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FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
No. 22-13992
LEROY PERNELL,
SHARON WRIGHT AUSTIN,
SHELLEY PARK,
JENNIFER SANDOVAL, et al.,
Plaintiffs-Appellees,
versus
FLORIDA BOARD OF GOVERNORS
OF THE STATE UNIVERSITY, et al.,
Defendants,
BRIAN LAMB,
ERIC SILAGY,
TIMOTHY CERIO,
RICHARD CORCORAN,
AUBREY EDGE, et al.,
Defendants-Appellants.
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2 Opinion of the Court 22-13992
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:22-cv-00304-MW-MAF
No. 22-13994
ADRIANA NOVOA,
SAMUEL RECHEK,
FIRST AMENDMENT FORUM AT
UNIVERSITY OF SOUTH FLORIDA,
Plaintiffs-Appellees,
versus
MANNY DIAZ, JR.,
TIMOTHY M. CERIO,
RICHARD CORCORAN,
AUBREY EDGE,
PATRICIA FROST, et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:22-cv-00324-MW-MAF
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22-13992 Opinion of the Court 3
Before GRANT, LAGOA, and WILSON, Circuit Judges.
GRANT, Circuit Judge:
“Congress shall make no law . . . abridging the freedom of
speech.” U.S. Const. amend I. The First Amendment,
incorporated against the States in 1868, is this country’s written
commitment to the idea that freedom of speech is essential to
freedom of thought, and that both are essential to maintaining our
liberty. The Supreme Court has long been clear that teaching and
scholarship are due some measure of protection under the
Amendment. But how much? And in what contexts? That Court
has not had to say, but this one is now put to the test. The State of
Florida legislated a broad set of speech restrictions banning certain
viewpoints relating to race, color, sex, and national origin in
various settings. The provision at issue here bars Florida’s
educators from promoting or endorsing those disfavored ideas
when instructing students. Its prohibition applies not only in
primary and secondary education, where states traditionally
exercise a great deal of control, but also in public colleges and
universities, where the state government’s role has been far more
limited.
When several groups of professors challenged Florida’s new
restrictions, the State cast about for an existing case or doctrine that
could support its speech ban in the university setting. Finding
none, it tried to marry public-employee speech cases with
government speech doctrine, resulting in a new rule: if the
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government pays a professor’s salary, it has total control over her
classroom speech.
That is not a blessed union. Florida’s salary-for-speech rule
is a breathtaking assertion of power to ban unpopular ideas from
public discourse in the very places the State’s own statutes
recognize as centers of inquiry—classrooms where students are
trusted to puzzle through ideas that are good and bad, easy and
hard, ideally getting ever closer to the truth. This new rule also
runs headlong into the Supreme Court’s repeated, if imprecise,
endorsements of academic freedom. If the First Amendment
offers any boundary of protection at all for public university
classrooms, this statute crosses it.
Nor does this Court’s leading academic speech precedent,
Bishop v. Aronov, demand the outcome Florida seeks. 926 F.2d 1066
(11th Cir. 1991). In fact, it counsels the opposite. The restriction
in that case was imposed by one university, against one professor,
relating to speech about one thing—personal religious views that
got in the way of the course’s well-understood parameters.
That precedent makes clear that universities and even other
government entities have crucial authority to shape curricular
content, discipline teachers, and take other steps to guide and
govern postsecondary education. But the speech ban Florida’s
political leaders seek to impose here is different in both nature and
degree from these ordinary concerns. The rule Florida developed
for this case does not withstand scrutiny.
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The ideas Florida targets may well be noxious. Or maybe
not. Either way, in this context the First Amendment trusts
students to figure it out for themselves. We affirm the district
court’s preliminary injunction.
I.
The Individual Freedom Act amends the Florida Education
Equality Act, implementing new speech restrictions on a range of
actors. Fla. Stat. § 1000.05(4)(a). The provision at issue here
disallows any “training or instruction that espouses, promotes,
advances, inculcates, or compels” students at Florida’s public
colleges and universities to believe any of eight concepts relating
to topics like race and sex:
1. Members of one race, color, national origin, or sex
are morally superior to members of another race,
color, national origin, or sex.
2. A person, by virtue of his or her race, color,
national origin, or sex, is inherently racist, sexist, or
oppressive, whether consciously or unconsciously.
3. A person’s moral character or status as either
privileged or oppressed is necessarily determined by
his or her race, color, national origin, or sex.
4. Members of one race, color, national origin, or sex
cannot and should not attempt to treat others
without respect to race, color, national origin, or sex.
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5. A person, by virtue of his or her race, color,
national origin, or sex, 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, national
origin, or sex.
6. A person, by virtue of his or her race, color,
national origin, or sex, should be discriminated
against or receive adverse treatment to achieve
diversity, equity, or inclusion.
7. A person, by virtue of his or her race, color, sex, or
national origin, bears personal responsibility for and
must feel guilt, anguish, or other forms of
psychological distress because of actions, in which the
person played no part, committed in the past by other
members of the same race, color, national origin, or
sex.
8. Such virtues as merit, excellence, hard work,
fairness, neutrality, objectivity, and racial
colorblindness are racist or sexist, or were created by
members of a particular race, color, national origin,
or sex to oppress members of another race, color,
national origin, or sex.
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Id. 1 Though “promot[ing]” any of these concepts is barred,
criticizing them is not. Id. Beyond that, the Act allows instructors
to introduce the ideas in a neutral fashion, permitting discussion
“as part of a larger course”—so long as “instruction is given in an
objective manner without endorsement of the concepts.” Id.
§ 1000.05(4)(b). And the law does not say how far past the
classroom its restrictions extend—off-campus speeches and other
settings may be in play. See § 1000.05(4)(a). Contra Dissenting Op.
at 15.
The penalties for endorsing these disfavored viewpoints are
steep—for both individuals and universities. As directed by the
Act, Florida’s Board of Governors adopted a comprehensive
enforcement regime, requiring public colleges and universities to
implement the Act’s proscriptions and provide a way to report
violations. See Fla. Bd. of Govs., Reg. No. 10.005, Prohibition of
Discrimination in University Training or Instruction (2022). Under
those regulations, if the Board of Governors decides that a
university “willfully and knowingly” failed to correct a violation of
the Act’s speech ban, the university will not receive “performance
funding for the next fiscal year.” Id. § (4)(d). That kind of loss
would be financially devastating. The University of South Florida,
for example, stood to lose just over $73 million during the 2021–
1 The Act’s terms apply to all public schools, starting with kindergarten and
going through graduate school, but the plaintiffs challenge only its application
to postsecondary schools.
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2022 academic year—about fifteen percent of its total state
appropriations.
Individual consequences can be severe too. Students (as
well as unnamed other observers) can turn in professors whenever
they perceive a violation. Id. § (2)(a). Those reports trigger
investigative protocols for universities, who are then required to
investigate any “credible” complaints. Id. § (3)(b). If a university
finds any instruction or training that is “inconsistent with” the Act,
it must self-report that violation to the Board of Governors. Id.
§ (3)(c). The university must separately “mandat[e]” that
professors modify their lectures “to be consistent with” the Act. Id.
And if a professor refuses? Potential termination. But even
compliance offers no safe haven—according to the regulations, a
university can impose unspecified “disciplinary measures” for
violative content, even after the coursework is corrected. 2 Id.
Two groups of plaintiffs sued various state officials and
university administrators in separate lawsuits. 3 In Pernell v. Florida
Board of Governors, the plaintiffs are five current professors and one
2 The State seeks to assuage our concerns by assuring us that no professor will
be disciplined unless she refuses to correct her lecture. But that is not what
the regulation says. Instead, it says that universities may discipline professors
“where appropriate.” The regulation goes on to escalate the consequences to
termination for those who fail to “comply with the mandate.” Fla. Bd. of
Govs., Reg. No. 10.005(3)(c), Prohibition of Discrimination in University
Training or Instruction (2022).
3 For ease of reference, we generally refer to the defendants collectively as
“Florida.”
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student, all in public universities across the state. In Novoa v. Diaz,
the challengers are one professor, one student, and one student
group at the University of South Florida.4 Both sets of plaintiffs
allege that the Act violates their First Amendment rights because it
suppresses politically disfavored viewpoints, and that the Act is
unconstitutionally vague under the Due Process Clause of the
Fourteenth Amendment because it defines the banned concepts
with abstract language. 5 Both sets of plaintiffs moved for
preliminary injunctive relief.
The district court did not consolidate the two cases, but it
addressed both motions in a single order. In Pernell, the court
enjoined the members of the Florida Board of Governors of the
State University System—all in their official capacities—from
enforcing § 1000.05(4)(a)–(b) of the Florida Statutes and Regulation
10.005(2)–(3) and (4)(d). And in Novoa, the court enjoined the same
Board of Governors members from enforcing the Act and
Regulation as applied to concepts 1, 2, 3, 5, and 7. It also enjoined
the members of the University of South Florida Board of Trustees,
in their official capacities, from enforcing the laws as applied to
those concepts. In the end, though not every plaintiff had standing
to challenge every concept or sue every defendant, at least one
4 No party challenges the district court’s conclusion that the students’ First
Amendment rights rise and fall with those of the professors.
5 The Pernell plaintiffs also brought an equal protection claim and the Novoa
plaintiffs also sued under the Campus Free Expression Act. The plaintiffs did
not seek preliminary injunctive relief for those claims, however, so we do not
address them here.
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plaintiff had standing to challenge each concept. 6 The defendants
appealed, and this Court consolidated the two cases.
II.
We review the district court’s order granting a preliminary
injunction for abuse of discretion. Otto v. City of Boca Raton, 981
F.3d 854, 860 (11th Cir. 2020). To succeed, the moving party must
show four things: “(1) it has a substantial likelihood of success on
the merits; (2) it will suffer irreparable injury unless an injunction
issues; (3) this threatened injury to the movant outweighs
6 We agree with the district court’s well-reasoned conclusion that at least one
individual plaintiff has standing to challenge each enumerated concept. See
Pernell v. Fla. Bd. of Governors of State Univ. Sys., 641 F. Supp. 3d 1218, 1245–68
(N.D. Fla. 2022). The plaintiffs bring as-applied challenges to the Act, seeking
to vindicate their own First Amendment rights—not the rights of others, say,
K–12 teachers. See DA Mortg., Inc. v. City of Miami Beach, 486 F.3d 1254, 1262
(11th Cir. 2007). Because we conclude that the Act is unconstitutional as
applied to any public postsecondary-school professor, it is unconstitutional as
applied to the plaintiff professors. But nothing in this opinion should be
construed as applying outside the limited context of postsecondary education.
Even so, the dissenting opinion attempts to raise unbriefed questions about
facial and as-applied challenges. See Dissenting Op. at 6–8. We are not quite
sure why, because this opinion draws the very boundary that the Supreme
Court said was missing in Moody; we consider whether the law is
constitutional as it applies to one group of people (college professors) in one
context (college instruction). See Moody v. NetChoice, LLC, 603 U.S. 707, 724
(2024) (“What activities, by what actors, do the laws prohibit or otherwise
regulate?”). To the extent that one could also say that the opinion carries out
a facial analysis for college professors, we have no objection because they have
straightforwardly satisfied “our standards for a facial challenge to the extent of
that reach.” See Doe v. Reed, 561 U.S. 186, 194 (2010).
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whatever damage the proposed injunction may cause the opposing
party; and (4) the injunction would not be adverse to the public
interest.” Honeyfund.com Inc. v. Governor, 94 F.4th 1272, 1277 (11th
Cir. 2024) (quotation omitted).
III.
This Court has already concluded that another provision of
Florida’s Act—the one prohibiting mandatory workplace meetings
endorsing these same ideas about race, sex, and nationality—
enforced unconstitutional viewpoint discrimination. See
Honeyfund, 94 F.4th at 1277. The language here is identical, but the
academic context puts us at an unprecedented First Amendment
intersection: viewpoint discrimination meets public-employee
speech, meets government speech, meets academic freedom.
Viewpoint-based restrictions on speech are widely
disfavored in almost any context—“the greatest First Amendment
sin.” Id. “When the government seeks not just to restrict speech
based on its subject matter, but also seeks to dictate what particular
opinion or perspective individuals may express on that subject, the
violation of the First Amendment is all the more blatant.” Chiles v.
Salazar, 146 S. Ct. 1010, 1021 (2026) (quotation omitted). At the
same time, when the government acts as an employer it has
discretion to restrict employee speech in ways that it could not for
private parties. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
That authority, though, is designed to allow the government to
effectively manage its workplaces, not drive out speech it disfavors.
See Garcetti v. Ceballos, 547 U.S. 410, 418–23 (2006). Of course, if the
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government itself is the speaker, the rules change yet again.
Exempt from First Amendment scrutiny, the government may
choose what to say and what not to say. Shurtleff v. City of Boston,
596 U.S. 243, 251–52 (2022). And on top of all that hovers our
Nation’s tradition of academic freedom—celebrated with vigor,
but constitutionally defined with only the haziest of lines. See, e.g.,
Epperson v. Arkansas, 393 U.S. 97, 104–05 (1968).
A decades-old precedent from this Circuit does not give all
the answers, but it does mark a path. In Bishop v. Aronov, we
considered whether the University of Alabama could bar a
professor from interjecting personal religious beliefs into his
physiology classes. 926 F.2d at 1067–68. Recognizing the tension
between the Supreme Court’s homages to academic freedom and
its precedents on employee speech, this Court sought a
constitutional balance between the two. As Bishop explains, the
Supreme Court’s pronouncements on academic freedom “cannot
be extrapolated to deny schools command of their own courses.”
Id. at 1075. Indeed, the opinion rejects the idea of academic
freedom as an “independent First Amendment right.” Id. But that
does not mean the Constitution has nothing to say. To the
contrary, Bishop emphasized that “[o]ur Nation is deeply
committed to safeguarding academic freedom, which is of
transcendent value to all of us” and “a special concern of the First
Amendment.” Id. (quoting Keyishian v. Bd. of Regents of Univ. of State
of New York, 385 U.S. 589, 603 (1967)).
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Then, as now, none of the Supreme Court’s precedents
provided a controlling answer. Id. at 1072–74. So the Bishop Court
started with Pickering v. Board of Education, the first case in the
Supreme Court’s public-employee-speech trio, “because of the
balancing it suggests.” Id. at 1072; see Pickering, 391 U.S. at 568. The
result was a three-part inquiry. We first considered the context of
the professor’s speech; second, the university’s rights, both as a
public employer and as an arbiter of curricular offerings; and third,
“the strong predilection for academic freedom as an adjunct of the
free speech rights of the First Amendment.” Bishop, 926 F.2d at
1074–75.
