The Florida Effect

Introduction

Under Governor Ron DeSantis, Florida has faced the country’s most intensive rollback of Americans’ right to freely express themselves. Recent legislative and policy changes impact individuals’ ability to receive and share information online, provide an open and pluralistic education system for their children, participate in peaceful protest, and engage in artistic expression. Governor DeSantis has championed these laws even as he uses the rhetoric of freedom as a political rallying cry.¹

These developments are important to Floridians — a population of over 22 million in the third-most-populous and fastest-growing state in the nation.² The state’s recent glut of anti–LGBTQ+ laws and policies have prompted some LGBTQ+ Floridians to flee.³ One Florida parent, who identified both themself and their children as LGBTQ+, told media outlets that “we just low grade don’t feel safe” under such laws.⁴ In response to reporting on this exodus, a DeSantis spokesman tweeted an emoji response: a hand waving goodbye.⁵

Librarians and teachers also appear to be rapidly departing, or choosing not to move to the state for jobs. A 2023 tally from the Florida Education Association marked 5,294 vacancies in Florida public schools as of January 2023, up nearly 300 percent from the month DeSantis took office.⁶ While there are several reasons for this shortage, including the pandemic, one major contributing factor appears to be the campaign of demonization of teachers and librarians, egged on by the state’s elected leaders. The current vacancies have been described as “a critical shortage,” “a colossal shortage,” and the worst shortage in Florida’s history.⁷ To address it, several Florida school districts have announced that they are looking into programs to bring in teachers from other countries.⁸ The DeSantis Administration has dismissed reporting on the shortage as “hysteria” goaded by teachers’ unions⁹—even while introducing radical solutions, such as a proposal to allow military veterans and first responders to teach without a bachelor’s degree.¹⁰

Some companies have begun walking back their involvement with the state. In May 2023 Disney announced that it had scrapped a plan to build a $1 billion office complex in Orlando, citing “changing business conditions”—language widely interpreted as a reference to DeSantis’s efforts to punish the corporation for its advocacy against his “Don’t Say Gay” law, which restricts classroom instruction on sexual orientation and gender identity in K–12 schools.¹¹

The developments in Florida are also important for the country at large. James Nash, a former spokesman for the National Governors Association, told The Washington Post in early 2023, “Florida now seems to be the center of gravity for a lot of conservative policymaking.”¹² As a political bellwether state and an incubator for conservative ideas, Florida’s legislative proposals and DeSantis’s policies have been picked up and replicated around the nation, providing a governance blueprint for how to suppress large portions of Americans’ speech in the name of prosecuting the new culture war.¹³ A few examples:

Florida’s 2021 Combatting Violence, Disorder and Looting and Law Enforcement Protection Act, which PEN America previously reviewed and found to be a prime example of an “anti-protest” law, inspired similar bills in 15 states¹⁴
Florida’s “Don’t Say Gay” law, which has inspired similar laws in North Carolina, Arkansas, Iowa, Kentucky, and Indiana¹⁵
Florida’s law holding librarians criminally liable for making “obscene” library books available to children, which has spawned similar proposals in 20 states, from Arkansas to Wyoming¹⁶
Florida’s 2023 Protection of Children Act restricting “adult live performance”, which informed nearly identical anti-drag legislation in North Carolina.¹⁷

Within the state, the Florida legislature is following the lead of DeSantis. Commentators have cited the governor’s “hand-in-glove” relationship with the legislature as a major driver for both the speed and far-reaching nature of Florida’s new legislation.¹⁸ In the past few years, DeSantis’s policy pronouncements have been commonly and swiftly followed by legislative proposals that seek to enshrine governor’s preferences into law, pushing the limits of executive power for ideological control. In February 2023, for example, DeSantis said at a roundtable that he wanted to make it easier to sue media outlets for defamation.¹⁹ Days later, Florida legislators proposed a law to do just that. Although in this case the legislation died, Governor DeSantis’s wish, it seems, is often the Florida legislature’s command.²⁰

The governor’s 2024 presidential aspirations is likely contributing to this dynamic. In the spring 2023 legislative session, Florida’s legislature passed about 200 bills into law. Many of these new laws–including the most consequential–were passed amidst the backdrop of DeSantis’s 2024 presidential campaign. One Florida journalist described this uncommonly large haul as “a care package for his coming campaign,” albeit one with “wide-ranging effects on Floridians,” while another article called it “a conservative wish list.”²¹

In May 2023, the Florida House speaker, Paul Renner, summarized the legislative session by saying, “The governor can rightly claim credit for having one of the biggest sessions certainly in Florida history.”²² GOP state senator Joe Gruters told Time magazine: “We’ve had conservative leadership in Florida for the past 23 years, but we’ve passed more conservative bills in the past two years than the previous 20, and more this year than the past 22. It’s a rocket ship, a steam engine.”²³

Many of DeSantis’s signature legislative priorities—from banning drag shows and ethnic studies courses to the “Don’t Say Gay” law—have significant and negative implications for freedom of expression in the state. The legislative proposals the Governor has championed tend to do at least one of the following:

Explicitly criminalize constitutionally protected activity by expanding the definitions of unprotected speech and expression, e.g. by shifting the definitions of “defamatory” and “obscene”
Introduce vaguely defined speech or expression-related offenses and empower government actors to determine violations and consequences
Restrict speech to viewpoints sanctioned by the state government
Obligate independent actors to disclose more information to government entities
Increase penalties for expression
Decrease penalties for those violating others’ right to free expression.

Even when these bills do not pass or the laws are halted by judicial challenge, they can still send a powerful message—that the state disapproves of certain viewpoints, means of expression, or even people. And a failed bill may still be copied in other states’ legislative proposals.

DeSantis has pursued many of these policies as part of an explicit new culture war, which he frames as pitting conservative values against “woke” policies and perspectives. His rallying cry holds that Florida is “where woke goes to die.”²⁴ He defines wokeness as “basically a war on the truth.”²⁵ The truth is, of course, in the eye of the beholder—a democracy determines “truth” through discussion and debate.²⁶ Yet many of DeSantis’s signature policies—such as the “Don’t Say Gay” law and the effort to ban “critical race theory”—empower the government to shut down such discussion.

Several of DeSantis’s proposals have drawn substantial dissent even among typical conservative allies and business groups. Libertarian groups such as Americans for Prosperity have criticized his efforts to dramatically increase the power of the government.²⁷ The Cato Institute called the 11th Circuit’s invalidation of Florida’s social media content and transparency law a “win for the right to moderate online content.”²⁸ But many on the right have warmed to DeSantis’s policies and his self-created persona as a conservative warrior fighting liberal elitism.

This report is not intended to be a comprehensive index of all recent Florida state laws and legislative proposals implicating free expression. Instead, it provides in-depth analysis of key pieces of legislation across a range of issues to demonstrate the robust scope of the state’s attacks on speech, and identifies commonalities in the strategies and rhetoric being used to erode free expression in the state and across the country. The First Amendment is not liberal or conservative, elitist or populist—it enshrines constitutional rights that are fundamental to our democracy. Today in Florida, as a deliberate and intended consequence of many of DeSantis’s policies, these constitutional rights are under heavy strain.

Artistic Freedom: Drag Shows — A Canary in A Coal Mine

Governor DeSantis has established his conservative bona fides in large part through his reputation as a culture warrior, a framing that has also been embraced by some Florida state legislators, who portray themselves as fighting “wokeism” and “the sexualization of children.” The latter crusade often draws on traditionally homophobic or transphobic tropes, with Republicans depicting events like drag queen story hours as places where deviant adults groom children. One legislative bulwark of this campaign is the Protection of Children Act (SB 1438), which was passed and signed into law in May 2023, though it immediately faced a legal challenge and was enjoined.

Anatomy of a Law

The Protection of Children Act extends the state’s obscenity laws to apply to “adult live performances.” The law defines such performances as any presentation in front of a live audience that includes nudity, sexual conduct, sexual excitement, sexual activities, or the “lewd exposure” of “imitation” genitals or breasts. While the law has a carve-out for works of “serious literary, artistic, political, or scientific value”—which appears intended simply to help the law pass constitutional muster—it leaves the determination of this value up to government entities, such as local police departments. A person or business that “knowingly exposes” a minor to such a presentation may see its license revoked, be slapped with $5,000 to $10,000 fines, or face first-degree misdemeanor charges—punishable in Florida by up to a year of imprisonment.²⁹

The law states the following:

(1) (a) “Adult live performance” means any show, exhibition, or other presentation in front of a live audience which, in whole or in part, depicts or simulates nudity, sexual conduct, sexual excitement, or specific sexual activities as those terms are defined in s. 847.001, lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts when it:

Predominantly appeals to a prurient, shameful, or morbid interest;
Is patently offensive to prevailing standards in the adult community of this state as a whole with respect to what is suitable material or conduct for the age of the child present; and
Taken as a whole, is without serious literary, artistic, political, or scientific value for the age of the child present.

(b) “Knowingly” means having general knowledge of, reason to know, or a belief or ground for belief which warrants further inspection or inquiry of both:

The character and content of any adult live performance described in this section which is reasonably susceptible of examination by the defendant; and
The age of the child.

(2) A person’s ignorance of a child’s age, a child’s misrepresentation of his or her age, or a bona fide belief of a child’s consent may not be raised as a defense in a prosecution for a violation of this section.

