Florida government could censor university professors in classrooms, lawyer for state says

An attorney representing education officials appointed by Gov. Ron DeSantis Friday told a federal appeals court that Florida lawmakers, if they so choose, can prohibit professors from criticizing the governor in the classroom.

“In the classroom, the professor’s speech is the government’s speech, and the government can restrict professors on a content-wide basis and restrict them from offering viewpoints that are contrary,” said Charles Cooper of the Cooper & Kirk law firm, responding to a judge posing that scenario.

The remarks came during oral arguments before a three-judge panel of the 11th U.S. Circuit Court of Appeals over a key provision of DeSantis' much-touted "Stop WOKE Act," which limits discussion of race, gender and other topics in state university classrooms. 

That provision was blocked by Chief U.S. District Judge Mark Walker of Tallahassee, who called it "positively dystopian." The circuit court last year denied the state's request to undo the block before it reached a final decision on the case.

Friday's argument, held in Miami, focused on the line between academic freedom and the state government's ability to control institutions it funds and oversees.

"Let's say that conspiracy theories were taking hold, and there were a group of professors who were teaching that the moon landing never happened or that 9/11 was an inside job," said Judge Britt Grant, appointed by former President Donald Trump. "Is there nothing, in your view, that the Florida Legislature could do about that?"

"That would be within the province of the university, first and foremost," responded attorney Leah Watson of the American Civil Liberties Union, representing Florida professors challenging the law. She's part of a legal team with the ACLU of Florida, NAACP Legal Defense Fund and the Ballard Spahr law firm.

'You can't censor your way to freedom'

Attorney Greg Greubel of the Foundation for Individual Rights and Expression (FIRE), in response to the same question, said, "You can't censor your way to freedom, and there are a lot of classes in public universities that teach conspiracy theories so that students can understand the theories behind them and argue against them."

The debated law, which was signed by DeSantis, says it's discrimination to "subject any student or employee to training or instruction that espouses, promotes, advances, inculcates or compels" them to believe a list of eight things, including that they should bear personal responsibility for historic wrongs or feel guilt because of their race, color, sex or national origin.

Grant pushed back on Gruebel's point by saying that such instruction on conspiracy theories was different than endorsing those theories, but he counted that the passive way the statute was written makes its applicability broader than that.

"It's important to note that this is not a case about what universities can do; this is a case about what the state cannot do," said Gruebel, who represents a University of South Florida professor and a First Amendment student group at the university, at another point in the hearing. "And the state cannot pick winners and losers in the marketplace of ideas. The college classroom is a marketplace of ideas."

Following up on the state's attorney's argument that what professors say is controllable government speech, Grant asked if that would mean red states and blue states would start seeing "entirely different sets of facts."

"I suspect that happens quite distinctly now in many respects," Cooper said. "But that's the genius of federalism ... These are state institutions, and the states themselves get to make decisions about the content of the courses taught in their schools, and that includes viewpoints.

'Government speech' doctrine keeps coming up

This is not the first legal fight over government speech Florida has seen this year.

The state has also argued in federal court that book removal decisions in schools, regardless of reason, are protected government speech. Judges have not yet weighed in on that.

And this is not the only provision of the "Stop WOKE Act" that's been challenged.

Several months ago, the 11th Circuit upheld the block of a different key provision of the law that restricted businesses' diversity practices and trainings.

But that hasn't stopped the state from still targeting such practices.

For example, Attorney General Ashley Moody announced last month that her office had filed a complaint with the Florida Commission on Human Relations over Starbucks' diversity, equity and inclusion practices.

This reporting content is supported by a partnership with Freedom Forum and Journalism Funding Partners. USA TODAY Network-Florida First Amendment reporter Douglas Soule can be reached at DSoule@gannett.com.