discussing Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) and Okwedy v. Molinari, 333 F.3d 339 (2d Cir. 2003)
How later courts described this case
- discussing Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) and Okwedy v. Molinari, 333 F.3d 339 (2d Cir. 2003)
- “Due to the challenged provisions of FOPA, and in order to avoid discipline by the Board of Medicine, these doctors are engaged in self-censorship.”
- “And we have rejected the argument that plaintiffs have standing based on their subjective fear of harm and its chilling effect.” (citation and quotation marks omitted)
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
NFC FREEDOM, INC., et al.,
Plaintiffs,
v. Case No.: 4:23cv360-MW/MAF
MANNY DIAZ, JR., et al.,
Defendants.
__________________________/
ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION
This Court is once again faced with another case involving Florida’s alleged
attempts to combat what it calls indoctrination in its public universities with state-
sponsored indoctrination. Plaintiffs, a collection of professors and students at New
College, and an organization that seeks to promote New College as a progressive
honors college, have sued to enjoin Defendants’ enforcement of certain provisions
of state law that were amended this year under SB 266. They assert the laws at issue
directly censor what can be taught in class and threaten to defund their teaching and
scholarship in the event they promote forbidden viewpoints.
This state-sponsored censorship of the university is even more pernicious,
according to Plaintiffs, because the provisions at issue are irredeemably vague.
When, for instance, is a professor’s discussion of a significant historical event to be
deemed a “distortion” of that event? Is it a distortion of the history of American
slavery to claim enslaved people personally benefitted from their less-than-human
treatment as chattel? Defendants assert the answer is simple—a distortion of
significant historical events is self-evident, or, perhaps, falls outside of whatever the
Florida Legislature and other state rulemakers decide the proper view of history
ought to be. But how are professors to determine what is self-evident when we
cannot even agree if the right way to teach American history includes teaching that
there was an upside to slavery for enslaved people? See ECF No. 5 at 19.1
Before this Court can even reach the questions Plaintiffs pose with respect to
the constitutionality of the challenged provisions, this Court must first satisfy itself
that Plaintiffs have standing to move for a preliminary injunction. Here, because
Plaintiffs have not come forward with sufficient evidence to establish standing, this
Court cannot reach the merits of this particular dispute. This Court heard Plaintiffs’
1 On the record at the hearing, this Court invoked a different example when discussing how
difficult it is to determine whether a lesson or theory can be viewed as “distorting history”—
namely, the Dunning School. The Dunning School is named for early-twentieth-century Columbia
University historian, William A. Dunning, whose historical analysis “downplay[ed] the conflicts
that led to the Civil War and focused instead on Reconstruction as the pivotal moment of sectional
discord.” Laura Edwards, “Southern History as U.S. History,” The Journal of Southern History,
August 2009, Vol. 75, No. 3, at 547. The work of Dunning School historians in the first thirty
years of the twentieth century has been criticized as both racist and paternalistic. “Dunning School
scholars never entertained the possibility that education would lead to racial equality, so convinced
were they of slaves’ innate inferiority.” Id. at 548. “The challenge with emancipation was to
establish a new system of control to replace [slavery],” and “[i]n the work of the Dunning School
scholars, it was northern radicals who prevented white southerners from doing so.” Id. While the
Dunning School fell out of vogue later in the 20th century, for decades it was considered a
“traditional” historical analysis of the Reconstruction Era rather than a distortion of that history
with racist undertones.
2
motion for preliminary injunction, ECF No. 5, and Defendants’ arguments in
opposition at a hearing on October 23, 2023. For the reasons stated below, Plaintiffs’
motion, ECF No. 5, is DENIED.
I
Before this Court addresses whether Plaintiffs have standing for purposes of
a preliminary injunction, a little context helps. Plaintiffs include three professors,
three students, and an organization dedicated to academic freedom and promoting
New College as a progressive honors college. They have sued the individual
members of the Board of Governors and the New College Board of Trustees, along
with the President of New College, all in their official capacities. Plaintiffs seek to
enjoin Defendants’ enforcement of SB 266, a bill that amended several provisions
of Florida’s statutes governing Florida’s public colleges and universities.2
SB 266, in turn, modifies Florida law in several ways. Relevant here are the
changes SB 266 made to (1) Florida’s general education core course standards, see
section 1007.25(3)(c), Florida Statutes (2023); (2) how Florida’s universities may
spend state and federal funds, see section 1004.06(2), Florida Statutes (2023); and
how tenure works for Florida professors, see section 1001.706(6)(b), Florida
2 At the hearing, Plaintiffs clarified that they are asking this Court to enjoin Defendants
from enforcing only two provisions amended by SB 266, which will be discussed in more detail
infra.
3
Statutes (2023). In their motion and at the hearing, Plaintiffs asserted that these
changes, particularly the general education standards and the funding provisions, are
viewpoint discriminatory in violation of the First Amendment, unconstitutionally
overbroad in violation of the First Amendment, and unconstitutionally vague in
violation of the Fourteenth Amendment.
What’s at stake, according to Plaintiffs, is this. The professors are currently
teaching—and the students are enrolled in—classes that ordinarily include
discussions that run afoul of certain prohibited ideas and viewpoints that the general
education standards and funding provisions appear to prohibit. The professors fear
they may be disciplined, defunded, or even dismissed in the event they run afoul of
the challenged provisions. The students fear that they will miss out on discussions
and other academic work that they otherwise would have been able to engage in but
for the challenged provisions. These professors and students are also members of
campus organizations and the plaintiff organization, all of which presumably fall in
the “woke” category of promoting disfavored views, and they fear that these
organizations will be disbanded or otherwise prohibited from organizing on campus.
As evidence of the reasonableness of their subjective fears, Plaintiffs point to
a handful of public statements from Governor DeSantis, who is not a Defendant in
this case, Defendant Diaz, who is not responsible for personnel decisions at the
institutional level, Defendant Corcoran, who is quoted with respect to his opposition
4
to “DEI programs” in general, and Defendant Rufo, who is quoted for his proffered
definition of “DEI.” In the absence of other evidence, Plaintiffs rely heavily on the
fact that this Court has already enjoined enforcement of a different statute directed
at Florida’s public universities in two prior cases. See Pernell v. Fla. Bd. of Govs. of
the St. Univ. Sys., 641 F. Supp. 3d 1218 (N.D. Fla. 2022) (granting in part two
motions for preliminary injunction in consolidated cases, Pernell and Novoa).
But Plaintiffs’ suggestion that their standing in this case is analogous to the
plaintiffs’ standing in Pernell and Novoa is misplaced. In those cases, this Court
addressed a provision of state law that categorized the expression of certain
viewpoints during classroom instruction about several ideas concerning race, sex,
and privilege as an act of unlawful discrimination. See § 1000.05(4), Fla. Stat.