This Court thus has already set out a way to evaluate the
competing constitutional interests in the context of postsecondary
education. But before we apply those factors here, one more
consideration demands our attention: whether Garcetti v. Ceballos
shifted the foundation of the analysis. That case, decided fifteen
years after Bishop, defines employee speech in a more expansive
way than its predecessors, including Pickering. See Garcetti, 547 U.S.
at 422–24. But Garcetti too fails to offer a clear answer.
Recognizing the “additional constitutional interests” implicated by
classroom expression, Garcetti explicitly declined to say whether its
expansion of the employee speech category would apply to
teaching and scholarship. Id. at 425.
Here, we have no way to avoid that question. So we first
consider whether Garcetti extends, full-force, to professors teaching
in classrooms, thereby qualifying their lectures as “employee
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speech” subject to control and discipline well beyond what the First
Amendment would otherwise allow. It does not, at least here and
for at least two reasons.
To start, though the employee speech cases provide a useful
framework for balancing interests, their primary rationale—
managing government workplaces—does not apply here. Florida’s
speech restrictions are designed to ban disfavored speech on a
broad scale before it happens, not respond to internal workplace
issues on an individual level. A second objection is more structural.
Blessing an extension of Garcetti here would leave no room—none
at all—for the traditional value of academic freedom. True, the
Supreme Court has not been precise about the boundaries of that
freedom or its relationship to the First Amendment. But expanding
Garcetti to cover every word of every college lecture would imperil
academic freedom to a degree that is incompatible with the
Supreme Court’s precedents.
For its part, Florida seeks to evade any First Amendment
limitations at all by rigging together several speech doctrines to
create a new rule that would quietly remove all free speech
protections from the classroom. Because the government pays the
professors’ salaries, Florida says, their speech is the State’s speech.
Emphatically no. The Florida defendants cannot “put together half
a donkey and half a camel, and then ride to victory on the synthetic
hybrid.” David F. Cavers, The Choice-of-Law Process 39 (1965)
(quotation omitted). When we read the cases Florida cites—rather
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than the quotations it pulls from them—the doctrinal connections
quickly unravel.
Taking Bishop as our guide, then, we conclude that the Act
violates the First Amendment as applied to these plaintiffs.
Viewpoint-based restrictions designed to compel or ban a set of
beliefs are dangerous in any setting, and they are especially
pernicious in the classroom context. That goes double for broadly
worded yet imprecise regulations like these, which are sure to
leave both professors and their students guessing about what kind
of speech might violate the rules. And instead of asserting
traditionally recognized concerns of effective workplace
management, or even legitimate pedagogical values, Florida
weakly suggests that the Act is meant to penalize discrimination.
No—that suggestion is belied by the Act’s own text. Here, as in the
companion workplace provision, “speech is not regulated
incidentally as a means of restricting discriminatory conduct—
restricting speech is the point of the law.” Honeyfund, 94 F.4th at
1283.
More credibly, the State explains that it also seeks to protect
its “most cherished ideals.” But that justification fails, too. Though
the government has plenty of ways to promote its own viewpoint,
puppeteering every university professor in the state is not one of
them. Forcing an official government line—in a college classroom
of all places—is exactly the “pall of orthodoxy” that the First
Amendment will not tolerate. Keyishian, 385 U.S. at 603.
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That is not to say that universities, and even sometimes state
governments, cannot exercise ordinary employee management,
make ordinary curriculum decisions (like which majors or courses
to offer), or otherwise ensure competent academic instruction. But
there is nothing ordinary about the authority Florida seeks here.
The level of control that Florida demands—total—would be
inconsistent not only with our Nation’s traditional constitutional
protections for academic freedom, but also with the doctrines
Florida cobbles together to support its suppression of disfavored
viewpoints.
A.
We first examine how Garcetti changed the employee speech
landscape, expanding the government’s ability to control civil
servants’ work-related communications on an individual basis.
1.
The Supreme Court has long emphasized that the “interplay
between free speech rights and government employment” requires
“a delicate balancing of the competing interests surrounding the
speech and its consequences.” Kennedy v. Bremerton Sch. Dist., 597
U.S. 507, 527–28 (2022) (quotation omitted). But respecting the
government’s prerogatives as an employer while also protecting
employees’ rights to speak as citizens has not been easy. Over time,
this balancing act blossomed into a multi-step framework used to
analyze free speech claims made by government employees who
are subjected to after-the-fact discipline.
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One early case was Pickering v. Board of Education, in which a
high school teacher was dismissed after he penned an article in the
local paper criticizing the School Board’s allocation of funds
between academics and athletics. 391 U.S. at 566. After the teacher
objected to his firing on First Amendment grounds, the Supreme
Court worked to balance the interests of both government and
speaker, while also keeping in mind the “public interest in having
free and unhindered debate on matters of public importance—the
core value of the Free Speech Clause of the First Amendment.” Id.
at 573.
Public employees, the Court reasoned, do not forfeit their
First Amendment rights simply because they work for the
government. Id. at 568. At the same time, the Court recognized
that a state’s interests in regulating speech as an employer “differ
significantly” from its interests in regulating the speech of private
citizens. Id. Governments, like all other employers, need to run
efficient and productive offices. To account for this tension, courts
must balance the interests of the employee, “as a citizen, in
commenting upon matters of public concern,” against the interests
of the state, “as an employer, in promoting the efficiency of the
public services it performs through its employees.” Id. One
interest not considered? The government’s bare desire to avoid
public criticism. See id. at 570–71. Ultimately, the school in
Pickering could not penalize the teacher’s speech because that
expression had neither “impeded the teacher’s proper performance
of his daily duties in the classroom” nor “interfered with the regular
operation of the schools generally.” Id. at 572–73.
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The Court further refined this analysis in Connick v. Myers, a
First Amendment challenge brought by an assistant district
attorney after she was fired for soliciting her coworkers’ opinions
on internal management issues. 461 U.S. 138, 140–42 (1983). In
considering the employee’s constitutional claim, the Court
emphasized that Pickering’s balancing test applies only when the
employee is speaking on a matter of public concern. Id. at 146.
Otherwise, government officials “enjoy wide latitude in managing
their offices.” Id. For Myers, that distinction was bad news.
Tolerating her speech would have resulted in “disruption of the
office and the destruction of working relationships.” Id. at 152.
After all, allowing free-range employee comments on any topic,
internal or external, could breed both chaos and hard feelings.
Together, Pickering and Connick stood for a two-part standard
protecting employee speech: (1) “as a threshold matter, the speech
must be fairly characterized as constituting speech on a matter of
public concern”; and (2) the employee’s “First Amendment
interests in commenting on matters of public concern must
outweigh the government’s interests” as the employer. Maggio v.
Sipple, 211 F.3d 1346, 1351 (11th Cir. 2000) (quotation omitted).
That test held for more than twenty years, until Garcetti v.
Ceballos, 547 U.S. 410 (2006). There, an assistant district attorney
authored internal memoranda attacking a search warrant
affidavit’s validity and advocating that the follow-on prosecution
be dismissed. Id. at 413–14. The difficulty was that while these
topics were matters of public concern, they were also matters of
concern within the office—and even their internal communication
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created serious workplace challenges. The Supreme Court solved
that problem by declaring that on-the-job communications, even
on matters of public concern, were not protected by the First
Amendment. Id. at 421, 423. So “when public employees make
statements pursuant to their official duties”—as opposed to when
they speak as citizens on matters of more general public concern—
“the Constitution does not insulate their communications from
employer discipline.” Id. at 421. Because Garcetti had spoken as
an employee “pursuant to his duties,” his speech was unprotected.
Id.
2.
The Garcetti Court itself recognized that “expression related
to academic scholarship or classroom instruction” may implicate
“additional constitutional interests that are not fully accounted for
by this Court’s customary employee-speech jurisprudence.”
Garcetti, 547 U.S. at 425. But rather than opining on that fraught
question, the Court reserved it: “We need not, and for that reason
do not, decide whether the analysis we conduct today would apply
in the same manner to a case involving speech related to
scholarship or teaching.” Id. Here, we do not have the luxury of
avoiding that question.
We answer in the negative. To start, the rationale
underlying the Pickering–Connick–Garcetti trio of cases does not
apply with equal force to curricular speech by university
professors. The chief concerns motivating those decisions were
about workplace management, not content restriction for its own
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sake. Just like other employers, public agencies “need a significant
degree of control over their employees’ words and actions”—every
workplace grievance need not take on a constitutional dimension.
Id. at 418, 420.
So when an employee’s speech would “disrupt the office,
undermine [the manager’s] authority, and destroy close working
relationships”—in short, when it would impede “the
administration of a government office”—the government can
generally take the same actions that a private employer might.
Connick, 461 U.S. at 154; see also id. at 151–52. Otherwise,
government offices would face “displacement of managerial
discretion by judicial supervision,” with “little chance for the
efficient provision of public services.” Garcetti, 547 U.S. at 418, 423.
But when an employee’s speech does not hinder the “proper
performance of his daily duties” or “interfere[] with the regular
operation of the [workplace] generally,” the government’s
legitimate interest in limiting that expression is no greater than its
interest in limiting similar expression from a private citizen—
which means it cannot do so. Pickering, 391 U.S. at 572–73.
These kinds of managerial concerns are not at play here.
Florida has not asserted that its law plays any role in allowing
proper performance of professors’ daily duties, avoiding classroom
disruptions, or the like. Instead, the law is a “per se ban on speech
the state disagrees with.” Honeyfund, 94 F.4th at 1283. An interest
in banning disfavored viewpoints is not in line with the workplace
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management concerns that give the government extra leeway in
the employee speech cases.
Nor are the university professors here similarly situated to
the employees in the Pickering–Connick–Garcetti trio. They are not
civil servants; their jobs do not involve administering government
programs. Public universities of course perform important civic
functions—chief among them training and educating the next
generation of leaders—but these are different in kind than the
ordinary business of public administration. These distinctions
carry weight, and the Supreme Court has recognized that not all
state actors are treated equally when it comes to on-the-job
expression. The speech of elected officials, for example, receives
greater protection than that of traditional civil servants. See Wood
v. Georgia, 370 U.S. 375, 394–95 & n.21 (1962) (sheriff); Bond v. Floyd,
385 U.S. 116, 135–36 (1966) (legislator). In First Amendment cases,
the context always matters, and university professors are not in the
same box as civil servants.
What’s more, this case involves a broad legislative speech
ban enacted by political authorities—the Florida legislature and the
Governor—who are not the professors’ employers and who
exercise no direct supervision or control over their employment.
See, e.g., Fla. Stat. § 1001.741(1)–(2) (university president has final
say on employment decisions); Fla. Const. art. IX § 7(d) (Board of
Governors is responsible for management and operation of the
university system). The “Pickering test is inapplicable” when “the
State is not acting in a traditional employer role,” and seeking to
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22 Opinion of the Court 22-13992
enforce a legislative speech ban is not remotely equivalent to a boss
supervising her employee. Harris v. Quinn, 573 U.S. 616, 652 (2014).
Indeed, it is even a far cry from a state board’s exercise of control
over K–12 curriculum. See, e.g., Fla. Stat. § 1001.03(1) (granting the
State Board of Education power over public K–12 curricular
standards).
One other feature of the public-employee speech cases
dissuades us from extending their reasoning here. All three
centered on disciplining a single employee who had already
spoken—“a post hoc analysis of one employee’s speech and its
impact on that employee’s public responsibilities.” United States v.
Nat’l Treasury Emps. Union, 513 U.S. 454, 467 (1995). Here, the
government’s attempt to control employee speech is at the other
end of the spectrum. The Act is a wide-ranging, ex ante restriction
on the speech of every public university professor in the state.
Because the Act “chills potential speech before it happens,” the
State’s “burden is greater with respect to this statutory restriction
on expression than with respect to an isolated disciplinary action.”
Id. at 468.
3.
Those contrasts would likely be enough to counsel against
extending Garcetti. But one other consideration looms large: if
Garcetti applies to all aspects of scholarship and teaching, academic
freedom is a nullity. And that cannot be—though the Supreme
Court has been stingy about the details of academic freedom, it has
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been generous in its declarations that scholarship and teaching are
part of the First Amendment package.
Time and again, the Supreme Court has made clear that
“teachers do not ‘shed their constitutional rights to freedom of
speech or expression at the schoolhouse gate.’” Kennedy, 597 U.S.
at 531 (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S.
503, 506 (1969)). “The essentiality of freedom in the community of
American universities is almost self-evident. . . . To impose any
strait jacket upon the intellectual leaders in our colleges and
universities would imperil the future of our Nation.” Sweezy v. New
Hampshire, 354 U.S. 234, 250 (1957). This Court has said so, too:
“The protections of the First Amendment have been given special
meaning when teachers have been involved.” Pred v. Bd. of Pub.
Instruction, 415 F.2d 851, 855 (5th Cir. 1969). 7 Because academic
freedom “is of transcendent value to all of us and not merely to the
teachers concerned,” the First Amendment “does not tolerate laws
that cast a pall of orthodoxy over the classroom.” Keyishian, 385
U.S. at 603.
We could go on—as noted, the Supreme Court has been
unsparing in its praise for academic freedom and in tying that value
to the First Amendment. 8 The trouble, of course, is that apart from
7 Decisions by the former Fifth Circuit handed down before October 1, 1981,
are binding on this Court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th
Cir. 1981) (en banc).
8 See, e.g., Sweezy, 354 U.S. at 250; Barenblatt v. United States, 360 U.S. 109, 112
(1959); Shelton v. Tucker, 364 U.S. 479, 487 (1960); Keyishian, 385 U.S. at 603;
Whitehill v. Elkins, 389 U.S. 54, 59–60 (1967); Epperson, 393 U.S. at 104; Tinker, USCA11 Case: 22-13992 Document: 156-1 Date Filed: 07/07/2026 Page: 24 of 85
24 Opinion of the Court 22-13992
these declarations about its importance, the Supreme Court’s
discussions of the nature of academic freedom are murky at best:
“Lacking definition or guiding principle, the doctrine floats in the
law, picking up decisions as a hull does barnacles.” J. Peter Byrne,
Academic Freedom: A “Special Concern of the First Amendment,” 99 Yale
L.J. 251, 253 (1989). But the fact remains that these decisions are
unequivocal in their recognition that the First Amendment
protects at least some core aspects of teaching and scholarship,
even in public universities. Extending Garcetti’s rationale to allow
a state to ban every professor at every public university from
promoting a set of viewpoints while teaching would swiftly
transform academic freedom from a constitutional value into a
constitutional nullity. And it would soon lead to orthodoxy
displacing inquiry in our classrooms.
