Two years ago, Florida became the center of widespread media attention with its enactment of a new law, which set out to curb training and teaching relating to inclusion, equity, and diversity (“IE&D”). Since then, there has been a battle in the courts as to the validity of the legislation based on the argument that it constitutes impermissible state government restriction of free speech. That battle just ended: the Stop WOKE Act’s prohibition against certain workplace IE&D trainings and teachings has been permanently struck down as a violation against free speech.¹

In 2022, Florida enacted the Individual Freedom Act (“IFA”), labeled the “Stop the Wrongs to Our Kids and Employees Act” or “Stop WOKE.” Among other things, Stop WOKE sought to prohibit employers from requiring employees to attend a meeting or undergo a training or instruction “that espouses, promotes, advances, inculcates, or compels” employees to believe various concepts based on “race, color, sex, or national origin.”

This law was initially challenged in the U.S. District Court, Northern District of Florida. Chief Judge Mark Walker issued a preliminary injunction prohibiting the Act’s implementation of the workplace training portion, which was appealed to the Eleventh Circuit Court of Appeals and affirmed. With that backdrop, Judge Walker just issued a statewide permanent injunction on July 26, 2024.

Challenging Stop WOKE

Shortly after Stop WOKE’s passage, several employers challenged it, claiming it silenced their efforts to discuss critical issues necessary to improve their workplaces. They moved for a preliminary injunction on that basis. In August 2022, Judge Walker granted the motion, in part, enjoining the workplace-training portion of Stop WOKE. Judge Walker maintained that this portion of the law was a “naked viewpoint-based regulation on speech.” He also famously wrote that the “First Amendment does not give the state license to censor speech because it finds it ‘repugnant,’ no matter how captive the audience.”

Eighteen months later, a three-judge panel of the Eleventh Circuit unanimously agreed with Judge Walker’s decision. When affirming the preliminary injunction, the appellate court noted Florida’s censorship of certain viewpoints was “the greatest First Amendment sin.” The appellate court held the workplace-training portion of the IFA was unconstitutional under the First Amendment’s free speech protections. The court also noted that “[t]his is not the first era in which Americans have held widely divergent views on important areas of morality, ethics, law, and public policy. . . But now, as before, the First Amendment keeps the government from putting its thumb on the scale.” Attorneys for the State of Florida did not file a petition for rehearing and they did not otherwise attempt to appeal this decision.

In July 2024, Stop WOKE’s challengers moved to convert the preliminary injunction to a permanent injunction. Tellingly, attorneys for the State of Florida did not oppose the motion to convert the preliminary injunction into a permanent one. Given the State’s concession, Judge Walker has permanently enjoined the workplace-training portion of Stop WOKE.

Significance of the Permanent Injunction

When Judge Walker initially enjoined Stop WOKE, he compared Florida to a supernatural, science fiction universe: “[n]ow, like the heroine in Stranger Things, this Court is once again asked to pull Florida back from the upside down.” By converting the preliminary injunction to a permanent one, the Court has effectively accomplished that task. The permanent injunction gives private employers more discretion to create IE&D programming in the workplace. The injunction also prohibits the Florida Commission on Human Relations and the Florida Attorney General from enforcing the Stop WOKE’s prior workplace-training prohibitions.

While the workplace-training portion of Stop WOKE has been permanently enjoined, employers, including employers who may have already tailored their IE&D training and compliance programs or incorporated the use of an IFA-compliant “attendance waiver” for Florida-based employees, should consult with employment counsel on the best course of action going forward.