(2022). The statute tasked the Board of Governors with promulgating regulations to
implement the provision with respect to state universities. § 1000.05(6)(b), Fla. Stat.
And, when the parties had filed suit, the Board of Governors had already
promulgated a regulation that required (1) each state university to adopt a regulation
that prohibits subjecting any student or employee to training or instruction that
expressed the forbidden viewpoints of section 1000.05(4), (2) investigate complaints
regarding alleged violations of such university regulation, and (3) discipline
employees—including professors—for their failure to comply with the regulation,
including “termination if appropriate.” See Board of Governors Regulation
5
10.005(2)–(3), available at https://www.flbog.edu/wp-content/uploads/
2022/08/10.005-Prohibition-of-Discrimination-in-University-Training-or-Instructi
on.pdf (last visited Nov. 2, 2023). Thus, the plaintiffs in Pernell and Novoa were
able to establish that their free-speech injuries concerning their classroom speech
were objectively reasonable and traceable to the Board of Governors based in large
part on the regulation that the Board of Governors had adopted, which ordered their
universities to investigate and punish them for alleged violations of school policy
implementing section 1000.05(4).
This is not to say that a future plaintiff must be able to point to a law that
directly targets their speech or a regulation akin to what this Court reviewed in
Pernell to establish standing. Indeed, in another case involving a challenge to Florida
laws governing state colleges and universities, this Court heard lengthy evidence
concerning various institutions’ administrations’ attempts to interpret and enforce a
challenged law such that the plaintiffs may have been able to establish standing
against their respective employers had they sued the right defendants. See, Link v.
Diaz, --- F. Supp. 3d ---, 2023 WL 2984726, at *5 (N.D. Fla. 2023) (noting that “this
Court heard ample evidence concerning various colleges’ and universities’
independent attempts to interpret this provision and provide some guidance to
faculty members with respect to whether a given course may be considered a ‘class
lecture’ subject to the recording provision” and that the Link plaintiffs’ “standing
6
arguments may have been stronger had they sued the members of their respective
Boards of Trustees, who appear to have taken the lead with respect to ‘enforcing’
the recording provision at the institutional level”). Moreover, the Eleventh Circuit
has also recognized that formal punishment or the formal power to impose it is not
strictly necessary to impermissibly chill free speech. See Speech First, Inc. v.
Cartwright, 32 F.4th 1110, 1123 (11th Cir. 2022) (discussing Bantam Books, Inc. v.
Sullivan, 372 U.S. 58 (1963) and Okwedy v. Molinari, 333 F.3d 339 (2d Cir. 2003)).
Instead, when there is record evidence demonstrating the defendants used indirect
pressure—including thinly veiled threats to institute criminal proceedings and other
“informal sanctions” like “coercion, persuasion, and intimidation”—to chill free
expression, this could be sufficient to establish standing. Id.
But with respect to the case now before this Court, it is clear that the record
lacks the necessary connective tissue to establish standing. What’s missing in this
record is any evidence that (1) the challenged provisions target individual professors,
(2) the parties responsible for enforcing the challenged provisions have adopted any
regulations that target individual professors, or (3) any Defendant said or did
anything at all with respect enforcing these provisions in the way Plaintiffs fear. For
these reasons, their motion, ECF No. 5, is due to be denied for lack of standing.
7
II
Plaintiffs bear the burden of establishing standing for purposes of a
preliminary injunction. Standing exists when a plaintiff shows (1) that they have
suffered an injury-in-fact that is (2) traceable to the defendant and that (3) can likely
be redressed by a favorable ruling. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–
61 (1992). And “where a plaintiff moves for a preliminary injunction, the district
court . . . should normally evaluate standing ‘under the heightened standard for
evaluating a motion for summary judgment.’ ” Waskul v. Washtenaw Cnty. Cmty.
Mental Health, 900 F.3d 250, 255 (6th Cir. 2018) (quoting Food & Water Watch,
Inc. v. Vilsack, 808 F.3d 905, 912 (D.C. Cir. 2015)). Thus, “a plaintiff cannot ‘rest
on such mere allegations, [as would be appropriate at the pleading stage,] but must
set forth by affidavit or other evidence specific facts, which for purposes of the
summary judgment motion will be taken to be true.’ ” Cacchillo v. Insmed, Inc., 638
F.3d 401, 404 (2d Cir. 2011) (some alteration in original) (quoting Lujan, 504 U.S.
at 561). Here, only Plaintiffs NCF Freedom, Inc., Hernandez, Clark, Anderson,
Engels, and Leffler have filed evidence in support of their motion. Accordingly, this
Court limits its discussion of standing to these Plaintiffs.
Plaintiffs ask this Court to preliminarily enjoin Defendants from enforcing SB
266 “in whole or in part.” ECF No. 5 at 38. But this Court can only grant Plaintiffs’
motion with respect to those provisions for which they have standing to challenge.
8
See CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1271–72 (11th
Cir. 2006). Although Plaintiffs discuss the enacting legislation, SB 266, as the target
of their challenge throughout their motion, they agreed at the hearing that their
motion is focused on two provisions that have been amended by SB 266; namely,
section 1007.25(3)(c), Florida Statutes (2023), and section 1004.06(2), Florida
Statutes (2023). For ease of reference, this Court will refer to these provisions as the
“general education requirements” and the “funding provisions,” throughout this
Order. Accordingly, this Court will determine whether at least one Plaintiff has
standing to challenge either the general education requirements or the funding
provisions, beginning with the general education requirements.
A
Plaintiffs assert that the general education requirements serve to directly
censor classroom speech in violation of the First Amendment and are
unconstitutionally vague because they fail to provide fair notice of what is prohibited
in the classroom. According to Plaintiffs, this direct censorship and vagueness result
in self-censorship and chilled speech for fear of punishment and loss of performance-
based funding for their institution. Ultimately, this Court must determine whether
Plaintiffs have met their burden to prove, “through affidavit or other evidence,” that
their injuries are cognizable, traceable to Defendants’ conduct, and redressable with
an injunction directed at these Defendants. See Cacchillo, 638 F.3d at 404.
9
This Court pauses to note that Plaintiffs challenge the general education
requirements in a pre-enforcement posture. In other words, nobody has been
disciplined or defunded yet. Without question, threatened enforcement of a law can
create an injury-in-fact. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158
(2014). A person “c[an] bring a pre-enforcement suit when he ‘has alleged an
intention to engage in a course of conduct arguably affected with a constitutional
interest, but proscribed by a statute, and there exists a credible threat of
prosecution[.]’ ” Wollschlaeger v. Governor, Fla., 848 F.3d 1293, 1304 (11th Cir.