* * *
Several features of the Supreme Court’s public-employee
speech precedents motivate our decision not to extend Garcetti: the
mismatch between the workplace-management rationales behind
those decisions and the motivations at play here, the kinds of
employees Garcetti and its predecessors applied to, the nature of the
speech restrictions at issue, and the traditional importance of
393 U.S. at 511–12; Healy v. James, 408 U.S. 169, 180–81 (1972); Regents of Univ.
of Michigan v. Ewing, 474 U.S. 214, 226 (1985); Univ. of Pennsylvania v. EEOC, 493
U.S. 182, 198 n.6 (1990).
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academic freedom.9 To be sure, Garcetti may still apply to a
professor’s speech in another context, including when that speech
impedes the proper administration of the school. But if there is
anything Garcetti cannot cover, it is broad legislative bans on
disfavored speech—not if academic freedom has any constitutional
weight at all.
B.
To be fair, even the Florida defendants do not push for a
straightforward application of Garcetti. Instead, they hitch
employee speech cases to government speech cases, resulting in a
new rule altogether: because these professors were hired by and
are paid by the government, everything they say in their
classrooms is really the government speaking. That assertion is no
less remarkable than it sounds. But Florida’s rule is not one that
emerges neatly—or at all—from any one case. Instead, it requires
connecting doctrines together in a way that almost makes sense
when bouncing from quote to quote.
The first stop is a few lines from Rosenberger v. Rector &
Visitors of University of Virginia, which Florida characterizes as a
government speech case. It is not. Rosenberger instead explained
that a university must be viewpoint neutral in sponsoring student
9 We are not alone in this conclusion. See e.g., Reges v. Cauce, 175 F.4th 1014,
1030–33 (9th Cir. 2026); Kilborn v. Amiridis, 131 F.4th 550, 557–58 (7th Cir.
2025); Heim v. Daniel, 81 F.4th 212, 224–28 (2d Cir. 2023); Meriwether v. Hartop,
992 F.3d 492, 504–06 (6th Cir. 2021); Adams v. Trs. of Univ. of North CarolinaWilmington, 640 F.3d 550, 562–64 (4th Cir. 2011).
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26 Opinion of the Court 22-13992
groups. In so holding, the Supreme Court noted that the
University need not be viewpoint neutral in its own speech, “which
is controlled by different principles.” 515 U.S. 819, 833–34 (1995).
Of course—universities have control over their own curriculums.
How would it be otherwise? They need not offer, for instance,
every class a student would like to take. But that does not resolve,
or really even address, the issues in this case. For one, Rosenberger
is about a university’s decision, not a state legislature’s mandate.
That’s true, in fact, of all the cases Florida cites in support of
curricular control—it is the university’s view of the curriculum that
is privileged, not the legislature’s. Same goes for the dissent, which
repeatedly overlooks that the precedents it cites—all of them—
reserve space for universities to discipline their employees, not for
state political bodies to discipline public dialogue.10 See Dissenting
Op. at 1–2, 14–15.
10 The dissent looks to a Third Circuit opinion by then-Judge Alito for support,
but will not find it there. See Dissenting Op. at 27–28. Why? Because that
case, unlike this one, was about an ordinary disciplinary decision against one
professor by one university. And that opinion does not make the same
mistake as the dissent—mixing up the state and the university, treating one as
the equivalent of the other. See Edwards v. California Univ. of Pennsylvania, 156
F.3d 488 (3d Cir. 1998). Justice Alito noted, for example, that “the First
Amendment does not place restrictions on a public university’s ability to
control its curriculum.” Id. at 491 (emphasis added). Agreed. He also
explained that “the University was acting as speaker and was entitled to make
content-based choices in restricting [the individual professor’s] syllabus.” Id.
at 492 (emphasis added). Yes—universities can make just that sort of decision.
He went on to say that “the University can make content-based decisions when
shaping its curriculum.” Id. (emphasis added). Again, yes—we are three for
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Another fundamental problem with Florida’s argument is
that Rosenberger never so much as suggests that in-class speech by a
professor is per se government speech. While Rosenberger explains
that a university speaks through “the content of the education it
provides,” reading those words in isolation, as Florida invites us to
do, distorts their meaning. 515 U.S. at 833. Rosenberger was a case
restricting the government’s ability to impose speech limitations on
student groups, with the Supreme Court concluding that a
university’s selective denial of funding to religious groups was
unconstitutional viewpoint-based discrimination. Id. at 836–37. By
Florida’s logic, Rosenberger would have gone the other way—
because the University was funding the groups, it could control
their speech.
three. And in summing up his conclusions, he rejected the idea that an
individual professor has “a constitutional right to choose curriculum materials
in contravention of the University’s dictates”—but not before noting that
“academic freedom thrives not only on the independent and uninhibited
exchange of ideas among teachers and students, but also, and somewhat
inconsistently, on autonomous decisionmaking by the academy itself.” Id.
(alteration adopted, emphasis added, and quotation omitted). We agree with
both the reasoning and the result of Justice Alito’s opinion, and reject the
dissent’s suggestion that it undermines anything about this one. And, like
Edwards, all of the other cases cited by the dissent deal with a university
exercising ordinary supervision over its professors and instructors on an
individual basis; none come close to endorsing total legislative control over
academic speech. Dissenting Op. at 15–17; see Ferguson v. Thomas, 430 F.2d
852, 853–55 (5th Cir. 1970); Duke v. N. Texas State Univ., 469 F.2d 829, 831–33
(5th Cir. 1972); Megill v. Bd. of Regents, 541 F.2d 1073, 1080–85 (5th Cir. 1976);
Pred, 415 F.2d at 853–54.
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The same thing goes for the cherry-picked quotations from
Board of Regents of University of Wisconsin System v. Southworth, in
which the Supreme Court upheld a university’s mandatory student
activity fee. 529 U.S. 217, 221 (2000). Here, too, the challenge was
from students, who did not want to financially support, even
indirectly, student groups they disagreed with. And in approving
the university’s viewpoint-neutral policy, the Court again
suggested that different “principles applicable to government
speech would have to be considered” if the speech at issue were
“by an instructor or a professor in the academic context.” Id. at
235. What it did not say is that an individual professor’s speech is
invariably government speech. The Southworth Court thus was
carving out, rather than deciding, the question of academic speech.
It was also reserving academic freedom for universities. Those
moves sound familiar.
After reciting these acontextual quotations, the defendants’
briefing shifts to government speech cases, arguing that because
Florida “appropriates public funds” to support public education at
the State’s universities, it is “entitled to say what it wishes” at those
universities. 11 That is a sweeping assertion, and one that is
unsupported by the cited government speech precedents. Those
cases are about public monuments, license plates, and the like—
11 See Pleasant Grove City v. Summum, 555 U.S. 460, 464 (2009) (city’s placement
of a privately funded monument in a public park was government speech);
Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 219–20 (2015)
(state’s specialty license plate designs were government speech).
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not anything close to academic teaching. The thrust of their
holdings is that when the government speaks it can choose its
message. There is no need, as the Supreme Court put it, for a local
government that supports recycling to include a counterargument
from the local trash company. See Walker v. Tex. Div., Sons of
Confederate Veterans, Inc., 576 U.S. 200, 207 (2015). The classic
government speech cases Florida leans on are also about the
government itself expressing certain ideas—not banning
employees from endorsing others. Even so, the State asserts that
“if the speech of private individuals proposing license plate slogans
is government speech, then surely the classroom speech of stateemployed educators at state universities is too.” But why? Florida
does not say.
Not only is Florida’s government speech argument wrong,
it also amounts to double-dealing, because the State later asserts
that the actual government speech doctrine is “wholly inapplicable
here.” Rather than asking us to conduct the analysis dictated by
case law, the Florida defendants would have us conclude—by ipse
dixit apparently—that all speech, by any professor at a public
university, is government speech, completely unprotected by the
First Amendment. But the Supreme Court has never endorsed
anything like that idea, and we decline to take Florida’s word for it.
In fact, we are rightfully wary of this very sleight of hand: the
government speech doctrine may not be used “as a subterfuge for
favoring certain private speakers over others based on viewpoint.”
Pleasant Grove City v. Summum, 555 U.S. 460, 473 (2009). And in
service of that same concern, we “exercise great caution before
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30 Opinion of the Court 22-13992
extending our government-speech precedents.” Matal v. Tam, 582
U.S. 218, 235 (2017).
A variety of factors are at play when considering whether
the government is speaking, reflecting the Supreme Court’s
guidance that the inquiry is a “holistic” one, neither “mechanical”
nor a “rote application of rigid factors,” but “driven by a case’s
context.” Shurtleff, 596 U.S. at 252. Several considerations may be
relevant, including “whether the government maintains control
over the speech,” “whether the type of speech has traditionally
communicated government messages,” and “whether the public
would reasonably believe that the government has endorsed the
speech.” McGriff v. City of Miami Beach, 84 F.4th 1330, 1334 (11th
Cir. 2023); see also Shurtleff, 596 U.S. at 252.
We first consider whether the government maintains
control over the speech here. The State has traditionally exercised
relatively little control over postsecondary education, especially as
compared to public primary or secondary education. Florida
imposes few curricular requirements by statute. And those that it
does impose involve basic general education requirements—things
like how many core classes students must take to graduate and
what standards a communications course must meet. (Such a
course “must afford students the ability to communicate
effectively.”) See Fla. Stat. § 1007.25(3). And the “purpose and
mission” of Florida’s postsecondary educational system, as defined
by state law, is to “enable[] all students to participate in the search
for knowledge and individual development,” to “discover and
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disseminate knowledge,” to “foster[] diversity of educational
opportunity,” and to “develop in students heightened intellectual,
cultural, and humane sensitivities.” Fla. Stat. § 1004.01. These
broad ambitions are inconsistent with unrestricted control over the
messages conveyed by university professors.
The relative independence of Florida’s universities diverges
from the State’s near plenary authority over primary and secondary
education, where “state academic standards establish the core
content of the curricula to be taught in the state.” Fla. Stat.
§ 1003.41(1). In exercising this broad authority, the State Board of
Education has adopted a comprehensive list of educational
standards—nearing 7,300 in number and spanning every subject
and every grade. See Browse and Search Standards, CPALMS,
https://www.cpalms.org/Public/search/Standard [https://
perma.cc/92R9-FR7Y]; see also Learning Systems Institute, Florida
State University, https://lsi.fsu.edu/projects/current/cpalms
[https://perma.cc/PC2Z-LLBK]. To meet these standards,
moreover, public school teachers must “us[e] the books and
materials required,” “follow[] the prescribed courses of study,” and
only “employ[] approved methods of instruction.” Fla. Stat.
§ 1003.42(2). The state government, in short, has traditionally
controlled the curriculum in primary and secondary schools, but
offers only minimal statutory guidance in the postsecondary
education context.
The State’s relative detachment from college lectures is even
more revealing when compared to the level of state control we see
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32 Opinion of the Court 22-13992
in the government speech context—nearly total. A few examples
illustrate the point. In one case about the use of a stadium
loudspeaker during a state championship game, this Court
explained that the announcer’s remarks were “entirely scripted,”
with “[e]very word” written by a state employee. Cambridge
Christian Sch., Inc. v. Fla. High Sch. Athletic Ass’n, 115 F.4th 1266,
1293–94 (11th Cir. 2024). And in another involving a USDAsponsored pro-beef campaign, the Supreme Court noted that the
government exercised “final approval authority over every word
used.” Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 561 (2005).
Florida does not—and could not—exercise that kind of control
over every postsecondary class lecture. Indeed, Florida does not
argue that it has controlled every word that university professors
say, only that it can. And common sense also has a role to play
here. Does anyone really think that every professor in every class
at every public university is putting forward the official line of the
State’s political branches? So while the government speech
doctrine “does not require omnipotence,” Florida has not come
close to exhibiting the degree of control necessary to classify
professors’ lectures as government speech. Leake v. Drinkard, 14
F.4th 1242, 1250 (11th Cir. 2021).
The second and third factors—whether the speech has
traditionally communicated government messages and whether
the public would view the speech as endorsed by the
government—are closely related here. Certainly at some level the
public perceives a seal of approval from the State for the curricular
decisions of its universities. And courts have recognized that the
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universities themselves at least have control over “the parameters
of focus and general subject matter of curriculum.” Bishop, 926
F.2d at 1073 (quotation omitted). But the text of this law does not
seek to develop the curriculum of a university, of a major, or even
of a class. Instead, it seeks to bar disfavored speech on one set of
topics at every university and in any class. And it does so in a way
that contradicts Florida’s longstanding (and presumably still valid)
statutes governing its universities.
Florida law, for instance, requires state universities to
continually assess “the intellectual freedom and viewpoint
diversity” and “the extent to which competing ideas and
perspectives are presented” at the school. Fla. Stat.
§ 1001.706(13)(b). And the Board of Governors is forbidden from
limiting students’ “access to, or observation of, ideas and opinions
that they may find uncomfortable, unwelcome, disagreeable, or
offensive,” if that speech is protected by the First Amendment. Id.
§ 1001.706(13)(a)(2), (c). These principles are consistent with the
Supreme Court’s recognition that the “classroom is peculiarly the
‘marketplace of ideas.’” Keyishian, 385 U.S. at 603. And they are
inconsistent with the idea that university professors communicate
government messages as mouthpieces of the state. These statutes
(together with common sense) make clear that the public—and
even the State—both recognize that university professors speak
independently and without government endorsement of every
idea they communicate.
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So neither the defendants’ cherry-picked quotations, nor a
true government speech analysis (which the defendants disclaim),
supports their far-reaching conclusion. And the combination of the
two fares no better—zero plus zero is still zero. The defendants’
mashed-up theory of government speech results in an astonishing
assertion: if the government pays your salary, it can dictate every
word you say as part of your job. Even in the academic context.
And Florida leans into this assertion rather than minimizing it,
agreeing at oral argument that a state legislature could
constitutionally ban any negative classroom statements about a
particular gubernatorial administration. We give the State credit
for not feigning limits that its theory lacks, but the chimeric
government speech doctrine it conjures cannot withstand
constitutional scrutiny.
C.
With both Garcetti and Florida’s salary-for-speech approach
to academic freedom off the table, we are still left with a difficult
question: can the Individual Freedom Act’s speech restrictions be
constitutionally applied to these professors? After all, though it
offers little direct control, Florida (like other states) is
fundamentally in charge of its public universities, appointing most
members of the Board of Governors, providing considerable
funding, and establishing certain core curricular standards.
“Federal judges should not be ersatz deans or educators.” Bishop,
926 F.2d at 1075. And because “States historically have been
sovereign” in the field of education, the “traditional role in the
formulation and execution of educational policy” belongs to
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them—not us. United States v. Lopez, 514 U.S. 549, 564 (1995); Bd.
of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176,
208 n.30 (1982). That leaves federal courts “reluctan[t] to trench
on the prerogatives of state and local educational institutions.”
Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 226 (1985); see
also Virgil v. Sch. Bd., 862 F.2d 1517, 1520 (11th Cir. 1989). But these
precedents, like their counterparts reserving space in the First
Amendment catalogue for academic freedom, fail to provide a
direct answer to the question we consider today.