(3) A person may not knowingly admit a child to an adult live performance.

(4) A violation of subsection (3) constitutes a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 127 775.083.

Analysis

While SB 1438 has been touted as a broad “safety” measure and does not explicitly name drag performers or venues, it must be understood within the growing anti-drag and anti–LGBTQ+ climate in the state. Governor DeSantis’ administration began cracking down on drag shows before the state legislature passed this law. Between July 2022 and March 2023, the governor filed three separate complaints against local businesses, citing a 1947 state Supreme Court case that found “men impersonating women” constitutes a public nuisance and arguing that the shows expose children to “simulated sexual activity, and lewd, vulgar, and indecent displays.”³⁰ In particular, in a 17-page complaint against the Hyatt Regency Miami hotel’s planned Drag Queen Christmas event in December 2022, DeSantis explicitly targeted the venue’s liquor license. Shortly thereafter, Republican legislators introduced SB 1438, which uses the same tactic of targeting the licenses of venues that purportedly expose children to “lewd” performances.³¹

Governor DeSantis’s willingness to use the powers of the executive branch to go after drag shows specifically, based on the argument that drag shows expose children to “indecent displays,” sends a clear signal about how he expects local police departments throughout Florida to interpret the law. Remarks from legislators who support the bill do the same. Representative Randy Fine, who filed and sponsored the bill in the Florida House of Representatives, has filed additional bills with the avowed goal of combatting “radical ‘transgender’ theory” and of ending the gateway propaganda to this evil‘—Drag Queen Story Time.’”³² In other public remarks, Fine explained his motivations for sponsoring the Protection of Children Act, the senate version of his proposed House bill, by saying: “I don’t think it’s appropriate to take children to sex shows. And unfortunately, we have a meaningful percentage of our country who at this point believe taking a six-year-old to see a man dressed like a stripper, or I guess a woman dressed like a stripper and grinding their body parts into them is appropriate.”³³ That Rep. Fine begins his explanation with a thinly veiled reference to drag shows before adding that his law would also apply to female strip shows provides a similarly clear indication of his motivations.

The Protection of Children Act comes amid a slate of anti–LGBTQ+ legislation in the state, from DeSantis’s trademark “Don’t Say Gay” law, which limits discussion of LGBTQ+ topics in schools, to anti-trans bathroom bills, which apply the same rhetoric of “obscenity” and “sexuality” to more explicitly anti–LGBTQ aims. In May 2023, Lambda Legal, the LGBTQ+ civil rights organization, called the passage of SB 1438, in a package alongside these laws, “the latest step in a sweeping campaign of hate and discrimination by the DeSantis Administration against LGBTQ+ people for crass political gain.”³⁴ Since January 2023, laws restricting drag shows and other gender-nonconforming performances and styles of dress have been proposed in at least 14 states.³⁵

While the Florida legislature was careful to draft SB 1438 without explicit reference to drag shows, this background clarifies that the law is intended to apply most squarely to drag. Yet drag performances, like any performances, are protected under the First Amendment and can be restricted only under narrow sets of circumstances that simply do not apply here.³⁶

In this way, anti-drag legislation like SB 1438 shares substantial commonalities with book bans—many campaigns to ban books wield similar allegations of “sexual content” and “inappropriate for children” as cudgels against LGBTQ+ content, relying on the inference that LGBTQ+ people and expression are harmful.³⁷ By doing so, anti-drag crusaders and book banners seek to have it both ways: to have their laws and policies be viewed as neutral by the courts while giving enforcers substantial discretion to deploy these laws specifically against LGBTQ+ content.

The U.S. Supreme Court has repeatedly recognized the governmental interest in “protecting children from harmful materials” and has held that legislatures need not have a “scientifically certain criteria” in determining obscenity standards for minors. But the history of the court’s understanding of this legislative discretion reveals that when the court has upheld restrictions, it has done so only in very narrow circumstances related to pornographic content.³⁸ A determination that material is obscene for minors requires that it be, “in some significant way, erotic,”³⁹ and speech cannot be censored solely to “protect the young from ideas or images that a legislative body thinks unsuitable for them.”⁴⁰ Furthermore, the court has made clear that the interest in protecting children from harmful materials does not justify overly broad suppression of speech addressed to adults.⁴¹ The court has been vigilant against the expansion of socially-constructed ideas of “obscenity” into legal definitions, or the conflation of subjective labels like “adult,” “sexual,” and “lewd” into legal categorization for protecting speech.⁴²

Yet this is precisely what SB 1438 seeks to do in its attempts to shoehorn drag into a category of unprotected speech to which it does not belong. The law attempts to evade the First Amendment protections to which drag is entitled by deceptively framing basic elements of drag as fundamentally sexual in nature. For example, the law’s reference to “prosthetic or imitation genitals or breasts” sexualizes common costuming elements of drag, making the rhetorical leap to “obscenity” easier and clearing a path for the misapplication of First Amendment doctrine. Moreover, the draconian consequences for violations raise the stakes of any potentially controversial activity, meaning that even such a patently unconstitutional bill may have a broad chilling effect on long-protected forms of expressive conduct while it winds its way through the courts.

The fear that this law would be wielded against drag performances specifically is at the heart of the current legal injunction against its enforcement. In June 2023, almost immediately after the law went into effect, Hamburger Mary’s restaurant in downtown Orlando sued. The restaurant hosts drag performances, including Sunday shows that it advertises as “family friendly’.”⁴³ In its filing, it argued that the law infringed upon its First Amendment rights.⁴⁴

The District Court Judge found that Hamburger Mary’s was likely to prevail on the merits of its complaint and filed a temporary restraining order against the law. The judge wasted no time cutting to the core of the matter, writing in the first paragraph of his decision: “The state claims that this statute seeks to protect children generally from obscene live performances. However, as explained infra, Florida already has statutes that provide such protection. Rather, this statute is specifically designed to suppress the speech of drag queen performers.”⁴⁵

Regardless of how the courts rule, the Act has already chilled LGBTQ+ expression in the state. In the months since its passage, LGBTQ+ organizations and local government entities across Florida have scaled back or scrapped family-oriented Pride celebrations for fear of retribution. In Port Lucie, organizers preemptively canceled the city’s planned parade and restricted all other affiliated events to ages 21 and up. In a statement on their website, organizers cited concerns over the state’s “political climate,” explaining that city administrators “required” the change “on the side [of] caution.”⁴⁶ In Lake County, the first-ever Pride celebration lost over $7,000 in sponsorships following the passage of the Protection of Children Act, a blow that organizer Danielle Olivani attributed to concerns over the event’s lineup of drag performers. In an interview with Orlando’s WKMG-TV, Olivani explained: “It’s taken us a little over a year just to get this permit for Pride. Our lineup is primarily all-day drag artists, thus causing us to find new performers, possibly a new venue.”⁴⁷ While Pride celebrations hosted by major corporations like Disney have persisted,⁴⁸ smaller organizations are increasingly questioning such events’ long-term viability. In July 2023, Drag Story Hour, a national nonprofit founded in 2015 to promote inclusive storytelling, announced that it was shuttering its only Florida chapter, in Miami, citing concerns over the “physical safety of our storytellers.”⁴⁹

Supporters of SB 1438 have contested the notion that the law disproportionately targets LGBTQ+ communities and performers, positioning it as a broad anti-child-abuse law and contrasting it with laws in other states that lay out explicit definitions of drag performances or performers.⁵⁰ This is the argument that the District Court judge who enjoined the law immediately dismissed as a fig leaf for the law’s true motivations—but such framing still opens the door for future rulings that ignore the law’s intentions of targeting LGBTQ+ people. And even an interpretation that applies to performance broadly would be disastrous for artistic expression.

In the absence of clear and specific examples of events that fall under the Act’s definition of obscenity for minors, the bill, in the words of Democratic state Representative Anna Eskamani, “conforms the test [of obscenity] to the bill sponsor’s preference and provides no clear definition of how it should actually be applied.”⁵¹ In its preliminary injunction, the court found that the law was unconstitutionally vague and “facially content-based” to target specific types of live performance.⁵²

The core of the law’s definition of “adult live performance”—that it “depicts or simulates nudity, sexual conduct, sexual excitement, or specific sexual activities” even in part—can be stretched outrageously far. Terms like “nudity” and “sexual conduct” are already defined by Florida’s obscenity statute, and the Protection of Children Act incorporates these definitions. But that does not mean that the preexisting definitions are clear enough to prevent abuse under this law. Take, for example, sexual conduct, which the obscenity statute defines as “actual or simulated sexual intercourse, deviant sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual or simulated lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.”⁵³

In the context of a performance, what does this definition prohibit? How many dance performances might fall within these descriptions? How many plays—be they Shakespeare or Sondheim—include a bawdy scene? How many dances include potential physical contact between clothed chests or hips? The problem deepens when one considers “lewd exposure”.. Could the law deem cultural performances that expose the stomach or chest the legal equivalent of child abuse? Defenders of the law will point out that it contains carve-outs for the artistic merit of the performance as a defense against this uncertainty. But the artistic merit of a performance is inherently subjective—as Justice John Marshall Harlan once put it, “One man’s vulgarity is another’s lyric.”⁵⁴

It’s useful to remind people that even if this bill were “merely” an anti-obscenity law, such laws have often been deployed against free expression. Lenny Bruce, the legendary American comic, was repeatedly arrested in the 1960s and charged with obscenity for his stand-up routine.⁵⁵ In 1990, Florida prosecutors brought obscenity charges against the rap group 2 Live Crew—relying on the same definitions of obscenity as the Protection of Children Act—and a local Florida sheriff successfully convicted a record store owner under similar charges.⁵⁶ The Act’s expansion of the obscenity charges into the realm of artistic expression is inherently unwise, dangerous, and destructive of First Amendment rights in Florida.

