Pernell v. Lamb: Censorship in the United States

In the early 1960s, the state of Rhode Island had a commission that enforced a law protecting minors from offensive and obscene materials. More specifically, the commission screened published content, and publishers were forced to collect all unsold copies and stop the distribution of their content if it was found to be offensive or obscene by the commission. If the publishers did not comply with this order, they could be prosecuted. Four publishers sued as a result of facing these consequences [1]. By 1963, the Supreme Court decided in the case of Bantam Books Inc. v. Sullivan that "blacklisting books as obscene amounted to governmental censorship devoid of constitutional safeguards for state regulation, and thus violated the First and Fourteenth Amendments" [2]. While the Supreme Court ruled that states have the right to regulate obscene content, they also found that the practice in this case was unconstitutional because it restricted adults’ access to content that was inappropriate for minors [3]. Despite this decision that was made over sixty years ago, censorship is still an issue that is being decided on in court today. 

The Stop Wrongs Against Our Kids and Employees Act (Stop W.O.K.E Act) is a censorship law that was passed in Florida to prohibit educators from discussing race and gender in the classroom [4]. More specifically, this bill deems it unlawful to require new employee training that teaches that the following eight teachings constitute discrimination based on race, color, sex, or national origin: 

- "Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin" [5]. 

- "An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously" [6]. 

- "An individual’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin" [7]. - "Members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin" [8]. 

- "An individual, by virtue of his or her race, color, sex, or national origin, bears responsibility for or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin" [9]. 

- "An individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion" [10]. 

- "An individual should not feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race, color, sex, or national origin" [11]. - "Such virtues of merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin" [12]. 

Essentially, the bill makes it unlawful for Florida public school teachers to teach students that the above statements constitute discrimination. It also makes it unlawful for teachers to receive training before being employed to make them aware of what constitutes discrimination. It is important to note that this bill is an overt rejection of critical race theory principles [13]. The bill claims that the rejection of critical race theory principles is an effort to prevent discrimination towards white people. However, by making it unlawful to teach students what constitutes discrimination, the bill is intrinsically discriminatory. 

In February of 2022, the Stop W.O.K.E Act was passed in the Florida House and by the Florida Senate by March of the same year [14]. By August of 2022, the American Civil Liberties Union (ACLU), the ACLU of Florida, the Legal Defense Fund, and Ballard Spahr filed a lawsuit challenging the Stop W.O.K.E Act on behalf of Florida educators and students in higher education [15]. This case is known as Pernell v. Lamb. In November of 2022, Chief United States District Court Judge Mark E. Walker issued a preliminary injunction on the law [16]. This prevented the enforcement of the law, pending appeal. The defendants, however, appealed the decision Judge Mark E. Walker made. While the decision from the 11th Circuit Court is still pending, the circuit judge also issued a preliminary injunction on the bill in March of 2023 [17]. 

The issuance of a preliminary injunction, preventing the enforcement of the bill while its constitutionality is under review, stands as a legally sound decision. This bill violates the First Amendment and the Fourteenth Amendment. Furthermore, there are several decisions from past cases that would be inconsistent with the constitutionality of the Stop W.O.K.E Act. Therefore, I urge the circuit court judges to uphold the district court’s decision to block the enforcement of the Stop W.O.K.E Act. 

The Stop W.O.K.E Act is unconstitutional because it violates the First Amendment and the Fourteenth Amendment (including the Equal Protection Clause) by limiting what teachers in public schools can tell their students. The nuanced nature of freedom of speech often invites subjective interpretation; however, prior cases similar to Pernell v. Lamb have progressively clarified the boundaries of this right. These precedents have distinguished between lawful restrictions and actions that infringe upon the First Amendment. 

For example, in the case of Rosenberger v. Rector and Visitors of the University of Virginia, the university refused to provide funding for the publication of a Christian journal on the basis that the journal "primarily promoted or manifested a particular belief in or about a deity or an ultimate reality" [18]. However, the court found that the university’s refusal violated the First Amendment because it not only limited his speech by financial constraints but also amounted to viewpoint discrimination. Specifically, this refusal of funding amounted to viewpoint discrimination because the university promoted other forms of speech (like atheist perspectives), but not this one [19]. For this refusal to be constitutional, the university would have to treat all forms of speech equally, meaning if it funds atheist perspectives, it must fund religious perspectives as well. It cannot exclude a perspective or viewpoint. 

