new professors who share DeSantis’s ideology. Over time, appointments like Sasse and Rufo could try to fill Florida’s economics departments with acolytes of Ayn Rand, or fill its law school faculties with GOP partisans who take inspiration from Justice Samuel Alito.
We cannot rely on the courts to enforce the First Amendment — especially if DeSantis gets to appoint federal judges
The greatest danger, if DeSantis continues to consolidate power, isn’t that he will sign more amateurish laws that are ultimately struck down. It’s that some of these laws may be upheld in precedent-setting decisions that could do considerable violence to the First Amendment.
The idea that the Constitution provides robust safeguards against government censorship was only embraced by the Supreme Court in recent decades. During World War I, Congress enacted a sweeping censorship law that even made it a crime to display the German flag. Eugene Debs, the great labor union leader and Socialist presidential candidate, was sentenced to 10 years in prison for giving an antiwar speech— and the Supreme Court unanimously upheld his conviction!
It really wasn’t until the 1960s, when the Supreme Court handed down landmark decisions protecting the freedom of the press and the right to engage in provocative speech, that modern-day free speech protections began to take hold. And these protections are increasingly insecure as the judiciary lurches to the right.
Last year, a total of three justices joined a dissenting opinion by Justice Samuel Alito that would have allowed the Republican-controlled government of Texas to seize control of social media moderation. Two current justices, Clarence Thomas and Neil Gorsuch, have denounced New York Times v. Sullivan (1964), the seminal press freedom case establishing that states cannot use bad-faith defamation suits to financially hamstring news outlets that criticize government officials.
The most troubling thing about DeSantis’s war on free expression, in other words, isn’t that he’s signed several unconstitutional laws that seek to suppress viewpoints he does not like — or even that he’s used his authority as governor to target institutions that dared to criticize him. It’s that, if DeSantis someday becomes president, he could fill the courts with more judges like Thomas, Alito, and Gorsuch.
As my colleague Zack Beauchamp has written, much of DeSantis’s agenda appears to track similar policies by Hungarian dictator Viktor Orbán. With the right judges in place, DeSantis could potentially transform American society and culture in ways that would be unrecognizable to everyone accustomed to how the First Amendment has been interpreted for the last 60 years.