The Florida Effect

Florida is by no means the first or only state to consider laws targeting drag performances. Since January, lawmakers in 20 states have proposed what can be understood as anti-drag laws.⁵⁷ Some explicitly target drag shows. A measure in Nebraska that would bar all individuals under 19 from attending drag shows reads: “For purposes of this section drag show means a performance in which (a) The main aspect of the performance is a performer which exhibits a gender identity that is different than the performer’s gender assigned at birth using clothing, makeup, or other physical markers; and (b) The performer sings, lip syncs, dances, or otherwise performs before an audience for entertainment.”⁵⁸ Others take an approach that more closely resembles the Protection of Children Act, seeking to reclassify drag as “adult performance,” obscene, or sexually explicit. This broad language, popularized by the Florida bill, has gained steam as a legal strategy to help anti-drag bills pass constitutional muster. In Arkansas, state lawmakers swapped explicit mentions of drag for the broader language of “adult live performance” in their proposed anti-drag bill after the original drew pushback from the state’s LGBTQ+ communities and failed to gain support from Democratic legislators.⁵⁹

What is notable about Florida is the pace at which the state has advanced its legislation into law—at the time of publication of this report, it is one of only three states where anti-drag laws have successfully gone into effect, passed by the legislatures and approved within governors’ offices.⁶⁰ Since their passage, all three laws have been enjoined by lower courts in their respective states.⁶¹ Florida is the first state to challenge this legal limbo. On October 24, 2023, state officials appealed to the U.S. Supreme Court to block the broad injunction, which prevents any enforcement of the Protection of Children Act across the entire state. The state has argued that the injunction should apply only to Hamburger Mary’s, the restaurant that originally sued, and that the law’s sweeping restrictions should meanwhile apply to all other businesses in the state.⁶²

On November 16, 2023, shortly before this report went to press, the Supreme Court announced it would refuse to block the injunction, dealing the state a substantial defeat–though the overall case will continue to work its way through the courts.⁶³

However, three Supreme Court justices–Alito, Gorsuch, and Thomas–said that they would have granted the state’s request and allowed the law to take effect. With a Republican supermajority in the legislature and an active executive in DeSantis, the courts have functioned as the primary check on the state’s rampant attacks on free expression. But this judicial check is far from a sure thing.

It is notable that DeSantis’s initial crackdowns on drag shows, which spurred the Protection of Children Act, did not require new legislation at all. Instead, DeSantis first used the state’s existing blue laws and enforcement agencies to target host venues’ liquor licenses. In a 2022 complaint through the Florida Department of Business and Professional Regulation, the governor declared that drag performances violated a state public nuisance law banning content that is “manifestly injurious to the morals or manners of the people.”⁶⁴ As forms of artistic expression are increasingly branded with legally loaded labels like “obscene” and “morally injurious,” more states could act to nefariously apply public nuisance and zoning laws to restrict such performances across the country—even if the Protection of Children Act is eventually ruled unconstitutional.

Social Media Content and Transparency

In May 2021, Florida’s legislature passed SB 7072,⁶⁵ which Governor DeSantis promptly signed into law later that month. SB 7072 is a far-reaching law seeking to regulate social media companies’ activities—including new mandates on how these companies moderate their users’ posts. The law is currently in a state of legal limbo as the DeSantis Administration fights a federal court’s preliminary injunction against it. With its focus on the online activity of political candidates specifically, this law, if upheld, has the potential to radically transform the role of social media in the 2024 election cycle.

Anatomy of a Law

SB 7072 does the following:

Prohibits social media platforms from deplatforming a candidate for office’s account, using algorithms that prioritize or deprioritize posts, and shadow-banning⁶⁶ material about or by a candidate
Prohibits social media platforms from censoring, deplatforming, shadow-banning, or labeling the content of a journalistic enterprise based on the enterprise’s content (except obscene content). Journalistic enterprises are defined as entities in Florida that have an FCC broadcast license, operate a cable channel, or (most expansively) publish a certain number of words or hours of content with at least a certain number of users or viewers
Requires platforms to apply their moderation standards “in a consistent manner” and allows platforms to change their “user rules, terms, and agreements” only once every 30 days
Requires platforms to categorize algorithms used for post prioritization and shadow-banning and allow users to opt out of them
Requires social media platforms to publish their content moderation standards, inform users before changes are made, and, upon request, disclose the number of users who view the posts of the user making the request
Mandates that if a social media platform deplatforms, takes down the content of, or shadowbans any user (with the exception of obscene material), it must thereafter provide the user with a written, detailed explanation of the reason and “how the social media platform became aware” of the content, including “a thorough explanation of the algorithms used” within seven days.

The provisions barring platforms from moderating the content or accounts of political candidates are enforceable by the Florida Elections Commission and can result in fines of $250,000 per day. Remaining provisions may be enforced either by state governmental actors or through civil suits filed by private parties. Private actions can yield up to $100,000 in statutory damages per claim as well as a variety of other damages, including punitive damages.

Analysis

The law introduces a sweeping array of content moderation and transparency requirements that raise varying levels of concern for free expression. While some of the transparency requirements may pass constitutional muster, other provisions represent an outrageous—and nakedly partisan—government intrusion into social media’s content moderation policies. The most high-profile and far-reaching provisions are also the most controversial: namely, the provisions that prohibit social media platforms from imposing essentially any content moderation on political figures or journalistic enterprises.

The claim that social media platforms discriminate against conservative speech on the basis of ideology has become a major rallying cry for right-wing politicians, even absent evidence to back it up.⁶⁷ A 2021 report from New York University’s Stern Center for Business and Human Rights looked at the data for social media engagement across mainstream platforms and concluded that the claim that social media is censoring conservative voices was “a form of disinformation: a falsehood with no reliable evidence to support it.” The researchers further noted, “No trustworthy large-scale studies have determined that conservative content is being removed for ideological reasons or that searches are being manipulated to favor liberal interests.”⁶⁸

The research demonstrates that, at the very least and in regards to claims of anti-conservative bias on the basis of ideology, this legislation is a solution in search of a problem. But it goes beyond that. SB 7072 does several things very wrong.

Broadly, social media companies should ensure that people can read the words of those running for public office. The question of when it is appropriate to remove a political actor from a digital platform is one that PEN America has actively grappled with over the past few years. When discussion of removing Donald Trump from Twitter arose in 2019, PEN America opposed the removal, stressing the unique “public value” of speech by government leaders. As PEN America CEO Suzanne Nossel and Chief Program Officer of Free Expression Programs Summer Lopez wrote in The Washington Post, keeping the then-president on the platform “serve[d] to expose the threat he poses to democracy and to the public”, especially as the United States entered an election year.

At that time, we noted that “if the president began using Twitter to directly implore his backers to take up arms and wreak violence—a speech act that is considered unlawful incitement and outside the scope of First Amendment protection—that might be different; the public value of knowing the president had stooped so low would be outweighed by his stoking of lawless force.”⁶⁹

On January 6, 2021, this hypothetical became a reality as thousands of rioters stormed the Capitol to protest the results of the 2020 election.⁷⁰ Two days later, Twitter officially suspended Trump’s account “due to risk of further incitement of violence,” a decision that PEN America backed as not only well within Twitter’s First Amendment rights but as a justified response to Trump’s explicit efforts to use the platform to sow insurrection.⁷¹

Governor DeSantis clearly disagrees. In advocating for SB 7072’s prohibition against deplatforming political figures, he referenced Twitter’s decision to remove President Trump’s account in the aftermath of the January 6 insurrection as part of the rationale for the law.⁷²

Ultimately, Twitter’s actions with Trump demonstrate the value of ensuring that platforms are able to set their own policies and make determinations on content without being subject to state-mandated rules on moderation, even if they will not always make the right call. With SB 7072, however, Governor DeSantis and the Florida legislature have made it clear that they will allow no such discretion—they expect social media companies to permit falsehood and even calls to violence as long as those making such calls are candidates for office. Social media companies should set thoughtful standards and set a high bar for when to deplatform public figures—but SB 7072’s standard is none at all.

These same issues apply to the prohibition against moderating any “journalistic enterprise.” Platforms should certainly offer wide latitude to media organizations. But the absolute bar against content moderation is essentially an invitation for anarchy on the internet. Under SB 7072, a person or institution merely needs to offer enough viral content to be considered a “journalist enterprise”, and thus to receive an effective carte blanche to disseminate any dangerous falsehood while enjoying a legal shield against content moderation. The First Amendment protects the right of such political aspirants and media companies to utter their hateful and bigoted speech—but it does not oblige private companies to host it or allow it to be amplified without constraint.