We thus return to Bishop, which asked as we do here, “to
what degree a school may control classroom instruction before
touching the First Amendment rights of a teacher.” Bishop, 926
F.2d at 1073. As we explained earlier, that case arose when the
University of Alabama barred one of its professors from using class
time to describe his religious views. Id. at 1068–70. Some of his
comments concerned his belief in “the creative force behind
human physiology.” Id. at 1068. Others were made to share his
faith, be open about his biases, and offer suggestions for students
on how to deal with academic stress. Id. But the students sought
something else—an uninterrupted course on exercise physiology.
After enough complaints, the University directed Bishop to stop,
forbidding him from “presenting his religious viewpoint during
instructional time, even to the extent that it represent[ed] his
professional opinion about his subject matter.” Id. at 1069, 1077.
We ultimately rejected the professor’s free speech challenge to that
restriction. Id. at 1076–77.
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36 Opinion of the Court 22-13992
Here, Florida suggests that a direct line connects the
constitutionality of the University’s response to Bishop with the
constitutionality of the Florida political branches’ prophylactic
speech ban on all public college and university professors. Not so.
Bishop itself instructs that there is “no substitute for a case-by-case
inquiry into whether the legitimate interests of the authorities are
demonstrably sufficient to circumscribe a teacher’s speech.” Id. at
1074 (quotation omitted). We are thus surprised by the dissenting
opinion’s insistence that Bishop has already decided this very
different case (and presumably every other case about academic
freedom) in favor of state control. See Dissenting Op. at 22 (“In
short, Bishop held that professors have no First Amendment right
to overrule their employer’s judgment concerning the content of
classroom instruction.”).
As directed by this Court’s precedent, we take as our starting
point Pickering’s baseline balancing test for assessing when
governmental interests outweigh a government employee’s First
Amendment rights. See Pickering, 391 U.S. at 568; Bishop, 926 F.2d
at 1072. And again following Bishop’s lead, we recognize “the ‘basic
educational mission’” of the university system, which authorizes
“the use of ‘reasonable restrictions’ over in-class speech that [the
State] could not censor outside the classroom.” Bishop, 926 F.2d at
1074 (quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266–
67 (1988)). Along those same lines, we recognize Kuhlmeier’s
holding (endorsed in Bishop) that “educators do not offend the First
Amendment by exercising editorial control over the style and
content of student or professor speech in school-sponsored
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expressive activities so long as their actions are reasonably related
to legitimate pedagogical concerns.” Id. (alteration adopted)
(quoting Kuhlmeier, 484 U.S. at 273).
These factors cash out to the recognition that here, as in
other First Amendment cases, we are called to balance the
professors’ interests against the State’s. But the government’s
interests in this equation are rather circumscribed: editorial control
is taken for granted, but restrictions must be reasonable and related
to legitimate pedagogical concerns. In conducting this analysis, we
consider Bishop’s three general factors: the context of the speech;
the state’s “position as a public employer”; and the “strong
predilection for academic freedom as an adjunct of the free speech
rights of the First Amendment.” Id. at 1074–75.
First, context. Here the context is the same as in Bishop: “the
university classroom during specific in-class time.” Id. at 1074.
Bishop also noted that the “University’s interest is most obvious
when student complaints suggest apparent coercion—even when
not intended by the professor.” Id. The word coercion, to be sure,
has echoes of Establishment Clause precedents (particularly
around the time of Bishop), but we think that concern is relevant
here, too.12 Florida’s restrictions are, as the State admits, an
attempt to force uniformity of thought on students by curtailing
the free exchange of ideas in universities—the very environments
traditionally regarded as laboratories for expression and truth
12 Bishop rejected the Free Exercise claim and Establishment Clause claim
brought by the professor. Bishop, 926 F.2d at 1077–78.
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seeking. See Healy v. James, 408 U.S. 169, 180–81 (1972); Rosenberger,
515 U.S. at 835–36. Compelling certain beliefs by suppressing
“individual thought and expression” is “especially” dangerous in
the classroom context, “where the State acts against a background
and tradition of thought and experiment that is at the center of our
intellectual and philosophic tradition.” Rosenberger, 515 U.S. at 835.
Unlike in Bishop, where the University was furthering an anticoercion goal, Florida here asserts the opposite interest—coercing
university faculty (and by extension the students) into avoiding a
certain set of ideas. Whether Florida is right or wrong about how
dangerous these viewpoints are is irrelevant, at least to our inquiry
as a court. “No matter how controversial the ideas, allowing the
government to set the terms of the debate is poison, not antidote.”
Honeyfund, 94 F.4th at 1283; see also Sweezy, 354 U.S. at 251; id. at
261–63 (Frankfurter, J., concurring).
Second, we consider the State’s interests as an employer.
“Courts agree that the school’s administration may at least
establish the parameters of focus and general subject matter of
curriculum.” Bishop, 926 F.2d at 1073 (quotation and ellipses
omitted). No doubt. And “[t]angential to the authority over its
curriculum, there lies some authority over the conduct of teachers
in and out of the classroom that significantly bears on the
curriculum or that gives the appearance of endorsement by the
university.” Id. at 1074. This recognition, we think, significantly
mitigates the risk that enforcing the First Amendment in the
academic context would leave universities or other government
authorities powerless to set overall curricular decisions or exclude
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speech that veers outside of well-understood parameters—
personal tangents irrelevant to the subject matter, conspiracy
theories, and the like.
Our own early cases support this same point. In one, we
found no constitutional error when a university fired a professor
whose speech “seriously impair[ed] . . . his effectiveness as an
instructor.” Ferguson v. Thomas, 430 F.2d 852, 859 (5th Cir. 1970).
In another, we rejected a First Amendment challenge to a
university’s decision to deny tenure when the professor gave
students two course credits for effectively taking only one course;
awarded most students high grades for little work; made “untrue
and misleading public statements”; and demonstrated a lack of
“professionalism and maturity.” Megill v. Bd. of Regents, 541 F.2d
1073, 1082–83, 1085 (5th Cir. 1976). And in Bishop, we again found
no First Amendment violation when the university determined
that a professor’s tangential speech impeded his ability to properly
teach physiology. Bishop, 926 F.2d at 1076–77. These cases show
that even when reserving space for academic freedom, university
administrators (and perhaps other government officials too) have a
legitimate interest in ensuring that a professor’s in-class speech is
both “germane” to the curriculum and “professionally competent.”
See Keith E. Whittington, Professorial Speech, the First Amendment,
and Legislative Restrictions on Classroom Discussions, 58 Wake Forest
L. Rev. 463, 501–07 (2023); see also Matthew W. Finkin & Robert C.
Post, For the Common Good 87–100 (2009); Henry Reichman,
Understanding Academic Freedom 66–69 (2021).
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40 Opinion of the Court 22-13992
Florida’s justifications are not in line with those rationales.
Rather than asserting an interest in promoting classroom efficiency
or appropriately educating students, Florida says its “sovereign
judgment” is that the forbidden viewpoints are “contrary to the
State’s most cherished ideals.” But advancing cherished state ideals
is a far cry from ordinary workplace management concerns, much
less a legitimate pedagogical interest. What’s more, even if many
of these ideas are dead wrong, they are not at all irrelevant, at least
in certain coursework. Florida itself seems to recognize this fact by
allowing discussion of the viewpoints, even while barring their
endorsement.
The State does assert one other justification for its law—an
“interest in preventing invidious racial discrimination in public
education.” But as we have already held when considering the
companion provision limiting private employers’ speech, the Act
does no such thing. Discrimination “generally means to treat
differently,” and “the Act does not regulate differential
treatment”—it restricts speech that State political authorities find
objectionable. Honeyfund, 94 F.4th at 1281 (quotation omitted).
Preventing professors from positively discussing a viewpoint is not
the same as regulating discrimination, which the State can certainly
do. A professor who espouses a particular idea does not stand in
the same shoes as one who ridicules a student, threatens a student,
or targets a student. The Act does not limit (and does not purport
to limit) actual discrimination of any kind. It instead assumes that
mere exposure to what the State views as the wrong viewpoint is
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22-13992 Opinion of the Court 41
itself a serious harm. But a difference of opinion is not
discrimination.13
Under the First Amendment, “Florida has no compelling
interest in creating a per se rule that some speech, regardless of its
context or the effect it has on the listener, is offensive and
discriminatory. It is firmly settled that under our Constitution the
public expression of ideas may not be prohibited merely because
the ideas are themselves offensive to some of their hearers.” Id.
(quotation omitted).
Even outside the academic context, higher standards are
necessary to vindicate broad, prophylactic restrictions on the
speech of a large number of employees than to justify case-by-case
punishment of an errant employee. See Nat’l Treasury Emps. Union,
513 U.S. at 466–68. Here, the law simply suppresses certain
viewpoints that Florida disfavors.
At a minimum, then, the State’s interests as an employer do
not line up with the priorities that we have recognized in Bishop
and other early cases in the educational context. Nor, as discussed
earlier, are they similar to those that the Supreme Court approved
13 We are sincerely confused by the dissent’s insistence that Bob Jones University
v. United States has any bearing on this case. 461 U.S. 574 (1983); see Dissenting
Op. at 2–3, 25–26. Bob Jones upheld an Internal Revenue Service ruling
revoking the tax-exempt status of private universities that refused to admit
applicants who were part of an interracial marriage or spoke in support of
interracial marriage. 461 U.S. at 577–82. That case was not about free speech,
and this case is not about racial discrimination.
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42 Opinion of the Court 22-13992
in the Pickering line of cases. And at their maximum, the State’s
interests run headlong into bedrock First Amendment principles.
The Supreme Court said it best: “If there is any fixed star in our
constitutional constellation, it is that no official, high or petty, can
prescribe what shall be orthodox in politics, nationalism, religion,
or other matters of opinion.” West Virginia State Bd. of Educ. v.
Barnette, 319 U.S. 624, 642 (1943).
Third, we consider what we called in Bishop the “strong
predilection for academic freedom.” 14 Bishop, 926 F.2d at 1075. As
we noted there (and here), scholarly freedom is “abundant[ly]”
celebrated in First Amendment caselaw, and the “vigilant
protection of constitutional freedoms is nowhere more vital than
in the community of American schools.” Id. (quoting Keyishian,
385 U.S. at 603). Indeed, our “Nation’s future depends upon
leaders trained through wide exposure to that robust exchange of
ideas which discovers truth out of a multitude of tongues, rather
14 The dissent transforms Bishop’s fact-intensive conclusion (that one
university’s curricular authority to require one professor to avoid religious
coercion outweighed that professor’s asserted interest in academic freedom)
into a far grander one: that Bishop has already done the work for us, weighing
state control against academic freedom, and “resolv[ing] that balance in favor
of the State’s authority within the classroom.” See Dissenting Op. at 22 & n.7.
No. As we have already explained, Bishop itself directs a context-specific
inquiry, and does not remotely offer a blanket rule ranking academic freedom
below any state interest. See 926 F.2d at 1074–75. And again, Bishop offers no
holding about a state’s authority to control curriculum; it protects a university’s
authority to control curriculum. See id. at 1078.
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22-13992 Opinion of the Court 43
than through any kind of authoritative selection.” Id. (alteration
adopted) (quoting Keyishian, 385 U.S. at 603).
Again, Bishop proves the point. True, that court also noted
that “pronouncements about academic freedom” in other contexts
“cannot be extrapolated to deny schools command of their own
courses.” Id. To that end, we nod our heads along with Bishop as
it recognizes that “academic freedom thrives not only on the
independent and uninhibited exchange of ideas among teachers
and students, but also, and somewhat inconsistently, on
autonomous decisionmaking by the academy itself.” Id. (alteration
adopted and quotation omitted). Florida’s Act, in contrast,
removes any decisionmaking by the academy about the topics it
bars. And the State’s rationale is not limited—it would allow the
legislature to block any speech on any topic for any reason.
Even in other contexts where the government has greater
latitude to impose constraints on speech, it still “may not aim at the
suppression of dangerous ideas.” Nat’l Endowment for Arts v. Finley,
524 U.S. 569, 587 (1998) (alteration adopted and quotation
omitted). In the university context, then, where the dangers of
censorship are heightened, a state prohibiting disfavored messages
inspires even more skepticism. The broader the restriction, and the
more people whose speech it limits, the more scrutiny it must
receive. See Nat’l Treasury Emps. Union, 513 U.S. at 466–68. Caseby-case restrictions on a single problematic professor’s teaching are
the bread and butter of First Amendment cases affirming the
curricular authority of universities. But Florida tries to stretch
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44 Opinion of the Court 22-13992
those precedents to fit an entirely new context: not a university
disciplining one professor for discrete misconduct, but a state
government barring all professors from sharing politically
disfavored ideas.
D.
We acknowledge that the Bishop factors can sometimes
point in different directions. In Bishop itself they did—the
professor’s control over his own in-class speech was set against his
university’s decisions about the overall content of that class. But
here, we think they point the same way—toward free speech.
The distinctions between this case and Bishop are
fundamental. For starters, these statutory speech restrictions are
not the considered academic judgment of a university, and these
disagreements are not between a university and its professor. That
is not to say that states cannot play an important or even decisive
role, but it is far less likely that the more workaday employment
and curricular concerns that can survive First Amendment review
will capture the imagination of legislative majorities. What’s more,
the restriction in Bishop was directed to one professor, about one
class, and involved one type of objection to his teaching. See Bishop,
926 F.2d at 1068–70. The Individual Freedom Act, in contrast,
applies to all state professors, in every class, and targets eight broad
and disfavored topics. See Fla. Stat. § 1000.05(4). It is a naked
prohibition on disfavored speech, not a limited restraint on one
professor’s religious views. And its tiered enforcement scheme
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22-13992 Opinion of the Court 45
applies not only to professors, but also to universities, hitting both
with dramatic financial consequences for noncompliance.
Normally, “[d]iscrimination against speech because of its
message is presumed to be unconstitutional.” Rosenberger, 515 U.S.
at 828. And we have previously “emphasized that the dangers of
viewpoint discrimination are heightened in the university setting.”
Speech First, Inc. v. Cartwright, 32 F.4th 1110, 1127 n.6 (11th Cir.
2022) (quotation omitted). As Florida itself recognizes, at least in
other statutes, universities are where new ideas germinate, where
solutions take shape, and where orthodoxy falls. Or, they should
be—sometimes groupthink or even more sinister patterns take
hold. But make no mistake, “standardization of ideas either by
legislatures, courts, or dominant political or community groups” is
not the answer. Terminiello v. Chicago, 337 U.S. 1, 4–5 (1949).
Instead, “for the State in the person of school officials to justify
prohibition of a particular expression of opinion, it must be able to
show that its action was caused by something more than a mere
desire to avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint.” Tinker, 393 U.S. at 509.
