By Don Mayer
March 7, 2023
Call me biased, but I’m starting to get more than a little “steamed” over politicians who claim to be re-planting the flag of freedom in the State of Florida.
On National Public Radio this morning (March 7, 2023) we learned that the Florida legislature, with a “super majority” of GOP members, will be following Gov. Ron DeSantis in passing a number of laws that, in this writer’s view, are purely performative legislation that “throw red meat” to the party’s “base.”
Here are some of the proposed laws, which, of course, are “perfectly legal,” although the wise reader will recognize right away that many of them are a direct affront to the First Amendment. Among many other bills being considered, there are bills that:
- would further limit what teachers can say in schools
- would expand the state’s prohibition on discussing gender and teaching sexual identity from the third grade to the 8th grade
- would forbid schools from using names and pronouns other than the ones assigned to a child at birth
- would ban any major or minor in gender studies intersectionality and critical race theory at public colleges and universities
- would bans diversity, equity, inclusion (DEI) programs except those that may be required by the federal government
- would lower the threshold for who is considered a “public figure” to make it easier for public figures like politicians to sue journalists for defamation
- would require anyone who blogs about a state official and gets paid to do so to have to register with the Florida government
I’m a big believer in federalism –– the notion at the heart of the U.S. Constitutional order that sees our fifty states as “laboratories of democracy,” and gives them “police powers” to secure the health, education, safety, and welfare of the state and its citizens. But, let’s also be clear that the Constitution, including amendments like the First Amendment requiring states and the federal government to guarantee “free speech” by citizens, is the “Supreme Law of the Land” under the Supremacy Clause.
This means that Florida cannot limit free speech without very, very strong reasons, and that the Supreme Court will require Florida to show a vital public interest that supports new state legislation that in any way infringes on free speech rights. Further, Florida would have to show that its laws are “narrowly tailored” to achieve those vital ends.
Looking at the Florida legislature’s DeSantis inspired “to do list,” we see a direct challenge to First Amendment rights of free speech. The list doesn’t even include the book bans already in place in Florida, state actions that directly challenge the decisions of local school boards and teachers as to what should be available to students in school libraries. Texas evidently leads the way in book bans, but Florida is not far behind.
All of this is part of a carefully orchestrated campaign by DeSantis to be the GOP’s preferred “culture warrior,” proclaiming how “free” Florida is from “woke-ism” (whatever that is). But clearly, these boasts about “freedom” are in direct collision with long-held guarantees of free speech under the First Amendment.
We can expect many legal challenges to these laws based on the supremacy of the Constitution and the First Amendment over traditionally recognized state powers. In the meantime, it seems safe to say that what DeSantis and his super-majority legislature will be doing is . . . . perfectly legal, but wrong.
Oh, and the knave? Merriam Webster defines knave as “a tricky, deceitful person.” Thus, while Florida is not really the land of the free, but it clearly is the home of the knave.