Social media companies have challenged SB 7072, arguing that it unconstitutionally compelled their speech and interfered with their editorial rights under the First Amendment. The federal trial court issued an injunction against the law in August 2021, holding that it was likely unconstitutional under the First Amendment. Florida appealed that decision to the 11th Circuit, which affirmed the trial court’s ruling. Notably, the circuit court found that while the content moderation provisions were likely unconstitutional, many—though not all—of the law’s transparency provisions were likely permissible.⁷³

In September 2022, the DeSantis Administration appealed to the Supreme Court.⁷⁴ On September 29, 2023, the high court agreed to weigh in on the constitutionality of the parts of the Florida law that prevent social media platforms from moderating certain content. It also took up some of the transparency requirements, namely, those which require individual notice to users about each content moderation decision. The court will not review the statute’s other transparency provisions, leaving constitutional questions about them for another day.⁷⁵

Regarding the transparency requirements specifically, there is widespread recognition of the need for greater public transparency for platform policies and practices. Generally PEN America supports policies that promote transparency when adopted by social media platforms voluntarily. We have recommended that companies apply and publicize rules in real time. We have also recommended policies that would help users protect themselves from attack while also protecting free expression and stopping others’ behavior from chilling the speech of vulnerable groups.⁷⁶ For example, we highlighted in our No Excuse for Abuse report a set of steps that would enable users to document abuse, create rapid response teams of friends to help manage an account under attack, develop proactive filters and shields so that abuse is less likely to reach a user, and implement safety modes and a system of escalating penalties for repeated abuse.⁷⁷ Additionally, we have at times advocated for government and state actors to more explicitly encourage transparency and disclosures to the public, in alignment with theSanta Clara Principles on Transparency and Accountability in Content Moderation.⁷⁸

SB 7072 imposes several transparency and notification requirements on social media platforms, such as a mandate to publicly share detailed definitions of its determinations for deplatforming or downranking the posts of users and another mandate to inform users of changes to its terms and conditions before implementing them. Broadly, these transparency requirements represent good practices consistent with the demands for transparency long advocated by civil society. Most notably, the 2018 Santa Clara Principles on Transparency and Accountability in Content Moderation have called for companies to publish “clear and precise rules and policies relating to when action will be taken with respect to users’ content or accounts, in an easily accessible and central location.”⁷⁹

This is not to say that the law’s notification provisions are without problems. One provision would require that social media companies indicate to a user how it “became aware” of content that it chose to remove. Social media companies could easily interpret this requirement to mean that they must notify social media trolls and harassers when other users report their content, opening the door to retaliation and rendering platforms complicit in such harassment. Another provision requires platforms to enforce their content rules “in a consistent manner” and prevents them from changing their rules more than once every 30 days. It is unclear what entity would determine whether a platform is consistently enforcing its rules, but if that entity is the government in any form, such authority could be a recipe for government control over social media content. Moreover, preventing platforms from changing their rules more than once every 30 days constrains their editorial judgment in a manner that has significant First Amendment implications and would curtail platforms’ ability to respond to unanticipated threats or emergencies that their current rules may not contemplate, as happened for a few of the large platforms on January 6, 2021.

While some, though not all, of the transparency provisions of SB 7072 represent a reasonable starting point for policymakers, its content moderation provisions—namely, the requirements that platforms take a hands-off approach to moderating certain speech, depending on who utters it—represent a dangerous government intrusion into platform moderation that ultimately poses a substantial threat to free expression online.

The Florida Effect

Florida’s SB 7072 is often framed as the first of many efforts by Republican-majority legislatures to curb alleged social media bias against conservative viewpoints. In September 2021, four months after DeSantis signed 7072, Texas Governor Greg Abbott signed HB20, a broader content moderation bill that, among its many provisions, allows any state resident to sue a social media company if they believe they have been the target of unjust banning or moderation.

In Louisiana, a similar battle has played out in court, where the Louisiana and Missouri state attorneys general have accused federal agencies, including the Centers for Disease Control, of unconstitutionally pressuring social media companies to remove content and accounts during the COVID-19 pandemic.⁸⁰ In July 2023, a federal judge ruled in the plaintiffs’ favor, determining that the Biden Administration “ran afoul of the First Amendment” by pressuring social media companies to remove certain content that allegedly spread misinformation. The court granted a temporary injunction prohibiting a wide array of communications to social media companies from various federal agencies over the moderation of “protected free speech.”⁸¹ In September, however, a federal appeals court in Louisiana drastically narrowed the injunction to cover only alleged coercion.⁸² The Supreme Court has agreed to hear the case and has lifted the injunction while the case moves forward.⁸³ Still, the Court’s decision on this case may affect related legislation.

At the time of this report’s publication, the Florida and Texas laws remain enjoined and are currently before the Supreme Court. The court’s upcoming decisions will surely have major nationwide implications in determining the scope of future state and federal legislation. In the meantime, Florida’s SB 7072 represents a heavy-handed approach to state involvement with digital speech—an approach that should largely be rejected.

Right to Protest

Florida has led the country in crafting and passing laws that create or expand penalties for protest-related activities—that is, activities that arise naturally from participating in a protest or are likely to occur as a foreseeable part of a protest. PEN America has previously examined such laws at length in its two reports on anti-protest bills: Arresting Dissent: Legislative Restrictions on the Right to Protest (2020) and Closing Ranks: State Legislators Deepen Assault on Right to Protest (2021).

In the latter report, we examined Florida’s Combatting Violence, Disorder and Looting and Law Enforcement Protection Act.

Anatomy of a Law

The Act, which DeSantis signed into law in April 2021, does the following:

Makes blocking traffic in relation to a protest punishable by up to 15 years in prison
Creates vaguely defined offenses related to rioting and so-called “mob intimidation”
Makes destroying or demolishing a memorial (defined to include plaques, statues, flags and even embossed structure names) a second-degree felony
Creates an affirmative defense to civil liability when the plaintiff has been convicted of riot or unlawful assembly, allowing people to injure protesters with a degree of immunity
Makes municipal governments civilly liable for damages for failing to provide “reasonable law enforcement protection during a riot or unlawful assembly,” incentivizing local governments to impose heavy-handed police presence on protests for fear of lawsuits
Defines “riot” as a violent public disturbance involving “three or more people acting with common intent” and creates a second-degree felony called “aggravated riot,” which occurs when there are more than 25 participants, bodily harm, more than $5,000 in property damage, use or threats to use deadly weapons, and/or blocked roadways.⁸⁴

Under such a definition of “riot,” protestors who march on roadways—a long-standing tactic of social movements, including the civil rights movement—would find themselves facing felony charges. It is also worth noting that in Florida, in most cases a felony conviction strips you of your right to vote.⁸⁵

In September 2020, promoting an early draft of the bill, Governor DeSantis invoked “professional agitators, bent on sowing disorder and causing mayhem in our cities,” “crazed lunatics,” and “scraggly-looking antifa types.” He also implied that protesters were being funded and organized by external forces—as PEN America has noted before, the trope of “protesters are being paid by shadowy foreign forces” is a common rhetorical tactic used by authoritarian and illiberal governments, from Xi Jinping’s China to Vladimir Putin’s Russia to Maduro’s Venezuela.⁸⁶ Notably, the bill was watered down before its passage in 2021, with even some Republican legislators balking at the original proposal.⁸⁷

Analysis

In PEN America’s report, we warned that the Combatting Violence act was a prime example of an anti-protest law and declared it “misguided, unwise, and. . . a direct threat to Americans’ constitutional rights.”⁸⁸ The courts have appeared to agree with at least part of our assessment, enjoining enforcement of the law in September 2021 after hearing a constitutional challenge by civil rights groups. In its decision, the federal district court warned that the law was “vague to the point of unconstitutionality” and questioned whether it could be enforced equitably.⁸⁹ The law, in the court’s words, “requires individuals to ‘speculate as to the meaning of penal statutes,’ at the risk of their liberty.” The court went on to point out, “While there may be some Floridians who welcome the ‘chilling effect’ that this law has on the Plaintiffs in this case, depending on who is in power, next time it could be their ox being gored.”⁹⁰

The law has remained enjoined since this September 2021 decision, continuing to make its way through the courts.⁹¹ In January 2023, the 11th Circuit referred the case to Florida’s Supreme Court, asking the state’s highest authority to weigh in on how it construes the law.⁹² As this report goes to press, the state Supreme Court has heard oral arguments but has not yet issued an opinion.⁹³

DeSantis’s efforts to constrain the public’s rights to petition and assembly have continued. In February 2023, a DeSantis Administration rule that prohibits “demonstration activity” within the buildings of the Florida State Capitol Complex took effect.⁹⁴

Even outside the Complex, law enforcement may remove protestors for “unreasonably” disrupting or obstructing official business. To further freeze out protesters, the administration changed the rules so that only state bodies—not NGOs, faith-based organizations, or community groups, for example—are allowed to reserve space within the Capitol Complex.⁹⁵ Even then, the state body cannot include displays that are “harmful to minors.” Because Florida has used the protection of children as a justification for legislation like Don’t Say Gay and anti-drag bills, it is likely that this standard will be similarly interpreted to block all sorts of displays that include discussions of sex or sexual orientation. Such a rule makes it unclear whether, for instance, the State Department of Health could legally present information on preventing STDs among sex workers, or the Florida Department of Veterans could publicly discuss the needs of LGBTQ+ veterans, on Capitol grounds.”⁹⁶ Those subjects should be well within the purview of both government agencies, but the censorial tendencies of Governor DeSantis and other conservative policymakers in Florida indicate that they might argue that those topics are banned from the statehouse.