In the case of Pernell v. Lamb, the issue of viewpoint discrimination, which was established as unconstitutional in Rosenberg v. Rector and Visitors of the University of Virginia, is evident. The legislation mandates the teaching of both the Holocaust and African-American history, yet it approaches these subjects differently. Specifically, the bill articulates comprehensive objectives for Holocaust education, aimed at understanding "the ramifications of prejudice, racism, and stereotyping, and [to examine] what it means to be a responsible and respectful person, [to encourage] tolerance of diversity" [20]. These objectives directly conflict with the first, fourth, fifth, and seventh prohibited practices described earlier. Remarkably, over twenty lines of the bill are dedicated to detailed directives on Holocaust education, including a mandatory Kristallnacht commemoration week. Conversely, the section on African-American history is limited to seven lines and lacks detailed educational goals, merely listing the historical periods to be covered [21]. 

This disparity in educational goals allows Holocaust education to circumvent the eight prohibited practices, whereas the lack of explicit goals for African-American history subject teachers to these restrictions, complicates the truthful teaching of this subject. Thus, the bill not only constrains free speech but does so unevenly, exemplifying censorship and viewpoint discrimination under the guise of educational policy. This demonstrates a clear violation of the First Amendment, particularly as the bill's eight prohibited practices also entail viewpoint discrimination by rejecting the principles of critical race theory for both teacher training and student education. The prohibition of teaching content solely based on its alignment with critical race theory epitomizes viewpoint discrimination. 

Viewpoint discrimination also violates the Equal Protection Clause of the Fourteenth Amendment. The district court acknowledged that "the challenged provisions of (the new law) unconstitutionally discriminate based on viewpoint in violation of both the First and Fourteenth Amendments" [22]. However, they also stated that these challenged provisions "have ‘no legitimate sweep,’ which is required before laws are considered to be overly broad" [23]. While this bill was not considered vague in legal terms by the district court, some of the unlawful practices seem more broad than concrete which creates space for public schools that do not act according to the bill to lose funding and for teachers who do not act according to the bill to be disciplined or even lose their job. Furthermore, the broadness of the outlined unlawful practices makes it easier for enforcers of the law to discriminate against teachers. An individual can be fired for breaking a law without having a concrete definition of the law. Leah Watson, a Senior Staff Attorney for the ACLU, stated, "The lack of explicit standards about ‘objectivity’ would allow arbitrary, and potentially discriminatory, enforcement of the law" [24]. This could cause teachers to fear losing their jobs and discourage them from talking about topics like African-American history, even though they are technically required to teach the subject. 

This bill requires the teaching of the Bill of Rights and yet violates the very first one. Classrooms in Florida are not the only ones at risk of censorship. Similar bills have also been passed in New Hampshire and Oklahoma [25]. If the court decides in favor of the Stop W.O.K.E Act, the court would essentially take freedom of speech away, which is dangerous. This would also allow history to be told in an untruthful way, which would only leave people uneducated and perpetuate systemic racism. The Stop W.O.K.E Act attempts to justify itself by asserting that it was created to prevent discrimination, but it solely perpetuates it. The court cannot rule in favor of this bill, or else it will put the future of Americans at risk by causing us to live in a society where hate speech, viewpoint discrimination, and even redacted documents are justified. A lack of academic freedom is one step closer to a more unjust society. 

UPDATE: In March 2024, the Circuit Court upheld the district court’s decision to block the Stop W.O.K.E Act, stating that the act was the “greatest First Amendment sin” [26].

 

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Bibliography

[1] Columbia Global Freedom of Expression. “Bantam Books, Inc. v. Sullivan - Global Freedom of Expression.” 

[2] Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S. Ct. 631, 9 L. Ed. 2d 584, 1963 U.S. LEXIS 2094, 1 Media L. Rep. 1116 (Supreme Court of the United States, Decided February 18, 1963) 

[3] id at 2. 

[4] Diaz, Manny. “HB7 Stop W.O.K.E. Act.” 

[5] id at 2. 

[6] id at 2. 

[7] Oyez. “Rosenberger v. Rector and Visitors of the University of Virginia.” [8] id at 2. 

[9] id at 2. 

[10] id at 2. 

[11] id at 3. 

[12] id at 3. 

[13] id at 3. 

[14] id at 3. 

[15] American Civil Liberties Union. “Pernell V. Lamb.” 

[16] Free Speech Center. “Stop W.O.K.E Act (Florida) (2022).” 

[17] id at 3. 

[18] id at 4. 

[19] id at 4. 

[20] id at 4. 

[21] id at 4.

[22] id at 5. 

[23] id at 5. 

[24] Watson, “Lessons Learned From Our Classroom Censorship Win Against Florida’s Stop W.O.K.E. Act.” 

[25] id at 5. 

[26] Nottingham, “Florida’s ‘Stop WOKE Act’ commits a ‘First Amendment sin,’ appeals court says in a ruling that blocks part of the bill.”