2017) (quoting Susan B. Anthony List, 573 U.S. at 159). And when First Amendment
rights are involved, courts apply the injury-in-fact requirement most loosely. Harrell
v. Fla. Bar, 608 F.3d 1241, 1254 (11th Cir. 2010). Ultimately, for self-censorship
injuries, “[t]he fundamental question . . . is whether the challenged policy
‘objectively chills’ protected expression.” Speech First, Inc., 32 F.4th at 1120.
Consistent with governing law, this Court categorically rejects the notion that
punishment must occur before a plaintiff may challenge state action. Indeed, this
Court has not shied away from granting preliminary injunctive relief in other cases
that involved First Amendment pre-enforcement challenges. See, e.g., Gale Force
Roofing & Restoration, LLC v. Brown, 548 F. Supp. 3d 1143 (N.D. Fla. 2021)
(granting motion for preliminary injunction involving First Amendment pre-
enforcement challenge to advertising regulation that subjected violators to specific
10
penalties, including civil penalties and up to $10,000 fine for each violation); Dream
Defenders v. DeSantis, 559 F. Supp. 3d 1238 (N.D. Fla. 2021) (granting in part
motion for preliminary injunction involving First Amendment pre-enforcement
challenge to Florida’s anti-riot statute on overbreadth and vagueness grounds);
Pernell, 641 F. Supp. 3d 1218 (granting in part motions for preliminary injunction
in two cases involving First Amendment and vagueness challenges to statutes
amended by the Individual Freedom Act).
But every case is different, and this Court will only order such relief so long
as a plaintiff has met their burden of demonstrating their legal entitlement to such
relief. In the cases this Court has previously granted preliminary injunctive relief, at
least one plaintiff submitted sufficient evidence demonstrating a cognizable injury
under each challenged provision—often chilled speech that was objectively
reasonable based on the evidence in the record—that was traceable to the
defendant’s conduct and would be redressed by an injunction against that defendant
from enforcing the provision at issue.
Here, with respect to whether at least one Plaintiff has established an injury-
in-fact, Plaintiffs point to their declarations, which generally demonstrate that the
Professor Plaintiffs regularly teach courses, including general education courses,
that either promote some of the forbidden ideas or, at least, touch on some of the
prohibited topics. Likewise, some of the Student Plaintiffs are enrolled in courses
11
the Professor Plaintiffs teach, or other courses that they fear will be censored as a
result of the challenged provisions. Accordingly, for fear of punishment for running
afoul of the asserted prohibitions, the Professor Plaintiffs have changed the way they
plan to teach this semester and revised the content of their courses. See, e.g., ECF
No. 5-4 ¶ 9.
The questions before this Court are twofold. Namely, (1) whether Plaintiffs’
injuries—charitably, chilled speech or self-censorship—are objectively reasonable
based on the evidence in this record, and (2) assuming arguendo that Plaintiffs can
demonstrate an injury-in-fact, whether they have met their burden to establish that
such injury is traceable to any of the Defendants’ conduct. To answer these
questions, this Court must examine the challenged provision at issue and explain
how this statutory scheme works together.
1
With respect to the general education requirements, SB 266 amended section
1007.25, in relevant part, to require the chairs of the State Board of Education and
the Board of Governors to appoint faculty committees to review and recommend
statewide general education core course options for inclusion in the statewide course
numbering system. See § 1007.25(3), Fla. Stat. (2023). These faculty committees
must “review and submit recommendations to the Articulation Coordinating
12
Committee3 and the commissioner for the removal, alignment, realignment, or
addition of general education core courses that satisfy the requirements of this
subsection.” Id. This review and submission of recommendations must take place
“by July 1, 2024, and by July 1 every 4 years thereafter . . . .” Id.
The requirements for general education core courses include section
1007.25(3)(c), which states that “[g]eneral education core courses may not distort
significant historical events or include a curriculum that teaches identity politics,
violates s. 1000.05, or is based on theories that systemic racism, sexism, oppression,
and privilege are inherent in the institutions of the United States and were created to
maintain social, political, and economic inequities.” Accordingly, for purposes of
conducting their review and making necessary recommendations, the faculty
committees must consider whether general education core courses “distort
significant historical events” or “include a curriculum” that teaches certain concepts,
runs afoul of the Florida Educational Equity Act, including the viewpoint-based
restrictions that this Court has already found to be unconstitutional in other cases, or
3 The Articulation Coordinating Committee is established by statute and required to, among
other things, monitor the exit requirements of one education system and admission requirements
of another education system for students who ordinarily transfer from one to the other, review the
statewide course numbering system, and publish the list of courses meeting common general
education and common degree prerequisite requirements established under section 1007.25. See §
1007.01(3), Fla. Stat. This committee is made up of elected members, including “two members
each representing the State University System, the Florida College System, public career and
technical education, K-12 education, and nonpublic postsecondary education and one member
representing students.” Id.
13
is based on certain theories regarding social, political, and economic inequities in
the United States. If such courses include this prohibited material, they do not meet
the standards for general education core courses and cannot be listed as general
education core courses in the statewide course numbering system. See §§
1007.25(3), 1007.55(1)(a), Fla. Stat. (2023).
Relatedly, section 1007.55(2) requires public postsecondary educational
institution boards of trustees and presidents to annually review and approve, at a
public meeting, courses that meet the general education course requirements under
section 1007.25. § 1007.55(2), Fla. Stat. (2023). In turn, by December 1, 2024, and
each December 1 thereafter, the Articulation Coordinating Committee shall submit
those courses that each institution has approved as meeting general education
requirements to the State Board of Education and the Board of Governors.
§ 1007.55(4), Fla. Stat. (2023). In turn, “[t]he State Board of Education and Board
of Governors must approve or reject the list of general education courses for each
Florida College System institution and state university, respectively.” Id.
Finally, a public postsecondary educational institution—like New College—
that fails to comply with its requirements under section 1007.55 is not eligible to
receive performance-based funding. § 1007.55(5), Fla. Stat. (2023). The Board of
Governors is responsible for adopting regulations to implement section 1007.55. See
§ 1007.55(7), Fla. Stat. And the New College Board of Trustees is free to adopt its
14
own school policies with respect to course instruction and the selection of courses
offered to students. See Board of Governors Regulation 1.001(1), (3), and (4). At
this juncture, however, neither the Board of Governors nor the Board of Trustees of
New College has taken any action to implement these challenged provisions by
regulation or school policy. Nor have Plaintiffs submitted any evidence
demonstrating any Defendant’s intentions with respect to such implementation.
Having set out the relevant regulatory framework, this Court returns to
Plaintiffs’ theory of standing to enjoin Defendants’ enforcement of section
1007.25(3)(c).
2
Both at the hearing and in their motion, Plaintiffs argued that the record before
this Court is sufficient to establish that their self-censorship is objectively reasonable
and traceable to Defendants’ conduct. But this Court is not convinced.