The Florida Effect

In 2020 and 2021, Governor DeSantis framed the Combatting Violence act as a state response to a national issue. In his September 2020 press conference promoting the bill, he referenced violence at protests in other states—such as Oregon, Minnesota, and Washington⁹⁷—before characterizing the bill as a defensive effort: “What it is saying is we’re not going to let Florida go down the road where some of these places have gone.”⁹⁸ Implicit in this framing is the notion that the Combatting Violence act could serve as a blueprint for other states to adopt.

In this, DeSantis was wildly successful. As we identified in our Closing Ranks report in 2021, the original September 2020 version of the act appeared to have inspired copycat proposals across the country. We tracked 21 separate bills in 15 states—Alabama, Arizona, Georgia, Indiana, Iowa, Kentucky, Mississippi, Missouri, Nevada, New Jersey, Ohio, Oklahoma, Oregon, Utah, and Washington—that borrowed language from the original Florida Combatting Violence act.⁹⁹

It is therefore no exaggeration to say that Florida’s governor and legislature are playing a national-level role in determining how government actors uphold the right to protest. All the more unfortunate, then, that this role has been largely negative.

Freedom of the Press: Defamation and Sunshine

In February 2023, in a setting that looked more like a Fox News primetime show than a governor’s podium—down to the panel of conservative activists whom DeSantis lobbed questions to in lieu of taking questions from actual members of the press—the governor announced his intent to revise Florida’s defamation laws to pare back protections for journalists. In making his case, he claimed that mainstream news outlets were the country’s “leading purveyors of disinformation.”¹⁰⁰ This claim borrows directly from the autocrat’s playbook but has also become normalized as a Republican talking point, especially in the wake of former President Trump declaring the media “the enemy of the people.”¹⁰¹ DeSantis shared the wish that his defamation proposal would be picked up by other states. “Hopefully” he said,”you’ll see more and more of that across the country.”¹⁰²

DeSantis’s office followed the February announcement with its own bill and which it submitted to the legislature. Moving quickly, DeSantis’s legislative allies proposed their own version, House Bill 991, days later.¹⁰³

The bill did not pass. If it had, HB 991 would have fundamentally altered the standard of intent needed to prove defamation against a public figure such as a politician, celebrity, or public servant.¹⁰⁴ This standard, known as the “actual malice” standard, was established by the U.S. Supreme Court in its landmark case New York Times v. Sullivan, a decision that set the foundation for modern press freedoms and is commonly cited by legal experts as among the most farsighted decisions of the modern era.¹⁰⁵ Under the actual malice standard, a politician or other public figure must show that the defendant who published the allegedly defamatory statements acted with actual malice—that is to say, that the defendant either knew that the statements were false or acted with reckless disregard as to whether they were false or not. In enacting this standard, the court recognized that, although “erroneous statement is inevitable in free debate”, it must be protected if freedom of expression is to have the “breathing space” it needs to survive.¹⁰⁶

But not all jurists have been persuaded. Within the past few years, Justices Neil Gorsuch and Clarence Thomas have indicated that they think Sullivan may be either outdated or wrongly decided.¹⁰⁷ This signal from two Supreme Court conservatives may have influenced DeSantis and, later, the Florida House of Representatives in proposing House Bill 991.

Anatomy of a Bill

Under HB 991, instead of requiring a court to make a subjective inquiry into whether the defendant knew that the allegedly defamatory statements were false (or whether the defendant acted with reckless disregard for the truth), the court can simply “infer” actual malice, without any further inquiry, when:

“The defamatory allegation is fabricated by the defendant, is the product of his or her imagination, or is based wholly on an unverified, anonymous report”
The allegation is so “inherently improbable” that only a “reckless person” would have put it into circulation, or
There are “obvious reasons” to doubt the veracity of the allegation or the informant’s report. Obvious reasons are defined as: sufficient contrary evidence that was known or should have been known to the defendant after a reasonable investigation; or the report is inherently improbable or implausible on its face.¹⁰⁸

Allowing a court or jury to “infer” liability without further proof would eliminate the important protections afforded by the actual malice standard that have made possible powerful reporting on public figures whose alleged activities—from corruption to an extramarital affair or self-dealing—can have major ramifications for all Americans. If journalists and other writers are not free to publish credible information without fear of potentially massive civil liabilities, important stories—such as the allegations of sexual misconduct that led to the rise of the #MeToo movement—might never come to light.

In addition to these troubling alterations to the actual malice standard, HB 991 would have:

Narrowed the definition of who is considered a public figure for the purposes of defamation
Removed the requirement that a public figure plaintiff show “actual malice” in cases where an allegedly defamatory statement does not relate to the reason(s) for the plaintiff’s status as a public figure—i.e., allegations about a public servant’s extramarital affair
Removed a defamation defendant’s ability to recover attorneys’ fees and costs upon a successful showing that the case against them was a so-called strategic lawsuit against public participation (SLAPP), designed to chill the exercise of their First Amendment rights. Conversely, under this proposal, the defamation plaintiff bringing suit would be eligible to recover attorneys’ fees and costs if they prevail in their suit or defeat a defendant’s anti-SLAPP motion
Subjected people who accuse someone of discriminating based on “race, sex, sexual orientation, or gender identity” to potential penalty, including a $35,000 fine, if they cannot prove it in a court of law—in essence, making it illegal to accuse an elected official of racist behavior without feeling certain it could be legally proven. Such a provision would be flatly unconstitutional. One of the bill’s sponsors, GOP state Representative Alex Andrade, touted the bill as a way to punish not just journalists but also social media commentators who accuse officials of racism.¹⁰⁹

Analysis

PEN America was among the many press freedom groups that sounded the alarm over the damage that HB 991 would do, saying, “With this legislation, Florida politicians seek to insulate themselves from criticism and weaponize the courts to chill speech and attack journalists. It’s blatantly unconstitutional, but could still wreak tremendous havoc if it passes. The United States has a long tradition of open and robust political debate, which has been underpinned by a strong and free press that need not fear a lawsuit for doing their jobs.”¹¹⁰

This bill was apparently a bridge too far even for Florida’s legislature: It died in committee. Opposition stretched across the political gamut, with conservative lobbyists from the Koch-backed Americans for Prosperity lobbying against the bill and conservative talk radio figures arguing that it would open them up to major liability.¹¹¹ The political costs appeared to deepen after Republican Senator Jason Brodeur, a co-sponsor, went on to propose a bill that would have required bloggers writing about political officials to register with the state. DeSantis quickly distanced himself from this latter proposal, saying: “That’s not anything that I’ve ever supported. I don’t support it.”¹¹²

The Florida Effect

The sustained pushback against HB 991 was encouraging. Still, the mere fact that its backers rolled it out to such fanfare and DeSantis gave it his loud endorsement represent a remarkable willingness of a U.S. governor to advance legislation that would directly undermine freedom of the press. If Florida’s policy proposals are increasingly influencing the overall direction of conservative legislators across the country, the reality that this bill was proposed in the first place remains troubling.

The standard-bearer of a previous effort to change defamation laws, Donald Trump, made demonization of the press a major plank of his 2016 campaign and his subsequent presidency. It is possible that, despite the personal animus between himself and DeSantis, Trump may advance a similar proposal during his 2024 presidential run. His March 2023 lawsuit against CNN for defamation—which a judge dismissed the following July–illustrates the former president’s continued appetite for going after news outlets that he contends portray him unfairly.¹¹³ Given Trump’s status as the Republican Party front-runner as this report goes to press, Florida’s effort to undermine the actual malice standard may get a reprise on a national level.

That is not to overstate the danger: Various legal analysts say that the courts, including the Supreme Court, are unlikely to allow such laws to survive a legal challenge.¹¹⁴ Even so, the fact that one of the country’s most visible and influential governors launched a direct attack on one of the underpinnings of the free press in this country warrants attention and vigilance from all those concerned about press freedom as a pillar of liberal democracy.

Weakening Transparency Laws

Florida is often referred to as the Sunshine State—a reference not only to its climate but also to its laws mandating government transparency. The state government has a decades-long history of being one of the most transparent in the country. It has operated under a system of “sunshine laws” and policies that have been painstakingly built by repeated Florida governors and legislatures and have earned high marks from anti-corruption and transparency groups. These laws have been instrumental in enabling journalists and everyday citizens to catch Florida officials in acts of corruption—as in 2003, for example, when it was revealed that legislative leaders had been using taxpayer resources for personal travel.¹¹⁵

During his tenure, Governor DeSantis has worked hard to dismantle this signature legacy, and he appears to have the enthusiastic support of the Florida legislature, which has ramped up its own initiatives to undermine transparency at a startling rate. During the spring 2023 legislative session alone, lawmakers proposed around 60 bills that would water down the state’s transparency laws.¹¹⁶

These efforts build on a series of related laws passed in the past several years. Among them:

SB 248 (passed 2019) expands exemptions from public record requirements by defining the term “home addresses” as personal identifying and location information. It also exempts active and former civilian personnel employed by a law enforcement agency, as well as their spouses and children, from these requirements.¹¹⁷
SB 520 (passed 2022) shields information about candidates for college and university presidencies from public view.¹¹⁸
SB 1616 (passed 2023) exempts records related to the governor’s security and travel from public records requirements as well as the records of“persons for whom such services are requested by the governor”¹¹⁹

These anti-transparency laws have been enacted despite the fact that Florida requires a two-thirds majority for any law that creates an exemption to public record mandates—a supermajority requirement that was established in 2002 to help safeguard Florida’s transparency measures from exactly this kind of attack.¹²⁰ Since 2021, the Republican Party has had a supermajority in both houses of the Florida legislature, and these bills have passed largely along party lines.