Florida has made no such showing.
This Act’s effect on academic freedom is compounded by its
lack of clear definitions. The uncertainties about the Act’s
coverage are yet another difference between the restrictions placed
on Bishop and those sought here. “Broad prophylactic rules in the
area of free expression are suspect. Precision of regulation must be
the touchstone in an area so closely touching our most precious
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46 Opinion of the Court 22-13992
freedoms.” NAACP v. Button, 371 U.S. 415, 438 (1963) (citations
omitted). The Act’s language is full of imprecision, which leaves
us with some idea of the viewpoints that Florida targets, but little
information about the boundaries of those concepts or what it
would take to “endorse” them. For example, when a professor
assigns a reading for class that promotes one of the prohibited
concepts, is that professor subjecting the student to “instruction
that espouses, promotes, advances, inculcates, or compels such
student . . . to believe” in the concept? What about when a
professor hosts a guest speaker who presents only one side of the
debate? 15 Or how about a professor who teaches about one of the
forbidden concepts using the Socratic method? Would those
discussions be “objective”? The parties disagree on every front.16
And that is to say nothing of the lack of clear language in the
individual concepts’ definitions. Just to name one, what does
“morally superior” encompass, and against whose perspective is it
measured?
15 The defendants tell us that a professor would not violate the Act by hosting
a guest speaker who promotes one of the eight concepts unless that professor
endorses the guest’s speech. This exacerbates rather than solves the problem,
layering imprecision on imprecision.
16 Under Florida’s theory of the case, the State’s authority over professors’
scholarship would likewise be unlimited—after all, research is part of what
they are hired and paid to do. Bishop rejected precisely this argument. See 926
F.2d at 1076–77 (government may not regulate what professor does as a
“researcher”).
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22-13992 Opinion of the Court 47
Florida, unlike the defendants in Bishop, has not offered us a
narrow reading of the speech restrictions it seeks to impose.
Instead, it offers the broadest possible rule: because the
government pays these professors’ salaries, it can restrict their
speech however it wishes. Moderation is said to be found in the
fact that professors will have the opportunity to clean up their
courses after shortcomings are identified. What a remarkable
suggestion—that we should bless an unclear, viewpoint-based
speech ban simply because the government says it will refrain from
penalizing the speaker until after it gives a warning. That is a dark
kind of mercy.
In the end, the State’s interests are insufficient to support the
Act’s restrictions. Whatever the boundaries of the government’s
control over in-class, curricular speech, this set of restrictions
exceeds them. “If there is a bedrock principle underlying the First
Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea itself
offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989)
(collecting cases). Try as it might, the State of Florida may not
“prescribe what shall be orthodox in politics, nationalism, religion,
or other matters of opinion.” Barnette, 319 U.S. at 642. The “First
Amendment rests instead on a simple truth: The people lose
whenever the government transforms prevailing opinion into
enforced conformity.” Chiles, 146 S. Ct. at 1029 (alteration adopted
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48 Opinion of the Court 22-13992
and quotation omitted). The Act violates the First Amendment’s
guarantee of freedom of speech.17
* * *
A few words about the dissent. Our decision today does not
authorize “viewpoint discrimination under exceptions created,
interpreted, and enforced by the judiciary.” Dissenting Op. at 32.
To the contrary, it simply reserves space for the same kinds of
curricular and disciplinary decisions that universities have always
made. Nor do we make any judgment about the value of the ideas
Florida seeks to ban—it is not our place to do so. “As in every case,
our single duty is to determine the issues presented in accord with
the Constitution and the law.” Coolidge v. New Hampshire, 403 U.S.
443, 445 (1971); see also Biden v. Nebraska, 600 U.S. 477, 506–07
(2023). For its part, the dissent does not so much as attempt to
reconcile its view with the Supreme Court’s repeated invocations
of academic freedom. Perhaps it finds them inconvenient, or even
incorrect (though it offers no analysis of why that would be so).
But the only way to uphold this law is to disregard those
precedents, and as lower court judges we do not have that option.
The dissent also attempts to clothe itself in originalism
without offering any originalist inquiry. For one, it makes a show
of the lack of pre-twentieth-century discussion of “academic
17 Because we conclude that the Act’s speech restrictions directly violate the
First Amendment, we need not address the plaintiffs’ separate vagueness and
overbreadth arguments.
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22-13992 Opinion of the Court 49
freedom,” but that is easy enough to explain—if one considers the
matter. See Dissenting Op. at 9–10. To start, the First Amendment
was not incorporated against the States until 1868, and the federal
government was not in the business of chartering universities, so
there was no reason to consider its specific impact on state
universities until much later.
Jurisprudential factors were at play, too. The First
Amendment had “no general bite in 1900 because of the American
judiciary’s extremely cramped view of the amendment’s scope.”
William W. Van Alstyne, Academic Freedom and the First Amendment
in the Supreme Court of the United States: An Unhurried Historical
Review, 53 Law. & Contemp. Probs. 79, 82 (1990). That was not,
the reader will note, an originalist era. On top of that, the Supreme
Court’s view of public employment at the time left no room at all
for freedom of speech—a government employer had total control
over an employee’s speech, both in and out of the workplace. Id.
at 83–84. Then-Judge Holmes offered the most memorable (if
troubling) description of this view: “The petitioner may have a
constitutional right to talk politics, but he has no constitutional
right to be a policeman. . . . The servant cannot complain, as he
takes the employment on the terms which are offered him.”
McAuliffe v. Mayor of New Bedford, 29 N.E. 517, 517–18 (Mass. 1892).
Though the dissent endorses this long-retired view of public
employee speech, its place in the law is thankfully gone.
Even considering all this, it is clear that the concept of
academic freedom, if not the term, was well recognized early in
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50 Opinion of the Court 22-13992
our Nation’s history. One of the very scholars the dissent cites
explains that “[p]ractical autonomy from government control has
characterized American colleges and universities . . . at least since
disestablishment of the state churches at the beginning of the
nineteenth century.” J. Peter Byrne, Academic Freedom: A “Special
Concern of the First Amendment,” 99 Yale L.J. 251, 321 (1989). Indeed,
early sources reflect a respect for keeping politics out of teaching
and scholarship. When the New Hampshire legislature tried to
take over Dartmouth College, Daniel Webster persuaded the
Supreme Court to side with the College. In what turned out to be
the most famous oral argument in this Nation’s history, Webster
stressed that it would be “a dangerous, a most dangerous,
experiment, to hold these institutions subject to the rise and fall of
popular parties, and the fluctuations of political opinions.” See Trs.
of Dartmouth Coll. v. Woodward, 17 U.S. 518, 599 (1819). So too for
freedom of inquiry in the university setting. Around the same
time, when planning for the University of Virginia, Thomas
Jefferson wrote, “this institution will be based on the illimitable
freedom of the human mind. For here we are not afraid to follow
truth wherever it may lead, nor to tolerate any error so long as
reason is left free to combat it.” Letter from Thomas Jefferson to
William Roscoe (Dec. 27, 1820), in 16 The Papers of Thomas Jefferson:
Retirement Series 499 (J. Jefferson Looney et al. eds., 2019).
We share the dissent’s view that the federal courts do not
police curriculum. But we do police the First Amendment. And if
the history of that Amendment tells us anything, it is that the
government cannot forbid what it perceives as heresy. As between
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22-13992 Opinion of the Court 51
allowing a state to tamp down discussion of disfavored viewpoints
on the one hand, and allowing free debate about those topics on
the other, which do we think is more consistent with the founding
generation’s commitment to the freedom of speech? The question
answers itself.
IV.
“Because the plaintiffs have shown a likelihood of success on
the merits, the remaining requirements necessarily follow.”
Honeyfund, 94 F.4th at 1283. The Act is “an unconstitutional direct
penalization of protected speech,” so “continued enforcement, for
even minimal periods of time, constitutes a per se irreparable
injury.” Otto, 981 F.3d at 870 (quotation omitted). And because
neither the State nor the public has a legitimate interest in the
enforcement of an unconstitutional law, the third and fourth
requirements are met. KH Outdoor, LLC v. City of Trussville, 458 F.3d
1261, 1272 (11th Cir. 2006). The plaintiffs have therefore satisfied
all four requirements for a preliminary injunction.
* * *
Florida seeks to strip public university professors—and by
extension their students—of the ability to fully engage with ideas
that are, for better or for worse, very popular in some academic
circles. The State asks us to consider its rules a means of targeting
discrimination. But hearing an idea you disagree with is not
discrimination; it is an opportunity to come up with a better idea,
or maybe even change your mind.
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52 Opinion of the Court 22-13992
This is not the first time that the State has tried to lead us
down the garden path about the purpose and effect of a law
banning speech. We have once before rejected its reframing of the
Individual Freedom Act’s proscriptions, and we do so again here.
See Honeyfund, 94 F.4th at 1283. Section 1000.05(4) cannot be
constitutionally applied to these plaintiffs. The Act strikes at the
core of the First Amendment’s commitment to open dialogue,
transforming the classroom into a place where a “deadening
dogma takes the place of free inquiry.” Adler v. Bd. of Educ., 342 U.S.
485, 510 (1952) (Douglas, J., dissenting), overruled by Keyishian, 385
U.S. 589.
The proper role of universities in our society has long been
a topic of fierce debate. Universities and professors do not always
get it right. Neither does the government. But as we said not long
ago, “[i]ntellectual and cultural tumult do not last forever, and our
Constitution is unique in its commitment to letting the people,
rather than the government, find the right equilibrium.”
Honeyfund, 94 F.4th at 1283. We AFFIRM the district court’s
preliminary injunction.
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22-13992 LAGOA, J., Dissenting 1
LAGOA, Circuit Judge, Dissenting:
Our task here is not to decide what the State should do, but
what it may do.
The professor-plaintiffs are state employees, and the speech
at issue here occurs during their state-sponsored instruction in a
course taken for credit by students enrolled in the State’s public
universities. According to the majority, a state can restrict a professor’s speech so long as the restriction is “reasonable and related
to legitimate pedagogical concerns.” Maj. Op. at 37. The majority
also tells us that the State may legitimately prohibit a professor
from discussing “irrelevant” material, “professionally [in]competent” material, “conspiracy theories, and the like.” Id. at 39. The
majority reassures that these are “well-understood parameters.”
Id. But in practice, these “parameters” install a judge-made test that
is unworkable and whose “policy-driven approach to the Constitution,” McKee v. Cosby, 586 U.S. 1172, 1173 (2019) (Thomas, J., concurring in the denial of certiorari), reduces the First Amendment to
a reflection of judicial preference, regardless of the State’s interests
in its classroom instruction.
The State’s authority in this context is not the nullity the majority suggests. We have repeatedly decided cases of this kind, and
from those decisions emerges a consistent principle: the State’s authority is at its zenith in its public classrooms, including the classrooms in its public universities. See Bishop v. Aronov, 926 F.2d 1066
(11th Cir. 1991); Ferguson v. Thomas, 430 F.2d 852, 859 (5th Cir.
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2 LAGOA, J., Dissenting 22-13992
1970); 1 Megill v. Bd. of Regents of State of Fla., 541 F.2d 1073, 1081–82
(5th Cir. 1976); Pred v. Bd. of Pub. Instruction of Dade Cnty., Fla., 415
F.2d 851, 859 (5th Cir. 1969); Duke v. N. Texas State Univ., 469 F.2d
829, 835–40 (5th Cir. 1972). And “a prior panel’s holding is binding
on all subsequent panels unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this
court sitting en banc.” United States v. Archer, 531 F.3d 1347, 1352
(11th Cir. 2008).
A public university’s classroom “is not an open forum.”
Bishop, 926 F.2d at 1071. During instructional periods, “the University’s classrooms are reserved for other intended purposes,”
namely “the teaching of a particular university course for credit.”
Id. (internal quotation marks omitted). Our precedent is clear that
states retain authority to restrict a professor’s “viewpoint” in a public classroom, even if the professor’s viewpoint “represents his professional opinion.” Id. at 1076–77.
To be clear, the First Amendment protects all viewpoints in
the public square, whether they are conventional or controversial.
But it does not compel all viewpoints to be worthy of state-sponsored endorsement. Indeed, in a case involving a private religious
university, the Supreme Court held that the government has a
“compelling” and “overriding interest in eradicating racial discrimination in education.” Bob Jones Univ. v. United States, 461 U.S. 574,
1 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981), we adopted as
binding precedent all decisions of the former Fifth Circuit rendered prior to
October 1, 1981. Id. at 1209.
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22-13992 LAGOA, J., Dissenting 3
604 (1983). Florida asserts the same interest here. And if the government has a compelling interest in eradicating racial discrimination in a private university, how much greater is Florida’s interest
in eradicating what it deems to be racial discrimination in its own
classrooms? We need not agree or disagree with Florida that the
viewpoints at issue here constitute racial discrimination; we need
only acknowledge that the State is allowed to decide what is endorsed by its professors in its own classrooms.
Because Plaintiffs have not shown a likelihood of success on
the merits that the Individual Freedom Act (“IFA”), Fla. Stat.
§ 1000.05(4)(a), is unconstitutional, I respectfully dissent.
I.
The IFA makes it an act of discrimination “on the basis of
race, color, national origin, or sex” to subject any student or employee to “training” or “instruction” that “espouses, promotes, advances, inculcates, or compels” belief in any of eight concepts. Fla.
Stat. § 1000.05(4)(a). Those concepts are:
1. Members of one race, color, national origin, or sex are morally superior to members of another race, color, national
origin, or sex.
2. A person, by virtue of his or her race, color, national origin,
or sex, is inherently racist, sexist, or oppressive, whether
consciously or unconsciously.
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4 LAGOA, J., Dissenting 22-13992
3. A person’s moral character or status as either privileged or
oppressed is necessarily determined by his or her race, color,
national origin, or sex.
4. Members of one race, color, national origin, or sex cannot
and should not attempt to treat others without respect to
race, color, national origin, or sex.
5. A person, by virtue of his or her race, color, national origin,
or sex, 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, national origin, or sex.
6. A person, by virtue of his or her race, color, national origin,
or sex, should be discriminated against or receive adverse
treatment to achieve diversity, equity, or inclusion.
7. A person, by virtue of his or her race, color, sex, or national
origin, bears personal responsibility for and must feel guilt,
anguish, or other forms of psychological distress because of
actions, in which the person played no part, committed in
the past by other members of the same race, color, national
origin, or sex.
8. Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color,
national origin, or sex to oppress members of another race,
color, national origin, or sex.
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22-13992 LAGOA, J., Dissenting 5
Id. § (4)(a)(1)–(8).
The IFA expressly permits a professor to assign texts containing such concepts to his students, discuss their contents in the
classroom, and even dissect their underlying ideologies. See id.