According to Plaintiffs, it’s simple. Plaintiffs are injured because of the
challenged provisions, and they have sued the parties responsible for implementing
and enforcing those provisions. ECF No. 22 at 12. To support this argument with
respect to the members of the Board of Governors, Plaintiffs simply point to the
Board’s authority to pass regulations and allocate funds to colleges and universities
and compare this case to Pernell, where this Court agreed that most of the plaintiffs
in that case had injuries traceable to the conduct of the members of the Board of
15
Governors. Id. at 13–14. As for the members of the Board of Trustees, Plaintiffs note
that the Board is the Professor Plaintiffs’ direct employer and can discipline them if
they violate state law. Likewise, Plaintiffs note that President Corcoran is charged
with making tenure decisions concerning faculty, including the Professor Plaintiffs,
suggesting that their tenure is in jeopardy if they violate the challenged provision.
And Plaintiffs argue that this case is like Pernell in that performance-based funding
is off the table for any institutions that violate the general education requirements,
and thus, the Board of Trustees has a strong incentive to punish professors who
violate the general education requirements. But Plaintiffs’ arguments are flawed for
a few reasons.
First, Plaintiffs view the challenged provision, section 1007.25(3)(c), in a
vacuum. They argue that this provision, which sets out some of the standards for
general education core courses, is a direct prohibition on professors’ speech
regarding certain topics. However, “[i]t is a fundamental canon of statutory
construction that the words of a statute must be read in their context and with a view
to their place in the overall statutory scheme.” Home Depot U.S.A., Inc. v. Jackson,
139 S. Ct. 1743, 1748 (2019) (quoting Davis v. Mich. Dept. of Treas., 489 U.S. 803,
809 (1989)). And, as this Court explained above, section 1007.25(3)(c) is a sub-
section within a broader statute that directs the Board of Governors and the Board
of Education to appoint faculty committees to review general education courses for
16
their continued inclusion as general education courses in the statewide course
numbering system. In other words, this subsection provides some of the criteria that
the faculty review committees must consider when determining whether a course
ought to be included in the statewide course numbering system as a designated
general education core course. In turn, section 1007.55 requires colleges and
universities to undergo a similar review for compliance with the State’s general
education standards and to choose which courses are to be included as general
education core courses in the statewide course numbering system. In the event the
educational institutions do not comply with the requirements of section 1007.55,
those institutions may lose performance-based funding.
Nothing in either section 1007.25 or section 1007.55 is directed at individual
professors. Moreover, Plaintiffs’ counsel agreed at the hearing that professors do not
have a constitutional right to teach general education courses. Instead, the commands
of both statutes are directed at (1) the Board of Governors and the Board of
Education to form the faculty review committees and ultimately approve which
courses are listed as general education core courses in the statewide course
numbering system, (2) the Boards of Trustees of each educational institution to
perform their own course reviews, and (2) the Articulation Coordinating Committee
to present the recommended course listings to the Board of Governors and the Board
of Education for approval.
17
Second, Plaintiffs ask this Court to speculate that, because the Board of
Governors has implementing authority under section 1007.55, it will necessarily
promulgate regulations that reach through to individual professors in such a way as
to ensure discipline or other consequences if those professors discuss prohibited
topics or viewpoints in the general education courses that they teach.4 See ECF No.
22 at 13 n.5. Although Plaintiffs acknowledge that the Board of Trustees—not the
Board of Governors—is responsible for personnel decisions for individual
professors, they suggest that the Board of Governors will likely implement
regulations that direct the Board of Trustees to punish professors, like the regulations
this Court reviewed in Pernell, and thus, they have satisfied their burden of proving
standing to challenge the Board of Governors’s enforcement of section
1007.25(3)(c). See id. at 13–14. But Plaintiffs have asked this Court to assume
something without pointing to any evidence to support this leap in logic.
Contrary to Plaintiffs’ suggestion, their claim challenging the Board’s role in
enforcing the general education requirements closely resembles what this Court
addressed in Falls v. DeSantis, Case No.: 4:22cv166-MW/MJF, 2023 WL 3568526,
*1 (N.D. Fla. May 19, 2023). In that case, this Court dismissed a university
4 Plaintiffs have demonstrated that at least two of the Professor Plaintiffs, Anderson and
Clark, are currently teaching general education core courses, and thus, they fear that their speech
in these classes is now subject to punishment if they run afoul of the law’s prohibitions.
18
professor’s challenge to the Board’s role in enforcing the Individual Freedom Act
because he had failed to show how his free-speech injury was traceable to the Board
of Governors based on the facts as they existed at the time he filed his complaint.
Absent any factual development regarding Professor Cassanello’s theory of
standing, this Court concluded that he was asking this Court to speculate as to how
the Board’s conduct—which, at the time Falls was filed, was originally only tied to
punishing educational institutions—caused his free-speech injury. So too here.
Rather than supplement the record with evidence linking the Board members’
intentions to reach through to individual professors through coercive regulations,
Plaintiffs ask this Court to assume that the Board will act like it did in Pernell. To
support this theory, Plaintiffs point to statements from the Governor and a single
member of the Board of Governors. But the Governor is not a party, and his
statements regarding SB 266 offer little in the way of evidence to establish either
that Plaintiffs’ fears of punishment are objectively reasonable and not speculative or
that Plaintiffs’ self-censorship is traceable to the Board of Governors’s conduct. And
the statement from the Commissioner of Education, though a member of the Board
of Governors, is not related to any proposed enforcement of the challenged provision
and, instead, is evidence of his views of “DEI” more generally. Absent evidence that
allows for a reasonable inference that Defendants intend to enforce the challenged
provision in the manner that Plaintiffs fear, this Court cannot fill in the blanks for
19
Plaintiffs where they have offered only a mere scintilla of evidence that their injuries
are traceable to the conduct of the members of the Board of Governors.5
Plaintiffs face the same problem with respect to the members of the Board of
Trustees. True, these Defendants have the general authority to take disciplinary
action against individual professors if they violate state law, among several other
bases for discipline. Here, Plaintiffs ask this Court to speculate that the Board of
Trustees would construe an individual teacher’s in-class speech that falls outside
section 1007.25(3)(c)’s restrictions to be a “violation of state law.” But Plaintiffs
have offered no evidence to support the reasonableness of their fears that this would
be the case.