At least one such law—SB 1616, the travel law passed in 2023—has obvious personal benefits for –DeSantis himself. It passed just as DeSantis was facing increasing public scrutiny for using private chartered flights to travel around the country in the months before he announced his presidential campaign.¹²¹ Information that is now blocked from public view includes who pays for the governor’s travel on private planes, who flies with him on these flights, and his origin and destination.

Another law, SB 520, has already had significant ramifications for higher education. It allows for a type of political blitzkrieg in which the governor can implement major changes to the state’s public education system without public scrutiny until after the fact. Governor DeSantis has used this power to his advantage.

In January 2023, he announced an overhaul of the 13-member governing board of trustees of the state-run New College of Florida, appointing six (later seven) new members.¹²² The majority of these new members are well-known conservative ideologues and include Christopher Rufo, the crusader against critical race theory and architect of anti-CRT laws, which PEN America has identified as educational gag orders; and Charles Kesler and Matthew Spalding, members of the Trump Administration’s 1776 Commission for “patriotic education”, whose work has been widely discredited by professional historians.¹²³ Public reporting revealed that four of the six new board members are not Florida residents. At its first meeting, on January 23, 2023, the new board fired New College’s president, Patricia Okker, without cause and installed Richard Corcoran, a DeSantis ally, as interim president, with an approved annual salary of $699,000—over $400,000 more than Okker’s.¹²⁴

These controversial appointments were perhaps possible only because SB 520 prevented the public from learning about the new board members or New College’s new president while they were candidates for the position. The people of Florida first heard about these appointments only when DeSantis presented them as a fait accompli.

The governor has also aggressively wielded his powers to fight for less transparency in his own operations. In May 2023, investigative reporter Mike DeForest of Florida television news station WKMG reported that hundreds of public records requests to some state agencies had been routed for review to the governor’s office, sometimes delaying their release by weeks or months.¹²⁵ While Florida law does not set a time limit for its agencies to share requested public records, its Supreme Court has previously ruled that the only permissible reasons for delay involve the time it takes for a record custodian to retrieve the record and delete any information exempt from release.¹²⁶

It is useful to note a sharp contrast: Governor DeSantis, his administration, and the Florida legislature have trumpeted transparency when it comes to approving new methods of oversight of public school teachers who they are afraid will teach “inappropriate” or “woke” content. But when it comes to themselves and their own actions, darkness descends. Transparency for thee, it seems, but not for me.

It is also worth noting the ways that the governor and his allies’ efforts to limit transparency align with their efforts to weaken the actual malice standard of defamation law. Both efforts are designed to weaken the ability of reporters and government watchdogs to gather information and report on the activities of government officials.

The Florida Effect

While this report examines ways that recent legislative proposals in Florida could set an alarming model for other states, on transparency Florida has long set a positive example. The state’s legislative activity in this area, however, undermines that legacy and potentially sets a new and worrying example for states looking to further degrade transparency, press freedom, and access to information.

Freedom of Speech in Educational Settings

Perhaps no issue taken up by Governor DeSantis and the Florida legislature has received more attention than educational censorship. Sweeping content-based book bans have become an increasingly common—and normalized—occurrence in schools across the United States, thanks to the rise of national right-wing networks like Moms for Liberty and the political figures who back them.¹²⁷

Since 2021, PEN America has tracked school bans, finding, in the 2022-2023 school year, a record 1,406 book ban cases in Florida—over 40 percent of the book bans we have documented across the country.¹²⁸ PEN America is also suing the Escambia County, Florida, school board, challenging the school board’s removal and restriction of books from public school libraries as unconstitutional. Joining PEN America as plaintiffs are five authors whose books have been removed or restricted by the school board, parents and students in the district who cannot access the books, and the publisher Penguin Random House, in a first-of-its-kind challenge.¹²⁹

While book bans may be the most visible element of Florida’s educational censorship policies, they are just one feature of DeSantis’s broader ideological assault on public education in the state. At the heart of this culture and legislative war are educational gag orders (EGOs)—state legislative attempts to restrict teaching, training, and learning in K–12 schools and higher education. These bills, which generally target discussions of race, gender, sexuality, and US.. history, began to appear in Florida and nationwide during the 2021 legislative session and quickly spread to statehouses throughout the country. They explicitly restrict certain topics of instruction and exert a chilling effect on professors, employers, and teachers by threatening negative repercussions for merely an allegation of a violation.¹³⁰

Laws that exert direct censorship are buttressed by a second, quickly emerging form of legislation: what PEN America has called educational intimidation bills, which primarily increase the surveillance, oversight, and inspection of educators, instruction, classroom materials, and student behavior. Such bills, PEN has noted, “facilitate the conditions for a chilled climate in public education by radically expanding avenues for parents, government officials, and citizens to intervene in curricular and extracurricular decisions in public K–12 schools.”¹³¹

DeSantis has responded to such criticisms by deflecting and denying. In March 2023, he wrote off the wave of well-documented reporting on book banning in his state as a “hoax” and “political theater” perpetrated by “mainstream media, unions and leftist activists.”¹³² Numerous organizations have declared DeSantis’s “hoax” claim to be false.¹³³ PEN America, as one of the organizations documenting book bans in the state, has released a point-by-point rebuttal of each of his claims.¹³⁴

DeSantis and his allies have rested their educational censorship crusade on claims of fighting the sexualization of children and “woke indoctrination.”¹³⁵ In several full-length reports, PEN America has highlighted the fallacies behind these claims and their clear targeting of LGBTQ+ and BIPOC narratives.¹³⁶ The cavalcade of laws introduced and passed by DeSantis and the Florida legislature represent the largest and most expansive attack on public education in the country. Their targets are diverse—books, lesson plans, tenure, DEI, art exhibits, plays—and their collective impact is undeniable, robbing Florida students and educators of the freedom to read, learn, and express themselves in educational settings.

Educational Gag Orders

DeSantis and his supporters have celebrated four key Florida laws as bulwarks against “woke indoctrination” in schools:

the Parental Rights in Education (”Don’t Say Gay”) Act (HB 1557)
an expansion of this act (HB 1069)
the Stop WOKE (Individual Freedom) Act (HB 7)
An additional act targeting higher education (SB 266).

In reality, these four laws impose their own system of indoctrination, explicitly barring schools from teaching certain viewpoints and subjects and setting legislative agendas for the rest of the country. PEN America has written extensively about these laws in our public statements and reports on educational gag orders nationwide.¹³⁷ A condensed analysis of each law is included in this report to demonstrate how these gag orders function within the larger landscape of legislation that constrains free expression in Florida.

“Don’t Say Gay:” HB 1557 and HB 1069

When Florida’s original “Don’t Say Gay” law (HB 1557), the first bill of its kind in the country, passed in March 2022, it made headlines for its explicit attacks on LGBTQ+ students and learning. Since then, it has inspired copycat bills across the United States and an expansion in Florida that pushes restrictions even further. The law has in many ways spearheaded a shift in the targets of educational censorship, especially at the K–12 level. As we noted in our recent report, America’s Censored Classrooms 2023, policies restricting speech about LGBTQ+ issues are at an all-time high, comprising more than a third of all K–12 educational gag orders introduced in 2023. Approximately three-quarters of them are directly modeled on HB 1557.¹³⁸ Within Florida, the rhetoric and discriminatory intent of “Don’t Say Gay” has paved the way for DeSantis’s broader anti–LGBTQ+ legislative agenda.

Anatomy of a Law

As we wrote in America’s Censored Classrooms, in August 2022, HB 1557

prohibits public schools from offering any classroom instruction related to sexual orientation or gender identity prior to grade 3, or in grades thereafter in a manner that‘ is not age appropriate or developmentally appropriate for students in accordance with state standards.’ Additional requirements related to curriculum‘ transparency‘ are also included. Parents who believe that a school has violated the law may file a complaint with the commissioner of education or sue the school in civil court.¹³⁹

This law also requires schools to notify parents of available health services, prohibits schools from forbidding or discouraging the sharing of information with parents about student health and well-being, and offers parents the option to withhold consent for some healthcare services.¹⁴⁰

DeSantis and the Florida legislature followed up “Don’t Say Gay” with an expansion bill, HB 1069, signed into law in May 2023.¹⁴¹ HB 1069 doubles down on the restrictions of “Don’t Say Gay” while taking explicit aim at the teaching and discussion of gender identity. It extends bans on all classroom instruction related to sexual orientation and gender identity to grade 8 and institutes a new requirement that all public K–12 educational institutions teach “that a person’s sex is an immutable biological trait and that it is false to ascribe to a person a pronoun that does not correspond to such person’s sex.” The law is a pointed attack on practices like preferred pronoun use for students and staff, who under the law are explicitly barred from using pronouns or titles that do “not correspond to the staff member’s biological sex.”