§ (4)(b) (providing an exception for “discussion of the concepts
listed,” provided that “such training or instruction is given in an
objective manner without endorsement” of those concepts) (emphases
added). Put simply, the statute distinguishes between the discussion and debate of discriminatory ideologies, which is permissible,
and their endorsement or promotion by the professor, which is
not.
Plaintiffs—two students, several professors, and a student
organization at six of Florida’s public universities—contend that
these nondiscrimination provisions violate the First Amendment. 2
2 As outlined by the district court, Plaintiff Professor LeRoy Pernell intends to
teach his students that “racism is embedded in the criminal justice system.”
Pernell v. Florida Bd. of Governors of State Univ. Sys., 641 F. Supp. 3d 1218, 1246
(N.D. Fla. 2022). Plaintiff Dana Thompson Dorsey “typically assigns her own
articles that discuss white privilege and critique the concept of colorblindness.” Id. Plaintiff Sharon Austin “endorses critical race theory and assigns
reading materials that advocate for affirmative action.” Id. at 1246–47. Plaintiff Shelley Park “teaches that merit, objectivity, and colorblindness function
to solidify systems of oppression as foundational truths rather than academic
theories.” Id. at 1247. Plaintiff Jennifer Sandoval’s seminar “includes sections
on ‘whiteness’ and race discrimination in academia.” Id. Plaintiff Russell Almond asserts that “the IFA impacts his ability to instruct on institutionalized
racism.” Id. Plaintiff Adriana Novoa alleges that several of her course materials treat “the existence of racial privilege as a given.” Id. at 1259.
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6 LAGOA, J., Dissenting 22-13992
Before turning to the merits, I clarify the nature of Plaintiffs’
challenges. The majority assumes that “[t]he plaintiffs bring as-applied challenges to the Act.” Maj. Op. at 10 n.6 (emphasis added).
That view is understandable; this doctrine is not always a model of
clarity. The Supreme Court has recognized that “the distinction
between facial and as-applied challenges is not so well defined,” see
Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 331 (2010), and
that some claims “obviously ha[ve] characteristics of both.” John
Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010). This case is a good example.
Here, “[t]he claim is ‘as applied’ in the sense that it does not
seek to strike the [IFA] in all its applications, but only to the extent
it covers [public university professors]. The claim is ‘facial’ in that
it is not limited to plaintiffs’ particular case, but challenges application of the law more broadly to all [public university professors].”
Reed, 561 U.S. at 194 (emphases added). In other words, the claim,
and the injunction entered below, “reach beyond the particular circumstances of these plaintiffs,” id., barring the Board of Governors
“from enforcing the IFA and Regulation 10.005 against any state
university.” Pernell v. Florida Bd. of Governors of State Univ. Sys., 641
F. Supp. 3d 1218, 1288 (N.D. Fla. 2022). As Reed explains, when a
claim reaches that far, it “must therefore satisfy our standards for a
facial challenge to the extent of that reach.” 561 U.S. at 194.
The district court understood as much. It “agree[d] that
Plaintiffs bring facial challenges in both their First Amendment
viewpoint discrimination and Fourteenth Amendment vagueness
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22-13992 LAGOA, J., Dissenting 7
claims[,]” and issued “facial relief ” accordingly. Pernell, 641 F. Supp.
3d at 1287–88. In short, “[Plaintiffs] chose to litigate these cases as
facial challenges, and that decision comes at a cost.” Moody v.
NetChoice, LLC, 603 U.S. 707, 723 (2024).
For facial challenges, Plaintiffs must show that the IFA “prohibits a substantial amount of protected speech relative to its
plainly legitimate sweep.” Id. (quoting United States v. Hansen, 599
U.S. 762, 770 (2023)). Admittedly, because the majority considers
the IFA to be impermissibly “viewpoint discriminatory” under the
First Amendment, it is unclear whether this analysis is required in
the context of public university professors. See Iancu v. Brunetti, 588
U.S. 388, 398–99 (2019). Even so, Moody’s threshold directive is
clear: “Before a court can do anything else with these facial challenges,
it must address that set of issues—in short, must ‘determine what
[the law] covers.’” 603 U.S. at 725 (quoting Hansen, 599 U.S. at 770)
(emphasis added). That is no less true “in the First Amendment
context[.]” Id. at 744.
The majority does not undertake that threshold task. Instead, it asserts that the IFA provides “little information about the
boundaries of those concepts or what it would take to ‘endorse’
them” and then poses a series of unanswered hypotheticals. See
Maj. Op. at 46 & n.16. But it does so without first identifying the
statute’s scope, an error the Supreme Court has already admonished this Court for doing once before. Moody, 603 U.S. at
726 (“Neither the Eleventh Circuit nor the Fifth Circuit performed
the facial analysis in the way just described.”). Regardless of
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8 LAGOA, J., Dissenting 22-13992
whether the facial analysis described in Moody is strictly required to
establish viewpoint discrimination, “[a] court cannot invalidate the
challenged laws if it has to speculate about their applications.” Id.
at 790 (Alito, J., concurring in the judgment). We should be careful
not to repeat that mistake here. 3
All in all, the district court granted Plaintiffs a sweeping preliminary injunction against the State, an “extraordinary” remedy
that is “never awarded as of right.” Starbucks Corp. v. McKinney, 602
U.S. 339, 345 (2024) (internal quotation marks omitted). The
3 Iancu explained that, once a statute is “interpreted fairly” and found unconstitutionally viewpoint discriminatory on its face, a court need not save it by
sorting applications. 588 U.S. at 394–99. But that rule presupposes a facial
finding of unconstitutionality that is not present here. If it were, the majority
would have no reason to pose those hypotheticals at all. Indeed, even accepting the majority’s reading of Bishop, the majority describes that inquiry as
“fact-intensive,” Maj. Op. at 42 n.14, while affirming categorical relief. Its proposed “irrelevant”-instruction carveout shows why that matters. Id. at 38–39.
An electrical-engineering professor has no apparent reason in his ordinary
classroom instruction to endorse race-based discrimination because of “past
[acts] by other members of the same race.” Fla. Stat. § 1000.05(4)(a)(5). Yet
he is swept into the injunction all the same. Because the IFA’s speech restrictions do not violate the First Amendment, the majority likewise “errs in
upholding the scope of the District Court’s injunction.” HM Fla.-ORL, LLC v.
Governor of Fla., 137 F.4th 1207, 1266 (11th Cir. 2025) (Tjoflat, J., dissenting),
reh’g en banc granted, opinion vacated sub nom. HM Fla.-ORL, LLC v. Sec’y of Fla.
Dep’t of Bus. & Pro. Regul., 160 F.4th 1282 (11th Cir. Dec. 1, 2025). As Judge
Tjoflat cautioned, facial challenges “strain the limits of the federal courts’ constitutional authority to decide only actual ‘Cases’ and ‘Controversies.’” Id.
(quoting U.S. Const. art. III, § 2).
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22-13992 LAGOA, J., Dissenting 9
majority labors to affirm that result. But the law in this Circuit is
neither novel nor uncertain. It simply points the other way.
II.
The First Amendment provides, in relevant part, “Congress
shall make no law . . . abridging the freedom of speech, or of the
press.” U.S. Const. amend. I. And there is no serious dispute that,
before the twentieth century, no one believed that the First
Amendment enshrined a professorial right to freedom of speech in
the classroom.
Indeed, “[t]here were no American legal precedents for academic freedom prior to its acceptance by the Supreme Court into
the pantheon of First Amendment rights in 1957. Neither the common law nor any federal or state statute granted the university professor any more security than that granted in her contract of employment.” J. Peter Byrne, Academic Freedom: A “Special Concern of
the First Amendment,” 99 Yale L.J. 251, 256 (1989); Walter P. Metzger, Profession and Constitution: Two Definitions of Academic Freedom
in America, 66 Tex. L. Rev. 1265, 1285 (1988) (“Before the middle of
[the twentieth] century, no American court had ruled that any provision of the federal constitution protected academic freedom.”);
Robert C. Post, Academic Freedom and Legal Scholarship, 64 J. Legal
Educ. 530, 530, 533 (2015) (“Academic freedom did not always exist
in the United States. It emerged during the first few decades of the
twentieth century. Its birth was a result of a transformation of the
mission of higher education in America.”); William W. Van
Alstyne, Academic Freedom and the First Amendment in the Supreme
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10 LAGOA, J., Dissenting 22-13992
Court of the United States: An Unhurried Historical Review, 53-Sum. L.
& Contemp. Probs. 79, 82 (1990) (“At the turn of the twentieth century, the first amendment was virtually in a state of pre-history so
far as academic freedom was concerned.”).
Before the Civil War, “the concept of academic freedom was
literally inconceivable.” Byrne, supra, at 269. The objective of university education was to train students to have the character and
“mental discipline” to one day become lawyers, doctors, or members of the clergy. Id. And for better or worse, “no one” understood the role of a professor to include “producing scholarship” or
“criticizing prevailing dogma.” Id. Instead, “[f]aculty performed
essentially fixed if learned operations within a traditional curriculum under the sanction of established truth.” Id.
Academic freedom was first argued for—as a policy ideal,
not as a constitutional right—at the turn of the twentieth century.
This development was triggered by Americans who studied at German universities—where professors enjoyed Lehrfreiheit (“teaching
freedom”) and students enjoyed Lernfreiheit (“learning freedom”).
Metzger, supra, at 1269–70. As American students returned home,
they brought the concept of academic freedom with them. Id. In
1915, the American Association of University Professors (“AAUP”)
released a report containing the first “authoritative definition of academic freedom” that endorsed the concept of Lehrfreiheit, though
it was “couched in American terms.” Id. at 1267–85; Byrne, supra,
at 276–78; Urofsky v. Gilmore, 216 F.3d 401, 410 (4th Cir. 2000) (citing
Metzger, supra, at 1267–85). But “[s]ignificantly, the AAUP
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conceived academic freedom as a professional norm, not a legal
one: The AAUP justified academic freedom on the basis of its social
utility as a means of advancing the search for truth, rather than its
status as a manifestation of First Amendment rights.” Urofsky, 216
F.3d at 411 (citing Richard Hofstadter & Walter P. Metzger, The
Development of Academic Freedom in the United States 398–400 (1955);
Byrne, supra, at 277–78); see also Byrne, supra, at 256 (“[A]cademic
freedom was a matter of professional ideology and custom.”). And
as a 1937 comment in the Yale Law Journal recognized, “[a]cademic freedom is not . . . a constitutional privilege, or even a legal
term defined by a history of judicial usage and separately listed in
the digests and Words and Phrases.” Comment, Academic Freedom
and the Law, 46 Yale L.J. 670, 671 (1937).
Twenty years later, a plurality of the Supreme Court alluded—for the first time—to the “essentiality of freedom in the
community of American universities.” Sweezy v. State of N.H. by
Wyman, 354 U.S. 234, 250 (1957) (plurality opinion). Later cases,
such as Keyishian v. Bd. of Regents, 385 U.S. 589 (1967), also acclaim
academic freedom. But these cases were the first of their kind. See
Byrne, supra, at 256. A 1961 article frankly admits:
It must be added, however, that while these statements are eloquent and incisive defenses of academic
freedom, they were all made in the past ten years, and
a search of the 363 volumes of the United States Supreme Court Reports will not yield much more on
this subject, if anything at all. While there has been
no dearth of litigation in the state appellate courts on
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12 LAGOA, J., Dissenting 22-13992
subjects involving teachers and education, a reading
of hundreds of cases has yielded very few opinions
which pay any attention to the subject of academic
freedom, and, much less, show any genuine appreciation of either its meaning or importance.
David Fellman, Academic Freedom in American Law, 1961 Wis. L.
Rev. 3, 17 (1961).
To this day, “the Supreme Court has never set aside a state
regulation on the basis that it infringed a First Amendment right to
academic freedom.” Urofsky, 216 F.3d at 412. And in Bishop, we
discussed the “strong predilection” in favor of “academic freedom
as an adjunct of the free speech rights of the First Amendment,”
but held that “academic freedom” is nonetheless not “an independent First Amendment right.” 926 F.2d at 1075. We noted the
“abundant cases which acclaim academic freedom,” and identified
Keyishian, 385 U.S. 589, as “the most applicable” to the context of a
public university’s classroom. Id. But we understood Keyishian as
dealing “with that brand of regulation most offensive to a free society: loyalty oaths.” Id. We clarified that Keyishian’s “pronouncements about academic freedom in that context” “cannot be extrapolated to deny” public universities “command of their own
courses.” Id.
Even so, the majority’s opinion offers no account of how the
First Amendment’s text was originally understood. See Greater Birmingham Ministries v. Sec’y of State for Alabama, 105 F.4th 1324, 1332
(11th Cir. 2024) (affirming the “fundamental canon” that words in
a legal provision take their “ordinary meaning at the time” of their
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22-13992 LAGOA, J., Dissenting 13
enactment) (quoting New Prime Inc. v. Oliveira, 586 U.S. 105, 113
(2019)); McKee, 586 U.S. at 1173 (Thomas, J., concurring in the denial of certiorari) (“We should not continue to reflexively apply this
policy-driven approach to the Constitution. Instead, we should
carefully examine the original meaning of the First and Fourteenth
Amendments.”). For that matter, the majority offers only a partial
account of how the First Amendment has been understood—relative to the college classroom—for most of American history.
III.
Finding little support in historical understandings of the First
Amendment in this context, the majority turns to precedent and
concludes that we confront “an unprecedented First Amendment
intersection.” Maj. Op. at 11–12. But we do not.
To provide some background, we usually analyze a public
employee’s First Amendment claims under the Pickering-Garcetti
framework. For most public employees, the framework proceeds
in two steps. See Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 527–
28 (2022). At the first step, we analyze whether a public employee
speaks “pursuant to their official duties.” Garcetti v. Ceballos, 547
U.S. 410, 421 (2006). If so, the First Amendment “does not insulate
their communications.” Id. But if a public employee instead speaks
in their capacity as a citizen, we proceed to the Pickering balancing
test at step two. See Kennedy, 597 U.S. at 527–28 (citing Pickering v.
Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563
(1968)). At the second step, we analyze the employee’s claim by
balancing the “interests” of the employee “as a citizen, in
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14 LAGOA, J., Dissenting 22-13992
commenting upon matters of public concern” against “the interest
of the State, as an employer.” Pickering, 391 U.S. at 568.
In Garcetti, however, the Supreme Court reserved the question of whether the Garcetti test applies to the “scholarship or teaching” of professors at public universities. 547 U.S. at 425. 4 And five
other circuits have declined to apply Garcetti to a professor’s classroom speech. See Kilborn v. Amiridis, 131 F.4th 550, 557–58 (7th Cir.