Indeed, as this Court mentioned above, section 1007.25(3)(c) is just one of
several criteria that faculty review committees and state universities must consider
when determining whether to categorize certain courses as general education core
5 It is no answer for Plaintiffs to point to Defendants’ defense in this case as evidence
demonstrating that their claims are ripe, or that their injuries are actual, imminent, and traceable
to these Defendants. See ECF No. 5 at 4 (citing Wollschlaeger, 848 F.3d at 1304–05). In
Wollschlaeger, the Eleventh Circuit held that the court could infer an intent to enforce a challenged
provision when the plaintiffs had challenged the law soon after it was enacted, and the state had
then vigorously defended the law. 848 F.3d at 1305. But the plaintiffs in Wollschlaeger had already
established that their free-speech injuries were traceable to the disciplinary authority of the Board
of Medicine—indeed, the plain language of the statute deemed violations of the challenged
provisions to be “grounds for disciplinary action by Florida’s Board of Medicine.” Id. at 1303; see
also id. at 1304 (“Due to the challenged provisions of FOPA, and in order to avoid discipline by
the Board of Medicine, these doctors are engaged in self-censorship.”). But here, Plaintiffs have
failed to establish how their fears of discipline are objectively reasonably because the laws at issue
do not tie disciplinary action to their individual violations of the challenged provisions.
20
courses. Notwithstanding Plaintiffs’ subjective fears, it is not a mandate to individual
professors or students, nor does it set out any disciplinary consequences for
individual professors whose in-class speech runs counter to the criteria’s restrictions.
Here, rather than submit evidence demonstrating (or permitting a reasonable
inference) that the members of the Board of Trustees will construe a teacher’s speech
to amount to a “violation of state law” and thus expose them to disciplinary action,
Plaintiffs have instead offered Defendant Rufo’s definition of “DEI” and an
anecdotal story about a student-painted mural that was “destroyed.” This Court will
examine both of Plaintiffs’ arguments concerning this evidence, starting with
Defendant Rufo’s statement.
With respect to Defendant Rufo’s statement, Plaintiffs point to his co-
authored “study where he defined DEI as a set of ‘interrelated concepts.’ ” ECF No.
5 at 17. This statement only goes to show that Defendant Rufo apparently believes
that “DEI” includes some of the ideas listed under section 1007.25(3)(c). But his
definition of “DEI” does nothing to show how he construes the challenged provision
or plans to enforce it, if at all, against individual professors or students.
Moreover, Plaintiffs’ source for this quotation also permits a reasonable
inference that Defendant Rufo does not intend to enforce the challenged provision
against individual professors’ classroom speech. See ECF No. 5 at 17 n.13.
Specifically, this source also includes model legislative text, the purpose of which is
21
described as ensuring “that public universities succeed in their mission to promote
the search for truth and knowledge while maintaining academic freedom and
integrity, without being transformed into factories of ideological conformity.”
Abolish DEI Bureaucracies and Restore Colorblind Equality in Public Universities,
Manhattan Institute (Jan. 23) at 2, available at https://media4.manhattan-
institute.org/sites/default/files/model_dei_legislation013023.pdf (last visited Oct.
31, 2023). Notably, the model legislation that Defendant Rufo endorses specifically
excludes restrictions on funding for academic course instruction, registered student
organizations, guest speakers or performers, etc. Id. (“For the avoidance of doubt,
nothing in this section shall be construed to cover or affect an institution of higher
education’s funding of . . . academic course instruction, research and creative works
by the institution’s students, faculty, or other research personnel, and the
dissemination thereof, [etc.].”).
Similarly, with respect to model legislation to limit mandatory diversity
training, the text that Defendant Rufo endorses specifically excludes “an academic
course offered for credit” and “activities of a registered student organization
affecting only its members” from the model legislation’s definition of and proposed
restrictions on “diversity training.” Id. at 7. In other words, the fact that Defendant
Rufo has endorsed legislative text that explicitly excludes scholarship and teaching
from its various restrictions suggests that he would, in practice, not construe the
22
challenged provision at issue here in the manner that Plaintiffs suggest—namely, as
grounds for punishing or firing professors based on their in-class speech.
Plaintiffs also cite an anecdotal example to demonstrate that the Board of
Trustees intends to enforce the general education requirements against them in the
manner that they fear. Specifically, Plaintiffs provide an affidavit from Professor
Anderson which details how her art class painted a mural on a New College campus
building in the Fall of 2022. See ECF No. 22-1 at 5. The mural, which “reflected
[her students’] multi-cultural experiences,” “was painted over” this summer. Id.
Professor Anderson believes “that the mural was destroyed by the current New
College administration because the themes portrayed conflicted with the restrictions
against DEI and other viewpoint based prohibitions adopted in SB 266.” Id.
According to Professor Anderson, this incident “suggests that [she] will not be
granted permission for similar access to college facilities in the future.” Id. at 6.
Do Plaintiffs offer any additional evidence to substantiate Professor
Anderson’s opinion about (1) why the mural was painted over, (2) who made the
decision to paint over the mural, or (3) whether she can assign a similar mural project
to her students in the future? No, they do not. Instead, Plaintiffs effectively ask this
Court to speculate that the Board of Trustees directed that the mural be painted over
because of what it portrayed and that they will not permit Professor Anderson to
engage in similar projects in the future because the message of her student’s artwork,
23
which—according to Professor Anderson—will “inevitably conflict with the
restrictions in SB 266.” Id. at 5. But a Plaintiff’s suspicions are not evidence—nor
do they permit this Court to find standing based on supposition alone.
Finally, to demonstrate that their self-censorship in the face of this challenged
provision is reasonable, Plaintiffs suggest that tenure decisions are now in jeopardy
based on whether professors run afoul of the general education requirements. Again,
Plaintiffs point to no evidence demonstrating whether the Board of Trustees or the
President of New College will construe the statute to provide a sufficient basis to
punish an individual professor’s speech associated with scholarship or teaching.
Moreover, while the Legislature has recently changed the way tenure works in
Florida, see section 1001.706(6)(b), Florida Statutes (2023), the Board of Governors
has explicitly prohibited considering a professor’s viewpoint while conducting post-
tenure review. See Board of Governors Regulation 10.003(3)(b), available at
https://www.flbog.edu/wp-content/uploads/2023/03/10.003-Post-Tenure-Review_0
32923.pdf (last visited Oct. 31, 2023) (“The review shall not consider or otherwise
discriminate based on the faculty members’ political or ideological viewpoints.”).
Absent other evidence, including public records or statements of the party opponents
regarding enforcement of the law at issue, this Court cannot simply assume that
Plaintiffs’ fears are reasonable in light of the general authority of the Board of
Trustees to punish violations of state law or engage in post-tenure review of faculty.
24
3
For these reasons, Plaintiffs have failed to establish, through affidavit or other
evidence, that their self-censorship in the face of the challenged provision, section
1007.25(3)(c), is objectively reasonable based on this record and that any injury they
have suffered is traceable to the conduct of any Defendant. Instead, Plaintiffs’ scant
evidence demonstrates only that they subjectively fear potential consequences that
may come about based on the general hostility toward certain viewpoints that
specific state officials have expressed. Plaintiffs’ theory of standing is entirely too
speculative to entitle them to seek preliminary injunctive relief. They have failed to
meet their burden of proof and therefore their motion challenging the general
education requirements is due to be denied for lack of standing.