Along with prohibiting certain content and behavior, HB 1069 lays out new requirements and oversight for health studies curricula, under which instructional materials must classify individuals according to their biological sex and must report curricula and receive approval of them from the State Department of Education.¹⁴² The state isn’t the only entity empowered to restrict content at its discretion. The law declares, “Any parent or resident of a county may challenge material contained within a school, including if the material allegedly ‘depicts or describes sexual content.” It also requires school districts to make objection forms and recipients readily available on their websites. This heightened ease of objection has immediate consequences for student access to educational content, even if challenges eventually prove unsuccessful. According to the law, “Material challenged for being pornographic”” or for containing sexual’ conduct’ (labels historically applied liberally to books with LGBTQ+ representation) must be made immediately inaccessible to students pending the outcome of an investigation.”¹⁴³

Soon after the “Don’t Say Gay” law was passed, Equality Florida, an LGBTQ+ rights organization, and a group of students, parents, and teachers filed a federal lawsuit challenging its constitutionality. The court dismissed the suit on standing grounds without deciding on the merits.¹⁴⁴ A second attempt by the same claimants was also dismissed for lack of standing.¹⁴⁵ “It does not matter that removing a library book, changing curriculum, or denying access to extracurricular activities could constitute a cognizable injury,” the court said. “What matters is whether Plaintiffs have alleged that they themselves suffered a cognizable injury traceable to the Provision’s enforcement and redressable by an injunction against it. They have not.”¹⁴⁶ In both dismissals, the court cited the general state of hostility toward LGBTQ+ people to find that the plaintiffs could not specifically identify the “Don’t Say Gay” law as the source of their fears. To date, no court has adjudicated the merits of the issues.¹⁴⁷

Stop WOKE Act: HB 7, SB 266

The Stop WOKE Act (HB 7, also called the Individual Freedom Act) passed in March 2022,¹⁴⁸ and an expansion law, SB 266, passed in May 2023,¹⁴⁹ have been billed as the state’s flagship anti-CRT (critical race theory) laws. Critical race theory is an academic theory that has in recent years been popularized as a right-wing catchall term to refer to a wide range of teaching on race, from history classes to math textbooks.¹⁵⁰ Passed the same month as “Don’t Say Gay,”¹⁵¹ the Stop WOKE Act in many ways works as a companion law, placing similar restrictions on classroom discussion topics—particularly those derided by the far right. Notably, however, HB 7 applies to all sorts of organizations, including higher education institutions and private employers, along with K–12 schools.

Anatomy of a Law

As outlined in PEN America’s August 2022 report, America’s Censored Classrooms, the act:

includes three principal provisions. The first prohibits all employers, including both public and nonpublic educational institutions, from requiring an individual to attend, as a condition of “certification, licensing, credentialing, or passing an examination,” any training or instruction where ideas from a list of “divisive concepts” about race, sex, color, or national origin are espoused, promoted, advanced, inculcated, or imposed. Employers who do so may be fined up to $10,000 per violation under Florida’s Civil Rights Act. The second provision extends this same prohibition to classroom instruction in public K–12 schools, colleges, and universities. In the case of public K–12 schools, no punishment is specified. However, under a separate law passed shortly after HB 7, public colleges and universities found to have violated this prohibition may lose access to state financial support.¹⁵² The third provision requires that all instruction and supporting materials in public K–12 schools be “consistent” with a list of principles related to race, color, national origin, religion, disability, or sex—principles that essentially contradict the prohibited ideas enumerated elsewhere in the law. Teachers may not “indoctrinate or persuade” students to adopt any belief inconsistent with these principles. No punishment is specified.

Among the “divisive concepts” that the law bans educators from espousing: any instruction holding that “an individual . . . should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion”. It also forbids instruction that explores historic acts of discrimination (in the bill’s words, explores claims that “members of one group are morally superiority to another”), and it characterizes such framing as akin to racial discrimination.¹⁵³ Under these provisions, a teacher who encourages reflection on how the legacy of slavery affects U.S. racial relations, examines research establishing the existence of white supremacy, or shares varying perspectives on a concept like affirmative action could face a state-level investigation or even termination. As the district court found, the law is viewpoint discriminatory—prohibiting instructors from speaking in favor of affirmative action, for example, but not against it.¹⁵⁴

SB 266 zeroes in on higher education and reaches beyond classroom instruction, barring public colleges universities from using federal or state funding to support any “programs or campus activities” that violate the Stop WOKE Act, “advocate for diversity, equity, and inclusion, or promote or engage in political or social activism.”¹⁵⁵ The bill bans most DEI offices and initiatives and rewrites university-wide mission statements to eliminate mentions of DEI. It also restricts general education courses, barring—in vague, politically charged terminology—coursework or curricula containing material that “distort[s] significant historical events,” teaches “identity politics,” 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.”¹⁵⁶

Florida’s laws go well beyond the recognized authority of educational bodies to regulate curricula. For example, where such authority exists, it must be exercised in accord with legitimate pedagogical interests, and not toward narrow partisan or political ends. The Supreme Court has long held that the First Amendment “does not tolerate laws that cast a pall of orthodoxy over the classroom.”¹⁵⁷ Like much of Florida’s legislation, HB 7 liberally casts expression as unacceptable and places litigating the legitimacy of this speech in the hands of the state government. The viewpoint discrimination, vagueness, and overbreadth of these laws pose significant constitutional issues. In fact, the restrictions and chilling effects of gag order laws threaten to destroy the climate of open inquiry required in free and democratic educational institutions.

The Stop WOKE Act has already been challenged several times in court, and the state has been enjoined from enforcing it both against private employers and in higher education while these lawsuits proceed.

Employment

An early lawsuit against the Stop WOKE Act (also called the Individual Freedom Act) sheds light on a less-discussed dimension of the law: its workplace restrictions on private employers, which bar all employers in Florida from requiring individuals to attend any training or instruction wherein any of the law’s “divisive concepts” are “espoused, promoted, advanced, inculcated, or imposed.”¹⁵⁸

In March 2022, two Florida businesses—a honeymoon registry company and a franchisee of Ben & Jerry’s—argued that the law’s ban on the discussion of topics like racial bias and privilege in employee diversity training constituted an “infringement of free speech” of private employers.¹⁵⁹ That August, a federal district court ruled in the businesses’ favor, issuing a preliminary injunction on the bill’s workplace provisions and slamming its restrictions as unconstitutionally vague instances of “naked viewpoint-based discrimination”. In his ruling, the judge determined that the law likely violates the 1st and 14th Amendments, writing that the Individual Freedom Act “does not target trainings because they are mandatory; the IFA targets trainings because of the speech delivered at them.”¹⁶⁰ An amicus brief submitted by PEN America in February 2023 also called out the law’s blatant viewpoint discrimination.¹⁶¹

The suit is currently before the 11th Circuit Court of Appeals—and it’s poised to have major national implications. As noted by a group of Florida businesses in an amicus brief filed in January 2023, if Stop WOKE is upheld, the chilling effects of its workplace restrictions could extend beyond Florida. It is possible that businesses offering DEI or other workplace training in multiple states will adjust their entire nationwide curriculum to meet Florida’s requirements rather than develop Florida-specific programs.¹⁶²

In separate litigation, Pernell v. Lamb, the plaintiffs—a set of university professors and students—accused the law of not only “imposing viewpoint-based restrictions on educators… . . . and students” but also of having the explicit “intent to discriminate against Black educators and students,” a direct violation of the 14th Amendment’s Equal Protection Clause. The federal court hearing the case issued another preliminary injunction, this time enjoining provisions restricting instruction on race and gender in higher education. The court blasted the restrictions as “positively dystopian” and politically motivated, writing, “Defendants essentially ask this Court to engage in judicial’ activism,’ since accepting Defendants’ argument would require this Court to substitute binding precedent with Defendants’ policy preference.”¹⁶³ In March 2023, the appeals court upheld the injunction for universities and colleges, rejecting a request from the DeSantis Administration.¹⁶⁴ In June 2023, PEN America filed an amicus brief in Pernell v. Lamb, writing, “The ability of educators to discuss topics relevant to their subject matter, including those subjectively deemed ‘divisive by state legislatures,’ must be protected. The ‘Stop W.O.K.E.’ Act isn’t just dangerous—it’s wholly incompatible with the First Amendment.”¹⁶⁵

Two separate legal challenges of SB 266’s higher education restrictions, including the recommended denial or deferment of tenure for certain university professors,¹⁶⁶ are ongoing.¹⁶⁷ While the rules applying to employers and higher education have been stayed, the Stop WOKE Act’s restrictions on K–12 schools remain, with the only challenges to them thus far dismissed for procedural reasons.

Educational Intimidation Bills

In August, PEN America released Educational Intimidation: How “Parents’ Rights” Legislation Undermines the Freedom to Learn, examining a quickly emerging body of legislation that enables the restrictions of educational gag orders. These bills, which we term “educational intimidation bills” (EIBs), create the conditions for indirect censorship; as we say in the report, they empower the use of intimidation tactics to “pressure educators to be more timid in the content they teach, pressure librarians to be more restrictive in the books they make available to students, and pressure students to limit their self-expression, without imposing direct prohibitions.”¹⁶⁸ Notably, these bills do not target specific topics or content, but they make it easier for individuals to do so by adding and building out mechanisms to challenge books, introducing new time-consuming and bureaucratic barriers to access literature, and severely heightening the financial and other stakes of any perceived violation.