2025); Heim v. Daniel, 81 F.4th 212, 224–28 (2d Cir. 2023); Adams v.
Trs. of the Univ. of North Carolina-Wilmington, 640 F.3d 550, 562–64
(4th Cir. 2011); Meriwether v. Hartop, 992 F.3d 492, 504–06 (6th Cir.
2021); Demers v. Austin, 746 F.3d 402, 406 (9th Cir. 2014).
We need not resolve that question here because, regardless
of Garcetti’s application, Florida still prevails under the Pickering test
at step two. 5 See Kennedy, 597 U.S. at 527–28; see also Heim, 81 F.4th
4 The district court’s reading of Garcetti reflects its view that the Supreme
Court closed the door on applying the government speech doctrine to public
university professors. See Pernell, 641 F. Supp. 3d at 1240 (“Refusing to take
‘no’ for an answer, Defendants assert this Court must apply Garcetti’s reasoning to the professor speech at issue here, notwithstanding the Supreme Court’s
explicit refusal to do so.”) (emphasis added). But that characterization is mistaken. Rather than “refusing” to extend its reasoning to professors’ speech,
the Supreme Court simply declined to address an issue not before it. See Garcetti, 547 U.S. at 425 (“We need not, and for that reason do not, decide whether the
analysis we conduct today would apply in the same manner to a case involving
speech related to scholarship or teaching.”) (emphasis added). At best, the application of Garcetti to state university professors is an open question.
5 In light of Pickering and cases like Bishop, this case does not require us to decide whether Garcetti should be extended to university professors. The majority tells us that Garcetti does not apply in this context, but because resolution USCA11 Case: 22-13992 Document: 156-1 Date Filed: 07/07/2026 Page: 67 of 85
22-13992 LAGOA, J., Dissenting 15
at 228–34 (turning to Pickering after holding that Garcetti is inapplicable); Adams, 640 F.3d at 564–65 (same); Meriwether, 992 F.3d at
507–12 (same); Demers, 746 F.3d at 412 (same). And here, our own
binding precedent leaves no room for the majority’s result. See
Bishop, 926 F.2d at 1074–77; Ferguson, 430 F.2d at 859; Megill, 541
F.2d at 1081–82; Pred, 415 F.2d at 859; see also Duke, 469 F.2d at 835–
40.
The IFA concerns classroom instruction, allowing professors to discuss discriminatory concepts but not endorse or compel
them. See Fla. Stat. §§ 1000.05(2), (4). And our precedent has already struck this balance in the classroom, finding that the state’s
interest as an employer outweighs a professor’s interest in teaching
his personal views.
Ferguson is illustrative. There, we recognized that although
a state institution normally has “no right to control” a professor’s
speech, it does “have a right to terminate his employment as a classroom instructor at the point where the exercise of his constitutional privileges clearly over-balanced his usefulness as an instructor.” 430 F.2d at 859; see id. at 860 (Thornberry, J., dissenting) (“The
majority recognizes that the State of Texas could terminate Dr. Ferguson’s employment…”) (emphasis added).
In Megill, we likewise held that the Florida Board of Regents
“in no way infringed” on a professor’s First Amendment rights
of that question is not required for the majority to reach its holding, I would
leave it for a case that actually requires its answer.
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16 LAGOA, J., Dissenting 22-13992
when it denied him tenure in part because he failed to teach a philosophy course in accordance with the University of Florida’s
course catalog. 541 F.2d at 1082. We noted that “[i]t is essential
that an academic board review a teacher’s classroom activities in
determining whether to grant or deny tenure.” Id.
And in Pred, we distinguished between a professor’s speech
in the classroom and outside the classroom:
[T]he two activities for which this claimed discrimination was meted out are quite different. One, relating to the effort to organize teachers for effective action is quite removed from the classroom-schoolhouse variety. The other, involving possible propaganda or agitation within the classroom and the
course of instruction, comes much closer to collision
with the need for discipline, both within the classroom and within the school as a whole. This may
well limit the extent or kind of expression of ideas under the First Amendment’s umbrella.
415 F.2d at 859.
In Duke, we reaffirmed Ferguson’s holding that a public university has “a right to terminate . . . a classroom instructor at the
point where the exercise of his constitutional privileges clearly
over-balanced his usefulness as an instructor.” 469 F.2d at 838
(quoting Ferguson, 430 F.2d at 859). And although Duke did not involve a restriction on classroom speech, it is relevant because we
credited the University’s argument that the plaintiff’s speech
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“demonstrated a lack of academic responsibility,” which suggested
that she was unfit to serve as an instructor. Id. at 838–40.
And then there is Bishop, which ought to end the matter. In
Bishop, we held that it is the “public employer”—not the professor—who determines what may and may not be taught in the classroom. 926 F.2d at 1074–77. Bishop concerned an exercise physiology professor at the University of Alabama who, from 1984
through the 1987 spring semester, “occasionally referred to his religious beliefs during instructional time.” 926 F.2d at 1068. The
professor told students that he was a Christian and sometimes explained in class why human physiology contained evidence supporting intelligent design. Id. He also occasionally interjected his
religious views when advising students “on coping with academic
stresses.” Id.
In April 1987, he organized an optional after-class lecture explaining why the complexity of human physiology suggests that
humans are “created by God” and are “not the by-product of evolution.” Id. at 1068–69. After that lecture, his supervisor sent him
a memorandum directing him to stop “interject[ing] [his] religious
beliefs . . . during instructional time periods” and to stop hosting
“optional classes where a ‘Christian Perspective’ of an academic
topic is delivered.” Id. at 1069. When the University refused to
rescind the memorandum, the professor sued and obtained an injunction in district court. Id. at 1069–70.
On appeal, we reversed. Applying the Pickering balancing
test, we held that the University “as an employer and educator can
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18 LAGOA, J., Dissenting 22-13992
direct Dr. Bishop to refrain from expression of religious viewpoints in the classroom and like settings.” Id. at 1072, 1076–77. We
balanced three interests. First, we looked to “the context: the university classroom during specific in-class time and the visage of the
classroom as part of a university course in an after-class meeting.”
Id. at 1074. Second, we considered the “University’s position as a
public employer” and its “authority to reasonably control the content of its curriculum, particularly that content imparted during
class time.” Id. Finally, we considered “the strong predilection for
academic freedom as an adjunct of the free speech rights of the
First Amendment.” Id. at 1075. But this final consideration was
not dispositive. Id. We acknowledged “the invaluable role academic freedom plays in our public schools,” yet held that the professor’s “interest in academic freedom and free speech do not displace the University’s interest inside the classroom.” Id. at 1075–
76.
We repeatedly emphasized that the University restricted the
professor’s speech only in the “classroom”—“wherever he purports
to conduct a class for the University.” Id. at 1075–76 (“[T]he University seeks only to prevent Dr. Bishop from making assertions
about his religious beliefs vis-a-vis the subject matter of his
courses.”). We concluded that “Dr. Bishop and the University disagree about a matter of content in the courses he teaches. The
University must have the final say in such a dispute.” Id. at 1076.
And “[t]hough Dr. Bishop’s sincerity cannot be doubted, his educational judgment can be questioned and redirected by the University
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22-13992 LAGOA, J., Dissenting 19
when he is acting under its auspices as a course instructor.” Id. at
1076–77. 6
Like Bishop, this case involves restrictions on a professor’s
speech in the classroom. See Fla. Stat. §§ 1000.05(2), (4). And Bishop
already held that, concerning classroom instruction, the State’s interests outweigh those of the individual professor. 926 F.2d at
1076–77. The majority recognizes Bishop’s applicability and analyzes the factors that we considered there. Maj. Op. at 35–44. But
its attempt to distinguish Bishop fails.
First, the majority acknowledges that “[h]ere the context is
the same as in Bishop: ‘the university classroom during specific inclass time.’” Maj. Op. at 37 (quoting Bishop, 926 F.2d at 1074). In
Bishop, we noted that the University of Alabama legitimately feared
that the professor’s speech would have a “coercive effect” on his
students: that students would feel compelled to show interest in
the professor’s religious views to obtain a good grade. 926 F.2d at
1069, 1074. The majority says this case is “[u]nlike” Bishop because
there “the University was furthering an anti-coercion goal.” Maj.
Op. at 38. Here, Florida supposedly “asserts the opposite interest—
6 Bishop clarified twice that its decision had nothing to do with the Establishment Clause. 926 F.2d at 1077 (“In any event, we do not reach the establishment questions raised by Dr. Bishop’s conduct. The University can restrict
speech that falls short of an establishment violation, and we have already disposed of the University’s restrictions of Dr. Bishop under the free speech
clause.”); id. at 1078 (same).
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20 LAGOA, J., Dissenting 22-13992
coercing [its] university faculty” to avoid “a certain set of ideas.”
Id.
Respectfully, that distinction does not hold up. Bishop addressed coercion directed at students; we expressed no concern
about any coercion suffered by a professor. See 926 F.2d at 1074.
In other words, the professor in Bishop, like the professor-plaintiffs
here, was—in the majority’s words—“coerc[ed]” to “avoid[] a certain set of ideas.” Maj. Op. at 38. That is why Bishop brought the
suit. See Bishop, 926 F.2d at 1068–70. The majority’s attempt to
cast Florida’s interest as somehow “opposite” of the interests in
Bishop simply does not follow.
Second, regarding the State’s interest as an employer, the
majority claims that Bishop is different because the professor’s religious speech was irrelevant to his physiology course. Maj. Op. at
38–40. The majority says that, unlike this case, the professor’s
speech in Bishop was professionally incompetent. Id. at 39. The
trouble with the majority’s distinctions is that they overlook what
Bishop actually held.
On the question of relevance, Bishop assumed that the professor’s religious views informed his professional viewpoint about
exercise physiology. 926 F.2d at 1076–77 & n.7. We held that the
University could prevent him “from presenting his religious viewpoint during instructional time, even to the extent that it represents his
professional opinion about his subject matter.” Id. at 1077 (emphasis
added). We likewise recognized that the professor expressed
“opinions about his work that happen[ed] to have a religious
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22-13992 LAGOA, J., Dissenting 21
source.” Id. at 1076 (emphasis added). Yet the University could still
conclude—consistent with the First Amendment—that the professor’s “opinions should not be represented in the courses he teaches
at the University.” Id. The crux of Bishop is not, as the majority
suggests, that religion is irrelevant to science, but that the State, as
a public employer, may decide what is taught in its classrooms. Id.
at 1076–77 & n.7.
On the question of professional competence, we expressly
refused to “gauge” whether the professor’s views were “wellfounded.” Id. at 1076 n.7. Our decision thus had nothing to do
with “professional[] competen[ce].” Maj. Op. at 39 (quotation
omitted). In any event, a carveout for so-called “professionally incompetent” speech would permit, what the majority elsewhere
condemns, “naked prohibition[s] on disfavored” viewpoints. Maj.
Op. at 44. Whether labeled “incompetent” or “unreasonable,” the
result is the same: the State may determine which viewpoints its
employees may endorse during classroom instruction and which
they may not. See Bishop, 926 F.2d at 1076–77.
Third, Bishop considered the First Amendment’s “strong
predilection for academic freedom as an adjunct of the free speech
rights.” 926 F.2d at 1075. The majority cites this interest, Maj. Op.
at 42–43, and I agree that it weighs in favor of professorial speech.
But the majority fails to meaningfully consider that Bishop held that
a professor’s “interest in academic freedom and free speech” does
not ultimately “displace the University’s interest inside the classroom.” 926 F.2d at 1076. We noted that the state could not restrict
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22 LAGOA, J., Dissenting 22-13992
a professor’s speech “when he acts as an independent educator or
researcher,” but the state could restrict a professor’s speech when
he acts “as a course instructor.” Id. at 1076–77; see id. at 1075 (“[W]e
do not find support to conclude that academic freedom is an independent First Amendment right.”).
In short, Bishop held that professors have no First Amendment right to overrule their employer’s judgment concerning the
content of classroom instruction. And the majority overlooks that
Bishop already balanced these interests and resolved that balance in
favor of the State’s authority within the classroom.7
7 The majority is “surprised” by the view that Bishop has already balanced the
relevant interests in this case. Maj. Op. at 36. But that is not a reason to disregard what Bishop actually did. Bishop balanced three interests: (1) “the university classroom during specific in-class time,” (2) “the University’s position
as a public employer which may reasonably restrict the speech rights of employees more readily than [sic] those of other persons,” and (3) “the strong predilection for academic freedom as an adjunct of the free speech rights of the
First Amendment.” 926 F.2d at 1074–75 (emphasis added). And we concluded
that “the University’s interests in the classroom conduct of its professors are
sufficient, in the balance we have suggested, to warrant the reasonable restrictions
it has imposed on Dr. Bishop.” Id. at 1076 (emphasis added). Those are the
same interests here. The IFA concerns “training” and “instruction,”
§ 1000.05(4)(a)—terms the Florida Board of Governors has limited to structured university activities, teaching directed at students or “within a course.”
See 10.005 Prohibition of Discrimination in University Training or Instruction, Bd.
of Governors, State Univ. Sys. of Fla. (Aug. 26, 2022). The plaintiff-professors
are employed by the State. Academic freedom again enters the analysis,
though constrained by Bishop’s express recognition that it is not “an independent First Amendment right.” 926 F.2d at 1075. It does not “transform” Bishop,
contra Maj. Op. at 41–42 n.14, to take the principles and interests we considered there, observe they are the same here, and apply its holding accordingly. USCA11 Case: 22-13992 Document: 156-1 Date Filed: 07/07/2026 Page: 75 of 85
22-13992 LAGOA, J., Dissenting 23
In my view, the only legitimate difference here is that Bishop
involved restrictions on one professor’s speech while this case involves a statute of general application enacted by the Florida legislature. But that difference should not change the outcome of this
case.
To start, Bishop did not treat “reasonable[ness]” as a license
to rebalance interests in every new case. What made the restrictions “reasonable” was a single, concrete fact: “they appl[ied]
only to [] classroom speech.” Bishop, 926 F.2d at 1075–76. That
limitation carried the entire analysis. And when the IFA is read—
as Bishop requires—“narrowly because [its restrictions] implicate
First Amendment freedoms,” id. at 1075, its reach is likewise confined to classroom instruction. See Fla. Stat. § 1000.05(4)(a) (limiting its restrictions to “training” and “instruction” of “such student
or employee”). Moreover, the Act expressly permits “discussion of
the concepts listed,” provided that any “training or instruction is
given in an objective manner without endorsement of the concepts.” Fla. Stat. § 1000.05(4)(b). It does not “ban” or reject any
idea. Contra Maj. Op. at 3, 4, 14, 48. The IFA bars Florida instructors from coercing students into believing they must embrace a
prescribed viewpoint (possibly to receive good grades or preferential treatment in class, for instance). The same balance Bishop
struck therefore resolves this case.