Next this Court examines Plaintiffs’ standing to challenge the funding
provision.
B
Plaintiffs also allege the funding provisions violate the First and Fourteenth
Amendments because they unconstitutionally discriminate against funding speech
or providing access to campus facilities based on viewpoint discrimination, and
because the law is drafted in such a way that a person of ordinary intelligence would
not know what is prohibited.
25
Here, the Professor Plaintiffs fear that “no funding” means “no salary” if their
classroom speech or research runs afoul of the prohibited viewpoints or subject
matter. And the Student Plaintiffs fear that the funding prohibition’s carve out for
student organizations will be applied to them in an unconstitutional manner such that
their student organizations will lose access to funds and campus facilities or be
disbanded altogether.
Again, with respect to these Plaintiffs’ standing to challenge this provision,
the questions before this Court are twofold. Namely, (1) whether Plaintiffs’ injuries
are objectively reasonable based on the evidence in this record, and (2) assuming
arguendo that Plaintiffs can demonstrate an injury-in-fact, whether they have met
their burden to establish that such injury is traceable to any of the Defendants’
conduct. And again, to answer these questions, this Court must examine the
challenged provision at issue and explain how this statutory scheme works together.
1
With respect to the funding provisions, SB 266 amended section 1004.06, in
relevant part, to expand the prohibition on spending public funds for certain
programs. Specifically, section 1004.06(2) now prohibits state universities from
expending “any state or federal funds to promote, support, or maintain any programs
or campus activities that (a) violate s. 1000.05; or (b) advocate for diversity, equity,
and inclusion, or promote or engage in political or social activism, as defined by
26
rules of the State Board of Education and regulations of the board of Governors.” §
1004.06(2), Fla. Stat. (2023). This section includes a carve out for “student fees to
support student-led organizations” and “use of institution facilities by student-led
organizations,” “notwithstanding any speech or expressive activity by such
organizations that would otherwise violate” section 1004.06(2). Id. In other words,
student-led organizations that, for example, promote or engage in political or social
activism, like New College’s chapter of Turning Point USA,6 will not be denied
funding or access to campus facilities based on their speech or expressive activity if
such funding or access is granted by written school policy.
In addition, section 1004.06(3) provides an exception to the funding
prohibitions for “programs, campus activities, or functions required for compliance
with general or federal laws or regulations,” or “for obtaining or retaining
institutional or discipline-specific accreditation with the approval of either the State
Board of Education or the Board of Governors,” or “for access programs for military
veterans, Pell Grant recipients, first generation college students, nontraditional
students, ‘2+2’ transfer students from the Florida College System, students from
6 Turning Point USA New College’s constitution and bylaws are available on New
College’s publicly available website and provide that the mission of this organization is “to educate
students about the importance of fiscal responsibility, free markets, and constitutional rights
through innovative campus activism and non-partisan, thought-provoking discussion.” See
Turning Point USA New College Constitution/Bylaws, available at
https://novoconnect.ncf.edu/organization/tpusanewcollege (last visited Oct. 31, 2023).
27
low-income families, or students with unique abilities.” § 1004.06(3), Fla. Stat.
(2023). Finally, the Board of Governors must adopt regulations to implement this
section. § 1004.06(4), Fla. Stat. (2023).
So, what does this statute do? First, with certain exceptions, it prohibits New
College from spending public funds7 “to promote, support, or maintain” certain
programs or campus activities that violate section 1000.05, Florida Statutes, or to
“advocate for diversity, equity, and inclusion, or promote or engage in political or
social activism.” Second, it grants the Board of Governors authority to define
“diversity, equity, and inclusion” and “political or social activism.” Third, the statute
contemplates that New College will implement its own policies or regulations—if it
hasn’t already—to determine how to allocate funds and facility access to student-led
organizations. Based on the plain language of the statute, these institutional policies
must be viewpoint-neutral. And it grants the Board of Governors authority to
“implement this section.” At this juncture, neither side has presented any evidence
demonstrating that either the Board of Governors or the Board of Trustees have taken
any action to implement or enforce these provisions.
7 Of course, the statute allows New College to spend private funds to support these
programs or campus activities.
28
Accordingly, having described the relevant statutory scheme, this Court again
turns to Plaintiffs’ standing arguments with respect to challenging section
1004.06(2).
2
Plaintiffs again assert the record is sufficient to establish their standing to seek
a preliminary injunction against the funding provisions—namely, section
1004.06(2). But this Court harbors many of the same concerns outlined above with
respect to whether Plaintiffs have demonstrated that their asserted injuries are
objectively reasonable and traceable to the conduct of the Defendants. Plaintiffs’
fears can be generally grouped in two categories—namely, how these provisions will
impact their organizations’ abilities to continue to exist on New College’s campus
and how these provisions will impact scholarship and teaching. This Court will
address each category in turn.
With respect to the Student Plaintiffs, Plaintiff Engels has provided a
declaration setting out her fears that a student organization for which she has
previously attended meetings—“Feminist Fridays”—may be disbanded. See ECF
No. 5-2 at 3. Likewise, Professor Plaintiff Hernandez asserts she is uncertain
whether she will continue to be able to act as a faculty sponsor of the New College
Club, “People of Color Union.” See ECF No. 5-1 at 5. But a plaintiff’s subjective
fear that their organization may be forced to disband is not an injury-in-fact. See
29
Clapper v. Amnesty Intern. USA, 568 U.S. 398, 409 (2013) (“[T]hreatened injury
must be certainly impending to constitute an injury in fact and . . . allegations of
possible future injury are not sufficient.” (cleaned up)); City of South Miami v.
Governor, 65 F.4th 631, 638 (11th Cir. 2023) (“And we have rejected the argument
that plaintiffs have standing based on their subjective fear of harm and its chilling
effect.” (citation and quotation marks omitted)). And Plaintiffs have offered no
evidence demonstrating the reasonableness of their fears concerning how the Board
of Governors and the Board of Trustees will enforce the student organization carve
out to section 1004.06(2).8 Indeed, the plain language of the statute suggests the
policies governing funding and facility access for student organizations must be
viewpoint neutral. See, e.g., § 1004.06(2)(a), Fla. Stat. (“Student fees to support
student-led organizations are permitted notwithstanding any speech or expressive
activity by such organizations which would otherwise violate this section . . . .”
(emphasis added)). Accordingly, Plaintiffs have not demonstrated that they have
standing to challenge the student-organization carve out to the funding provision.