Given Florida’s track record with educational gag orders, it’s not surprising that the state legislature has already emerged as a national leader in introducing and passing educational intimidation bills. In the past three years, five educational intimidation bills have become Florida law—one of the highest pass rates in the country. For comparison, Mississippi, and South Carolina have failed to pass any EIBs despite introducing over 15 apiece, and Missouri has only passed one EIB–2022’s SB 775–out of 31 separate attempts.¹⁶⁹

Looking at Florida, we can already begin to understand the dangerous consequences of these bills. HB 1467, enacted in 2022, requires the state’s school districts to create an online “searchable” database for all instructional and library materials from schools in the entire district, guarantees that any resident of a district can lodge formal objections to any materials, and establishes new library selection protocols that explicitly advise educators to “err on the side of caution.”¹⁷⁰ A provision in Florida’s HB 1069, the “Don’t Say Gay” expansion bill discussed above, requires that any book in a school that is challenged for “sexual content” be removed within five days of the complaint, even if the challenge has not been reviewed or upheld. The law also requires that individual schools cover all the costs of appealing book bans.¹⁷¹

Bills that have passed have already resulted in less access to broad swaths of literature— beyond specific banned titles—in schools across the state. In Citrus County, school officials decided that all library materials would be blocked and only available with a parent-signed opt-in form. The purpose of this sweeping mandate: They didn’t have the capacity to log all of the district’s instructional and library materials online before the school year started. As of January 2023, over 4,000 students were barred from accessing any books in the school libraries—the vast majority had not explicitly opted out but simply had not returned a signed form.¹⁷²

An educational intimidation framework also shines a light on provisions within educational gag orders that do not explicitly censor classroom materials and instruction. Of those passed, Florida’s “Don’t Say Gay” (HB 1557) is a key example: In addition to banning all classroom discussion of LGBTQ+ topics, it includes disclosure provisions that require schools to notify parents of changes in student “health and well-being.”¹⁷³ While such provisions may sound innocuous on their face, Florida’s State Board of Education has made their intended target clear. In November 2022, the board issued a warning of noncompliance to Duval County Public Schools for not explicitly requiring that school staff report children’s sexual orientation or gender identity to their parents. As directed by the state, these gender-related “outing provisions place LGBTQ+ students directly at risk, deputize teachers to single out and police a specific type of student expression, and are likely to chill broader discussion of LGBTQ+ topics and identity.¹⁷⁴

As we wrote in our report, “Anti–LGBTQ+ educational intimidation bills do not merely seek to restrict what students read or see. They target something perhaps even more fundamental: the basic rights of students and teachers to self-expression and the promise of the classroom as a site of free and open dialogue and exploration. [EIBs] rob teachers and students up to 18 years of age of agency, create bureaucratic hurdles to curriculum development, and incentivize teachers and students to minimize—rather than celebrate—risk-taking and intellectual inquiry in the classroom, eroding the freedom to learn for all.”¹⁷⁵

Collective Impact: The Florida Effect

For the past three years, PEN America’s topic-specific reports on book bans, educational gag orders, and educational intimidation bills have tracked the number and different kinds of legislation being introduced to restrict the freedom to read and learn in U.S. schools. In this report, we seek to demonstrate how these various laws and restrictions work in tandem to constitute an expansive government-led attack on a state’s entire public education system. This legislation doesn’t just affect books and curricula. Empowered by these laws, school districts have canceled plays¹⁷⁶ and art shows focused on Black and LGBTQ+ voices,¹⁷⁷ terminated educators,¹⁷⁸ and sought to discredit entire schools and institutions.¹⁷⁹ Additionally, attaching financial penalties to many of these proposals represents not just a costly administrative burden on schools and districts but a concerted effort to defund public schooling in the state.

Legislative proposals to place new restrictions on education have continued to emerge in Florida, with some becoming increasingly extreme. Florida’s leaders have even touted the extreme nature of these proposals. In December 2021, for example, Governor DeSantis announced proudly that the STOP W.O.K.E. Act would be “the strongest legislation of its kind in the nation.”¹⁸⁰

These proposals have also inspired copycat legislation around the country. At least 23 states have introduced bills inspired by “Don’t Say Gay,” and five of these bills became law in 2023: Kentucky’s SB 150 (a K–12 ban), Iowa’s SF 496 (K–6), Arkansas’s SB 294 (K–4), North Carolina’s SB 49 (K–4), and Indiana’s HB 1608 (K–3). Bills with gender-related outing or disclosure provisions specifically have exploded in popularity in the past year.¹⁸¹

While Florida has been a national trendsetter in educational censorship, it has also been the site of some of the most significant legal resistance to this government overreach. Of the 14 active lawsuits challenging educational gag orders, 7 are in Florida. All seven target “Don’t Say Gay,” STOP Woke, or the law’s’ expansions. Leah M. Watson, a senior staff attorney at the ACLU and a co-counsel in several of these lawsuits, recently declared litigation to be a promising strategy for countering educational gag orders.¹⁸² The way that these legal battles play out in Florida will have national ramifications.

Conclusion

This report is intended to evaluate how Florida’s governor and legislature have shaped the space for freedom of expression in the state over the past few years, resulting in that space being dramatically and dangerously reduced. New state laws and policies have targeted free expression in the artistic sphere, in schools and colleges, within journalism, and on the protest march. Meanwhile, the legislature has rolled out a social media policy with the avowed goal of protecting free expression on social media platforms. But this policy’s restrictions on content regulation would instead make social media a less welcoming place, to the ultimate detriment of free expression online. Evaluating the record of an entire state is always a more complex undertaking than a simple “good/bad” assessment. But it cannot be ignored that many of the policy priorities that Governor DeSantis has championed as core to his governorship, are ones that have degraded the right to free speech within the state.

In recent years, Florida has increasingly served as a laboratory for state-level policy, influencing legislation introduced by other states around the country. That is why it is all the more important to identify the free expression implications of these policies: what works, what doesn’t, which policies should be celebrated, which should be changed, and which should be jettisoned.

For further analysis of several of the thematic areas examined in this report, we refer the reader to PEN America’s other reports, below.

PEN America has conducted further analysis of educational gag orders and related restrictions on free expression in the academic sphere, in the following reports.

America’s Censored Classrooms 2023: Lawmakers Shift Strategies as Resistance Rises (November 2023)
School Book Bans: The Mounting Pressure to Censor (September 2023)
Educational Intimidation Bills: How “Parents’ Rights” Legislation Undermines the Freedom to Learn (August 2023)
Banned in the USA: State Laws Supercharge Book Suppression in Schools (April 2023)
Banned in the USA: The Growing Movement to Censor Books in Schools (September 2022)
America’s Censored Classrooms 2022 (August 2022)
Banned in the USA: Rising School Book Bans Threaten Free Expression and Students’ First Amendment Rights (April 2022)
Educational Gag Orders: Legislative Restrictions on the Freedom to Read, Learn, and Teach (November 2021)

PEN America has conducted further analysis of freedom of expression and related concerns in the digital sphere, in the following reports.

PEN America has conducted further analysis of free expression and the news ecosystem, including addressing extremism and disinformation, in the following reports.

Building Resilience: Identifying Community Solutions to Targeted Disinformation (July 2023)
Hate in the Headlines: Journalism & the Challenge of Extremism (November 2022)
Impact Report: Evaluating PEN America’s Media Literacy Program (with Stanford Social Media Lab) (September 2022)
Hard News: Journalists and the Threat of Disinformation (April 2022)

PEN America has conducted further analysis of freedom of expression and the right to protest, in the following reports.

Closing Ranks: State Legislators Deepen Assaults on the Right to Protest (April 2021)
Arresting Dissent: Legislative Restrictions on the Right to Protest (May 2020)

For more, including our relevant press statements, case advocacy, and literary programming, the reader is encouraged to familiarize themselves with our work at www.pen.org

Acknowledgments

This report was written by Ryan Howzell, Research Program Coordinator, and James Tager, Research Director. Summer Lopez, Chief Program Office, Free Expression, Nadine Farid Johnson, Managing Director, PEN America Washington, Shannon Jankowski, Interim Sy Syms Director for U.S. Free Expression Programs, Kate Ruane, former Sy Syms Director for U.S. Free Expression Programs, as well as PEN America’s Free Expression and Education Team reviewed the report and provided strategic guidance. Elly Brinkley and Cheryl Leanza provided additional legal analysis.

PEN America is deeply grateful to Vera Eidelman, Sarah Hinger, Lee Rowland, Emerson Sykes, and Leah Watson, for their expert review and feedback. PEN America would also like to thank the fellows whose research, fact-checking, and proofreading made this report possible: Rhiannon Rashidi and Hannah Rodriguez. The report was copy-edited by Carol Balistreri. Melissa Joskow designed the graphics that accompany the report. Erica Galluscio laid out the report for publication.

Disclosure: PEN America CEO Suzanne Nossel serves on the Meta Oversight Board. This report and its conclusions reflect the views of PEN America alone.