That is simply following precedent. If the majority disagrees, the proper
course is to take this case en banc and overrule Bishop, not to reinterpret it
beyond recognition.
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24 LAGOA, J., Dissenting 22-13992
The majority nevertheless invokes United States v. National
Treasury Employees Union (“NTEU”), 513 U.S. 454 (1995), for the
proposition that “higher standards are necessary to vindicate
broad, prophylactic restrictions on speech of a large number of employees . . ..” Maj. Op. at 41 (citing NTEU, 513 U.S. at 466–68). But
the majority stops there, overlooking that NTEU itself confronted
a statutory speech restriction and still turned to Pickering. NTEU,
513 U.S. at 468–70. Although the Court opined that laws with a
“widespread impact” on public employee speech raise more serious concerns than “any single supervisory decision,” id. at 468, it
accounted for this concern by altering the Pickering test, not abandoning it. The Court held that “[t]he Government must show that
the interests of both potential audiences and a vast group of present
and future employees in a broad range of present and future expression are outweighed by that expression’s ‘necessary impact on
the actual operation’ of the Government.” Id. (quoting Pickering,
391 U.S. at 571).
The majority never explains why NTEU’s standard materially alters Bishop’s rule in this context. It is undisputed that, unlike
Bishop, the IFA applies to the classroom instruction of all professors
at public universities in Florida. See Fla. Stat. § 1000.05(2), (4). But
why does that make a difference? NTEU involved speech that was
unrelated to a public employee’s duties at work. See 513 U.S. at 466
(noting that the plaintiffs’ “expressive activities” fell “within the
protected category of citizen comment on matters of public concern” and “involved content largely unrelated to their government
employment”). This case, by contrast, concerns speech by
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22-13992 LAGOA, J., Dissenting 25
Florida’s professors while they are performing their instructional
duties. See Wood v. Florida Dep’t of Educ., 142 F.4th 1286, 1293 (11th
Cir. 2025) (“[W]hen [a teacher] addressed her students in the classroom, she was very much on the clock, discharging the very obligation the state had hired her to discharge.”); see also Bishop, 926
F.2d at 1076 n.7. And Bishop expressly held that when an individual
professor and his employer disagree “about a matter of content in
the courses he teaches,” the employer “must have the final say in
such a dispute.” 926 F.2d at 1076. There is little reason to think
that balance changes when applied on a broader scale.
And the State’s interests here are substantial in any event.
The IFA prohibits instruction that people should be judged by their
skin color, that people “should not attempt to treat” other races
equally, and that other races “should be discriminated against.”
Fla. Stat. §§ 1000.05(4)(a)(1), (4), (6). In Bob Jones, which involved a
private university, the Supreme Court held that “the Government
has a fundamental, overriding interest in eradicating racial discrimination in education—discrimination that prevailed, with official
approval, for the first 165 years of this Nation’s history.” 461 U.S.
at 604; see also Arce v. Douglas, 793 F.3d 968, 986 (9th Cir. 2015)
(holding that Arizona had a “legitimate pedagogical interest in reducing racism” in public school coursework and curriculum).
Surely, the State’s interest here is even greater than what was recognized in Bob Jones, because this case involves only state-sponsored universities.
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26 LAGOA, J., Dissenting 22-13992
Although the majority does not meaningfully address Bob
Jones, the majority tells us that “hearing an idea you disagree with
is not discrimination.” Maj. Op. at 51. No one disagrees with that
generality, but it glosses over the classroom reality, where a professor’s endorsement of a particular viewpoint carries weight that
can distort genuine academic exchange. As Bishop explained, a professor’s words do not operate in a vacuum; they carry a “coercive
effect” because the professor maintains authority over the students’ grades. 926 F.2d at 1074.
Consider a professor who says that Hamas’s October 7th attack on Israel was “exhilarating” 8 and something to be celebrated
and encouraged. If the professor made that statement as part of
classroom instruction, would a Jewish student feel at liberty to
wear his kippah or voice contrary views in the classroom, in a
graded paper, or on an exam? Doubtful. The majority’s assurance
that “a professor who espouses a particular idea does not stand in
the same shoes as one who ridicules a student, threatens a student,
or targets a student,” Maj. Op. at 40, does little to account for that
reality. Florida acts well within its authority to curb professorial
endorsements of that kind within its own classrooms.9
8 Jackson Walker, Cornell professor who called Hamas terrorist attacks ‘exhilarating’
returns to teaching, WJAC (Sept. 16, 2024), at https://perma.cc/E45G-LMFK.
9 The majority states that it is “sincerely confused” by my reference to Bob
Jones. Maj. Op. at 41 n. 13. It need not be. The majority dismisses Bob Jones
on the ground that it is not a “free speech” case. Id. But that characterization
misses the point. Bob Jones identified a compelling governmental interest in
eradicating racial discrimination—an interest that Florida expressly invokes USCA11 Case: 22-13992 Document: 156-1 Date Filed: 07/07/2026 Page: 79 of 85
22-13992 LAGOA, J., Dissenting 27
Indeed, the Supreme Court has said, even if in dicta, that
“when the State” makes choices regarding “the content of the education it provides,” the First Amendment permits the State to decide “what is or is not expressed.” Rosenberger v. Rector & Visitors of
Univ. of Va., 515 U.S. 819, 833 (1995). The majority claims that this
reading misleadingly quotes Rosenberger “in isolation,” and that
“Rosenberger was really a case restricting the government’s ability
to impose speech limitations on student groups.” Maj. Op. at 25–
26. Not so.
True, Rosenberger involved student rather than professor
speech. 515 U.S. at 822–26. But as Rosenberger itself says, the right
of a state-sponsored university to decide what it will teach is “controlled by different principles.” Id. at 833–34; see also Widmar v. Vincent, 454 U.S. 263, 276 (1981) (“Nor do we question the right of [a
state] University . . . ‘to determine for itself on academic grounds
who may teach, what may be taught, how it shall be taught, and
who may be admitted to study.’”) (quoting Sweezy, 354 U.S. at 263
(Frankfurter, J., concurring in result)).
Furthermore, if I am misreading Rosenberger, then so did the
Third Circuit in an opinion authored by then-Judge Alito. See
here. 461 U.S. at 604. And because the IFA addresses “discrimination on the
basis of race, color, national origin, or sex,” the majority’s claim that this case
“is not about racial discrimination” is unavailing. See Maj. Op. at 41 n. 13. To
the extent the majority believes that, despite Bishop, additional balancing of
interests is required, Florida’s assertion of “the government’s interest in preventing invidious racial discrimination in public education” is relevant for the
reasons stated here, in Bob Jones, and Arce.
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28 LAGOA, J., Dissenting 22-13992
Edwards v. California Univ. of Pennsylvania, 156 F.3d 488, 491–92 (3d
Cir. 1998) (Alito, J.). In Edwards, the Third Circuit rejected the First
Amendment claim of a professor who was directed not to discuss
religion in his classroom. Id. at 489–92. Writing for the court, thenJudge Alito quoted the same passage of Rosenberger—concluding
that the University could restrict the professor’s classroom speech
because his speech “concerned the ‘content of the education [that
the University] provides.’” See id. at 491–92 (quoting Rosenberger,
515 U.S. at 833).
In short, we do not face “an unprecedented First Amendment intersection.” Maj. Op. at 11–12. And discerning the correct
result is not so difficult. Our controlling precedents and the original meaning of the First Amendment point in the same direction.
The majority veers away from both to adopt a position that does
not even remedy the problem it perceives. See infra at 31–33.
“Though we are mindful of the invaluable role academic
freedom plays in our public schools, particularly at the post-secondary
level, we do not find support to conclude that academic freedom is
an independent First Amendment right.” Bishop, 926 F.2d at
1075 (emphasis added); see also Edwards, 156 F.3d at 491 (Alito,
J.) (“[W]e conclude that a public university professor does not have
a First Amendment right to decide what will be taught in the classroom.”).
This panel is not free to rewrite precedent simply because
we dislike where it leads. That decision must be made “by the
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22-13992 LAGOA, J., Dissenting 29
Supreme Court or by this court sitting en banc.” Archer, 531 F.3d at
1352.
* * *
Much of the majority’s criticism of this dissent reduces to a
supposed distinction between “a state’s authority to control curriculum” and “a university’s authority to control the curriculum.” See
Maj. Op. at 25–26 & n.10, 41 n.14.
But Florida law leaves the majority’s university–State distinction with nowhere to stand. Contra id. at 26 n.10, 41–42 n.14. Florida’s Constitution provides that “[t]here shall be a single state university system,” that “[a] board of trustees shall administer each
public university,” and that “a board of governors shall govern the
state university system.” Fla. Const. art. IX, § 7(b). Florida lists
each of the universities associated with the professor-plaintiffs as a
“[s]tate university.” Fla. Stat. § 1000.21(9). And Florida declares
that the “boards of trustees [of state universities] are a part of the
executive branch of state government.” Fla. Stat. § 1001.71(3); see
id. § 1001.705(1)(c) (defining “[university] Board of Governors” as
“public officer[s]”); id. § 1001.705(1)(d) (defining “[s]tate university”
and “state universities” as “agencies of the state which belong to
and are part of the executive branch of state government”). Indeed, in the Eleventh Amendment context, Florida’s grip on its
public education system is so tight that its Boards of Trustees function as “arm[s] of the state.” Univ. of S. Fla. Bd. of Trustees v. CoMentis, Inc., 861 F.3d 1234, 1238 (11th Cir. 2017) (citation omitted).
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30 LAGOA, J., Dissenting 22-13992
Not to be overlooked, the suit underlying Bishop was
brought “against the Board of Trustees of the University.” 926 F.2d
at 1070. In that case, our reference to the “University” meant “the
University of Alabama through its Board of Trustees.” Id. at
1067 (emphasis added). The same was true in its relevant predecessors. See Pred, 415 F.2d at 853 n.3 (“Board of Public Instruction of
Dade County, Florida”); Megill, 541 F.2d at 1076 (“State Board of
Regents”); Duke, 469 F.2d at 837 (same). So the majority’s claim
that Bishop speaks only to “a university’s authority” and not to “a
state’s authority,” see Maj. Op. at 26–27 & n.10, 42 n.14, has limited
force—particularly in Florida, where a university’s Board of Trustees is itself an instrumentality of the State. See Fla. Const. art. IX,
§ 7(b).
As to Edwards, see Maj. Op. at 26–27 n.10, then-Judge Alito
explained that “[o]ur conclusion that the First Amendment does
not place restrictions on a public university’s ability to control its
curriculum is consistent with the Supreme Court’s jurisprudence
concerning the state’s ability to say what it wishes when it is the
speaker.” Edwards, 156 F.3d at 491 (Alito, J.) (emphases added). The
same principle appears in our own decisions. See Megill, 541 F.2d at
1086 (“When his statements and actions fell short of those that the
Board [of Regents] could rightfully expect of its tenured professors,
the state’s strong interest in a quality university system and effective
teacher contribution to the educational process prevailed.”) (emphases added); Duke, 469 F.2d at 837 (categorizing, in the Fourteenth Amendment context, “universities” as “creatures of the
state”) (emphasis added); Pred, 415 F.2d at 856 (“What is at stake is
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22-13992 LAGOA, J., Dissenting 31
the vindication of constitutional rights—the right not to be punished by the State or to suffer retaliation at its hand because a public
employee persists in the exercise of First Amendment rights.”) (emphasis added). 10
Taken together, these authorities make clear that Florida’s
public universities speak and act subject to the State’s control and
administration. Cf. Waugh v. Bd. of Trs. of Univ. of Miss., 237 U.S.
589, 596 (1915) (“It is to be remembered that the University was
established by the state, and is under the control of the state…”).
Indeed, the IFA functions as the State’s directive to its own employees, setting the standards that govern classroom instruction when,
as Florida puts it, they teach “the State’s curriculum, in the State’s
classrooms, on the State’s time, in return for a State paycheck.”
And as this Court recognized in Bishop, the public employer has
authority “to reasonably control the content of its curriculum, particularly that content imparted during class time.” Bishop, 926 F.2d
at 1074.
IV.
The majority’s rule, meant to avoid what it believes is the
State’s improper viewpoint discrimination, nonetheless endorses
10 The Supreme Court has distinguished between a state’s “attempts to direct
the content of speech at private universities,” where “[o]bvious First Amendment problems would arise,” and a state’s “attempts to direct the content of
speech at public educational institutions,” where “complicated First Amendment issues are presented because government is simultaneously both speaker
and regulator.” Univ. of Pennsylvania v. E.E.O.C., 493 U.S. 182, 198 n.6 (1990)
(citing Meese v. Keene, 481 U.S. 465, 484, n.18 (1987)) (emphasis added).
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32 LAGOA, J., Dissenting 22-13992
its own form of viewpoint discrimination. Of course, some
amount of viewpoint discrimination is necessary to ensure the effective operation of any academic institution. The majority
acknowledges as much, retaining vague carveouts—like “reasonable[ness]”—to distinguish between prohibitions that are and are
not permissible under the First Amendment. Maj. Op. at 37. The
majority emphasizes that the boundary lines are “well-understood.” Id. at 38–39. It assures that “conspiracy theories” and “the
like” will not be tolerated. Id. at 39. But these exceptions do not
eliminate viewpoint discrimination. Put differently, the majority
recognizes that someone must set the limits of what can be taught
at public universities. And through its carveouts, the majority shifts
that decision-making authority from the people to federal judges.
The test now is: Does the presiding judge believe that the professor’s viewpoint is within the range of permissible views?
As Bishop recognized, we are in “no position to gauge” the
legitimacy of viewpoints in fields we know little about. 926 F.2d at
1076 n.7. The majority’s rule still allows “naked prohibition[s] on
disfavored speech,” Maj. Op. at 44, but authorizes that viewpoint
discrimination under exceptions created, interpreted, and enforced
by the judiciary. 11 Because neither our precedents nor the original
11 Despite its assurance that it declines to “make any judgment about the value
of the[se] ideas,” the majority does exactly that. Maj. Op. at 48. By its own
account, it believes “universities or other government authorities” may “exclude
speech that veers outside of well-understood parameters.” Id. at 38–39 (emphases added). But what does “veer outside of well-understood parameters”
mean and why must it be this majority who decides? Those questions go
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22-13992 LAGOA, J., Dissenting 33
meaning of the First Amendment compels that conclusion, I respectfully dissent.
unanswered. Rather, the majority simultaneously labels certain categories of
speech as properly excludable while insisting that “it is not our place” to judge
the value of contested viewpoints. Id. 48. At bottom, the majority acknowledges that some speech may permissibly be excluded in Florida’s classrooms,
but it removes that decision from the elected representatives of the State of
Florida and vests it instead in the judiciary. I maintain that, in this context,
this “is not our place.”