8 Plaintiff Engels also does not assert that she even plans to continue attending Feminist
Fridays meetings, and thus, she has not demonstrated how she, individually, would be injured if
Feminist Fridays were disbanded. See, e.g., LaCroix v. Lee Cnty., 819 F. App’x 839, 842 (11th
Cir. 2020) (noting that, in a First Amendment case seeking injunctive relief, “the plaintiff must
still demonstrate an unambiguous intention at a reasonably foreseeable time to engage in a course
of conduct arguably affected with a constitutional interest”).
30
As for Plaintiffs’ standing to challenge the funding provision’s prohibition on
public expenditures for certain programs and campus activities including scholarship
and teaching, Plaintiffs again fail to point to record evidence to establish that any
injury related to the funding provision is objectively reasonable, certainly
impending, or traceable to the conduct of Defendants. To start, Plaintiffs frame their
asserted injuries as their subjective fears and resulting self-censorship or uncertainty
regarding what they can say in class. According to Plaintiffs, they fear that if their
classroom speech could be construed as advocating for diversity, equity, and
inclusion or as promoting social activism, then the Professor Plaintiffs’ salaries and
other public funding could be in jeopardy. See ECF No. 22-1 at 5 (“I am also
concerned about the risk of adverse funding decisions, including the cancellation of
courses or denial of course credit which may accompany the independent study
programs adopted by upper division students.”).
But Plaintiffs’ argument depends upon assigning the worst possible
construction of the statute to conclude that “no funding” for “programs or campus
activities” means cutting professors’ salaries based on their individual, in-class
speech. Not only is this reading of the statute unsupported by record evidence, but it
also makes little sense when read in conjunction with the general education core
course requirement provisions. Here, the Florida Legislature determined that certain
viewpoints and topics should be excluded from general education core courses—
31
however defined—and thus, may be taught instead in upper-level or more advanced
elective courses. But Plaintiffs ask this Court to construe the funding provision to
mean that, notwithstanding the shift of certain topics to upper-level elective courses,
these courses are always inappropriate and cannot be funded—through payment of
professor salaries—with public dollars.
At the hearing, counsel for the members of the Board of Governors and the
Board of Trustees offered competing definitions for “program” versus “general
education core courses,” which were not tethered to any statutory or regulatory
language and only seemed to confuse the issues further. But Plaintiffs’ counsel also
failed to identify any evidence suggesting that any of the Defendants intends to
construe and apply the funding provisions to cut salaries for professors based on
their speech in individual courses.
For what it’s worth, the definitions for “degree program” and “program
major” in Board of Governors Regulation 8.011(2) appear to undercut Plaintiffs’
reading of the funding provisions—namely, that defunding “programs” means
cutting salaries for professors based on their speech in individual courses.
Specifically, a “degree program” is defined as “[a]n organized curriculum leading to
a degree in an area of study recognized as an academic discipline by the higher
education community, as demonstrated by the assignment of a Classification of
Instructional Programs (CIP) code by the National Center for Educational Statistics
32
or as demonstrated by the existence of similar degree programs at other colleges and
universities.” See Board of Governors Regulation 8.011(2)(a), available at
https://www.flbog.edu/wp-content/uploads/2022/06/Regulation8.011_Final_A
mended.pdf (last visited Nov. 1, 2023). Likewise, a “program major” is defined as
“[a]n organized curriculum offered as part or all of an existing or proposed degree
program,” and it must be “reasonably associated with the degree program under
which it is offered and shall share core courses with all the other majors within the
same degree program.” Board of Governors Regulation 8.011(2)(b), available at
https://www.flbog.edu/wp-content/uploads/2022/06/Regulation-8.011_Final_Am
ended.pdf (last visited Nov. 1, 2023). Notably, this regulation identifies “core
courses” associated with a program major to exclude the “common prerequisites as
defined in section 1007.25, Florida Statutes.” Id. Thus, it appears, based on this
regulation, that the Board of Governors could understand “program” to mean either
the organized study in a specific academic discipline that results in a certain level of
achievement—bachelor’s degree, master’s degree, doctorate, etc.—or the course of
studies for a particular academic field within your relevant degree program.
While certainly not dispositive, these definitions do not suggest that the Board
of Governors construes “program” to focus on individual courses or the professor’s
in-class speech during class time. Moreover, Plaintiffs offer no evidence to
demonstrate that either the Board of Governors or the Board of Trustees construes
33
the statute this way or plans to enforce it against individual professors. Indeed,
section 1004.06(2) says nothing about individual professors’ in-class speech. And
as this Court noted above, one of Plaintiffs’ sources in support of their motion
suggests that Defendant Rufo would not even agree with Plaintiff’s reading of the
statute. See Abolish DEI Bureaucracies and Restore Colorblind Equality in Public
Universities, Manhattan Institute (Jan. 23) at 2, available at
https://media4.manhattan-institute.org/sites/default/files/model_dei_legislation01
3023.pdf (last visited Oct. 31, 2023) (proposing model legislation that exempts
funding of academic course instruction, among other things, from defunding
provision).
Absent any rulemaking by the responsible parties or other facts demonstrating
their plan to enforce the challenged provision against Plaintiffs to eliminate their
salaries or other funding, Plaintiffs’ fears that their salaries and research funding will
be cut based on their individual, in-class speech and not as a larger cut to an entire
major or department, are purely speculative. Accordingly, their motion as it relates
to the funding provisions is also due to be denied for lack of standing.9
9 Plaintiffs also include the non-profit organization, NCF Freedom, Inc. This organization
does not claim to be a student-led organization subject to the carve out for such groups in the
funding provisions. Instead, it claims it has associational standing on behalf of its professor and
student members and that it is directly injured, itself, by the challenged provisions because of fears
that its fundraising efforts and ability to solicit new members who are members of the New College
community will be impaired.
34
III
This Court recognizes that the average person might find the outcome in this
case frustrating. Here we have real professors who teach real subjects at a real school
where lawmakers and decisionmakers have demonstrated real hostility toward
certain ideas and viewpoints, and there is now a law that could or could not be used
to punish them. On the surface, there appears to be a real “case or controversy.” But
the law governing standing requires more than a generalized view of the interests at
stake, the responsible parties, and the possibility of some future consequence.
If you dislike a law or are afraid of possible future consequences, you cannot
simply invoke the jurisdiction of this Court based solely on how you feel or what
you believe may happen. Instead, you must meet your burden to establish standing.
