Wake up Florida – New State Laws Imperil Freedom and Privacy

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Wake up Florida – New State Laws Imperil Freedom and Privacy. This week, as privacy and politics continue to collide, let’s look at privacy concerns in the university setting – specifically, in Florida, a state whose constitution expressly recognizes a right to privacy. 

Since the first days of America’s first college, colleges and universities have been infuriating the establishments of every age. Great universities nurture argument, not consensus, and especially not consensus for whatever is currently in power or fashion. At the great centers of scholarship, any idea can be challenged (the more provocatively, the better) and the status quo is always fair game. It’s similar to cross-examination in court – out of clash comes truth. That has long been a fact of our communal life. 

Lately, however, intellectual turmoil in university life – like so many other cultural norms and mores – has come under attack. Florida, particularly, is experimenting with ways to curb what its governing political party regards as excessive liberalism among Florida university faculty and students, the latter supposedly entrancing (“indoctrinating”) the former toward progressive viewpoints. 

Let’s look briefly at some of these developments in Florida.   

Registering students’ political affiliations? No, but… A year ago, Florida enacted a statute which (among many other things) requires state authorities to conduct annual surveys of “intellectual freedom and viewpoint diversity” on Florida’s university campuses, asking whether students feel free to express their opinions. At first, the statute was widely misconstrued as requiring students to express what their opinions are, even where they might prefer to keep them private.  

The statute doesn’t exactly require that, but it prohibits some kinds of speech (which Florida’s governing party dislikes?), prevents erecting “shields” against (i.e. encourages) some other kinds of expressive speech (which Florida’s governing party finds agreeable?), and empowers opponents with private rights of action. You can read the text here:  

https://www.flsenate.gov/Session/Bill/2021/233/BillText/er/PDF  

Restricting professors’ speech? In 2020, Florida enacted new conflict-of-interest rules to empower the State to prevent professors from moonlighting on jobs the State feels would be contrary to its interests. Earlier this year, fearful of angering state officials who might cut its funding, the University of Florida forbade several professors from serving as expert witnesses in a case challenging Florida’s then-new vote-by-mail practices and ballot-drop box rules. On First Amendment grounds, a federal district court enjoined the University and allowed the professors to testify. You can read more about the court’s decision by clicking on the following link:  

https://www.nytimes.com/2022/01/21/us/florida-professors-free-speech.html  

Stop WOKE Act: Recently, Florida’s new “Stop WOKE Act” took effect. (So did its new “Don’t Say ‘Gay’” bill – a separate act aimed at kindergarten and elementary school teachers – but that’s a separate story.)  

For a short summary of the so-called “Stop WOKE” Act’s purposes – prepared and published by the State of Florida – click the following:  

https://www.flgov.com/wp-content/uploads/2021/12/Stop-Woke-Handout.pdf  

For the complete text, see the following:  

https://www.flsenate.gov/Session/Bill/2022/7/BillText/er/PDF  

The Act’s avowed intent is to “protect” supposedly beleaguered, embattled conservatives in universities, businesses, and elsewhere, from progressive viewpoints. It attempts to do this, in part, by (1) requiring that advancing or promoting any belief that certain enumerated “concepts” constitute discrimination based on race, color, sex, or national origin, will constitute “unlawful employment practices;” (2) enshrining into law certain defined ideas, which the Act characterizes as “principles of individual freedom (e.g., “A person, by virtue of his or her race or sex, does not bear responsibility for actions committed in the past by other members of the same race or sex”); and (3) directing the State Board of Education to develop or adopt a “curriculum to inspire future generations through motivating stories of American history...” 

Our view: We oppose the new Florida acts for many reasons, but we will highlight a few.  

First, nobody's opinions, beliefs, “concepts,” “ideas,” or related speech should be legislated. Florida is trying to impose by force what the Act’s proponents fear losing to argument and persuasion. This is a First Amendment issue. For government to establish orthodoxy or heterodoxy of thought, intellectual exploration, religion, or beliefs is un-American. 

Second, Florida’s performative crackdown on speech against one kind of orthodoxy does nothing but establish an opposite (worse) orthodoxy, and threatens privacy under Florida’s own Constitution. The Constitution of the State of Florida recognizes a right to privacy under Article I, Section 12 – Florida’s Constitutional Right to Privacy, which states:  

“Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.”  

This constitutional right of privacy was affirmatively created by a vote of the people in 1980. And even the Florida Supreme Court has recognized that Floridians have "a strong right of privacy not found in the United States Constitution" and that this right is "much broader in scope than that of the Federal Constitution." See Winfield v. Div. of Pari-Mutuel Wagering, 477 So.2d 544, 548 (Fla. 1985) 

Third, especially in higher education, one’s beliefs, assumptions, and assertions ought to be challenged. “If education may be defined in a word,” wrote Don Moffatt in 1948, “that word is controversy. Where concord reigns, learning withers; where conflict rules, it flourishes.”  

Why is that so? Because:  

• - Only with vivid, aggressive, dynamic, even infuriating argument – with what Gary Trudeau once called “free speech at its most bracing” – is there a chance to grow, improve, get better, and learn -- and at the least, the defender will come away with a better understanding of her own position, of why she actually thinks what she thinks;  

• - The Founders knew this, which is why vivid, aggressive, dynamic argument is precisely what they intended in the “crown jewel” of the Bill of Rights, the first amendment; and  

• - We don’t doubt that in a fair intellectual “fight” – by which we mean one free of knowing or reckless disinformation and sub-adult, ad hominem rudeness -- conservatives can handle themselves just fine (or at least as well as liberals), and don’t need State police to hold one side down while the other kicks it. Instead, we urge all Americans to remember what Judge Learned Hand said of the “Spirit of Liberty:”  

“…[T]he spirit of liberty lies in … never being too sure you’re right.” 

In our view, Florida is coming dangerously close to being “too sure it’s right.” 

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Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy and protection, cybersecurity, the Internet and technology. Open the Future℠.