To start, because none of the individual members who are plaintiffs in this action has
demonstrated standing, and because the organization has not provided evidence of any other
member who would have standing to sue, the organization lacks associational standing. Likewise,
the declaration filed in support of the organization by its President, Jonathan E. Miller, indicates
only that the organization “fears that it will be banned from accessing facilities owned by New
College of Florida even if invited to speak by students enrolled at New College.” ECF No. 5-3 at
5. But Mr. Miller does not indicate whether the organization has previously sought permission to
appear on campus, whether it has any pending student invitations, or whether it has any other plans
to appear on campus to solicit new members or fundraise. Accordingly, Mr. Miller’s subjective
fears, on their own, are insufficient to satisfy the injury-in-fact requirement. See, e.g., LaCroix,
819 F. App’x at 842 (noting that, in a First Amendment case seeking injunctive relief, “the plaintiff
must still demonstrate an unambiguous intention at a reasonably foreseeable time to engage in a
course of conduct arguably affected with a constitutional interest”). This organization must
demonstrate more than “a keen interest in the issue” to seek relief from this Court. Hollingsworth
v. Perry, 570 U.S. 693, 700 (2013). But NCF Freedom, Inc., has failed to do so and does not even
respond to Defendants’ arguments concerning the organization’s standing aside from a conclusory
statement regarding associational standing. See ECF No. 22 at 10. Accordingly, NCF Freedom,
Inc., also lacks standing to pursue preliminary injunctive relief.
35
And to do so, you must be able to meet the ever-evolving standards that bind this
Court and clear new hurdles as they arise. See, e.g., Jacobson v. Fla. Sec’y of State,
974 F.3d 1236, 1270 (2020) (Pryor, J., dissenting) (“In holding that the district court
lacked jurisdiction to hear any of the plaintiffs’ claims, the majority opinion contorts
beyond recognition Supreme Court precedent addressing the injury-in-fact,
traceability, and redressability requirements for standing . . . . As a result, the
majority opinion ends up imposing entirely new or substantially heavier burdens on
plaintiffs who seek to challenge state election laws, burdens that the Supreme Court
has never recognized.”).10
10 Indeed, this Circuit’s standing jurisprudence has morphed throughout the past few years,
starting with Lewis v. Governor of Alabama, 944 F.3d 1287 (11th Cir. 2019), then Jacobson and
Support Working Animals, Inc. v. Governor of Florida, 8 F.4th 1198 (11th Cir. 2021). See also
Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 957–58 (11th Cir. 2020) (Jordan, J.,
dissenting) (“That we need to resolve what is essentially a policy question to determine the
boundaries of our subject-matter jurisdiction reminds us how far standing doctrine has drifted from
its beginnings and from constitutional first principles. Standing, as we know it today, was a
twentieth-century innovation.”). Judge Jordan opined that the majority in Lewis “made standing
doctrine even more difficult to understand or defend[,]” and suggested that “[i]f the plaintiffs [in
Lewis] lack standing, it may be time to rethink the causation and redressability components of
Article III standing.” Lewis, 944 F. 3d at 1326 (Jordan, J., dissenting). Perhaps the starkest example
of how standing has shifted in this Circuit is Support Working Animals, a case in which the court
held that the inability to trace the plaintiffs’ injuries to a state actor responsible for enforcing the
challenged law doomed plaintiffs’ challenge to that law. See Support Working Animals, Inc. v.
Moody, Case No.: 4:19cv570-MW/MAF, 2020 WL 10728640, *1 (N.D. Fla. Jun. 12, 2020) (“In a
prior Order, this Court held, in part, that Plaintiffs had standing to sue Defendant in this action
because Defendant’s statutory duty to superintend and direct Florida’s state attorneys constituted
a sufficient connection to the enforcement of the challenged provision of Florida law. Since that
time, however, new binding precedent has emerged which instructs that such supervisory authority
is insufficient to render state-level Florida authorities proper defendants in cases like the present
one.”). In effect, the inability to demonstrate traceability foreclosed those plaintiffs’ ability to
challenge the provision at issue—shuttering their businesses (indeed, an entire industry)
indefinitely—until the Florida Legislature chose to pass implementing legislation and designate
36
Frustrating as it may seem, there is a path to establish standing so long as a
plaintiff can present enough evidence to clear the hurdles in their way.11 In a case
like this where free speech is at issue, a plaintiff could point to a law that directly
targets them with disciplinary action—and thus, results in their chilled speech—to
demonstrate a concrete injury that is both objectively reasonable and tied to the
conduct of the defendants. See, e.g., Wollschlaeger, 848 F.3d at 1303. Or, in the
absence of some law that directly targets their speech, a plaintiff could point to an
implementing regulation—like the plaintiffs did in Pernell—that enforces a
challenged statute and orders the decisionmakers to punish violators, and thus,
the responsible “enforcer.” Moreover, at the same time the law is shifting, so too have lawmakers
refined the way that they craft laws, often with the apparent intent and result of limiting any avenue
for judicial review in some cases. See Link, 2020 WL 2984726, at *2 n.2 (“Texas has employed
an array of strategems designed to shield its unconstitutional law from judicial review . . . . The
clear purpose and actual effect of S.B. 8 has been to nullify this Court’s rulings.” (quoting Whole
Woman’s Health v. Jackson, 142 S.Ct. 522, 543–45 (2021) (Roberts, C.J., concurring in part and
dissenting in part)).
11 Nonetheless, this Court recognizes that the rigor employed in judging one plaintiff’s
standing versus another’s can often seem like one plaintiff is allowed to run the 200 meter dash
while the other is forced to compete in the 400 meter hurdles just to get through the courthouse
doors. Compare Biden v. Nebraska, 143 S. Ct. 2355, 2385 (2023) (Kagan, J., dissenting) (“The
Court’s first overreach in this case is deciding it at all. Under Article III of the Constitution, a
plaintiff must have standing to challenge a government action. And that requires a personal stake—
an injury in fact . . . . The plaintiffs in this case are six States that have no personal stake in the
Secretary’s loan forgiveness plan. They are classic ideological plaintiffs: They think the plan is a
very bad idea, but they are no worse off because the Secretary differs. In giving those States a
forum—in adjudicating their complaint—the Court forgets its proper role. The Court acts as
though it is an arbiter of political and policy disputes, rather than of cases and controversies.”) with
Lewis, 944 F.3d at 1309 (Wilson, J., dissenting) (“[B]ecause the majority applied too strict a
standard when evaluating traceability and redressability at the pleading phase, I find it necessary
to clarify the appropriate analysis of those elements.”).
37
results in chilled speech. See, e.g., Pernell, 641 F. Supp. 3d 1218. Or, in the absence
of either a statute that directly targets the plaintiff’s speech or a regulation that orders
punishment for speech in violation of state law, a plaintiff could point to other
evidence that the defendants intend to enforce the statute at issue against their speech
in the very manner that they fear. See, e.g., Link, 2023 WL 2984726, at *5. But
Plaintiffs in this case have identified none of these things, and thus, they have failed
to demonstrate their standing for purposes of the preliminary injunction motion.
For these reasons, Plaintiffs’ motion, ECF No. 5, is DENIED for lack of
standing.
SO ORDERED on November 3, 2023.
s/Mark E. Walker ____
Chief United States District Judge
38