freedom-of-speech first-amendment
Does the &#39;Don&#39;t Say Gay&#39; bill run afoul of the First Amendment or any other speech rights?
<p>Florida has <a href="https://abcnews.go.com/Politics/dont-gay-bill-passes-florida-senate/story?id=83301889" rel="noreferrer">passed a bill</a>:</p>
<blockquote>
<p>The bill would limit what classrooms can teach about sexual
orientation and gender identity.</p>
<p>Under this legislation, these lessons &quot;may not occur in kindergarten
through grade 3 or in a manner that is not age-appropriate or
developmentally appropriate for students in accordance with state
standards.&quot;</p>
</blockquote>
<p>Does said bill possibly run afoul of the First Amendment or any other speech rights? or can states impose speech restrictions as it sees fit?</p>

<p>The various news stories are somewhat unclear about what this bill actually does, so let us look at the <a href="https://www.flsenate.gov/Session/Bill/2022/1557/BillText/c1/PDF" rel="noreferrer">text of the bill</a>.</p>
<p>The bill would (in addition to other changes not specifically connected with sexual identity or orientation) create section 1001.42 (8)(c)(3), reading:</p>
<blockquote>
<ol start="3">
<li>A school district may not encourage classroom discussion about sexual orientation or gender identity in primary grade levels or in a manner that is not age-appropriate or developmentally appropriate for students.</li>
</ol>
</blockquote>
<p>Exactly what it means for &quot;A school district&quot; to &quot;encourage classroom discussion&quot; is less than clear. If such discussion is not on the syllabus, nor suggested by the administration, but a teacher starts it, would this law ban it? Note that no penalty is specified for violation, although parental suits against a school district are authorized by the new subsaection 1001.42 (8)(c)(4).</p>
<p>On its face the bill appears to prohibit the district from &quot;encouraging&quot; any such discussion in the primary grades (K-3 it seems), and from encouraging it if such discussion is not &quot;age-appropriate&quot; in other grades.</p>
<p>As to the question of whether this bill, if it becomes law (as seems likely) would violate anyone's constitutional rights, that is a bit tricky. Teachers and students both have First Admendment rights even during school (see <a href="https://en.wikipedia.org/wiki/Tinker_v._Des_Moines_Independent_Community_School_District" rel="noreferrer"><em>Tinker v. Des Moines Independent Community School District</em>, 393 U.S. 503 (1969)</a> for the key case) but this bill does not purport to prohibit a teacher from making any particular statement. The state does have considerable authority to regulate the curriculum of schools, particularly public schools, and what shall occur there.</p>
<p>How this provision would be enforced, and what sort of speech, if any, was actually prohibited under it would probably be important in any lawsuit over its constitutionality.</p>
<p>A law that prohibited any mention of sexual identity in school would probably be unconstitutional, but this bill does not claim to do that. If it does that in practice, that would probably weigh against it.</p>

<p>The analysis in the context of speech by government employees in the course of their official teaching duties is much different than in the case of a private school teacher or someone just discussing something in their capacity as a private citizen. A government employer has considerable latitude to decide what it is the job of a government employee to do.</p>
<p>For example, a teacher can be punished legitimately for teaching English literature instead of calculus in a calculus class. Similarly, a teacher can be punished legitimately for teaching students that the Newtonian law of gravity is G<em>M</em>m/r^3 in a physics class when it is really G<em>M</em>m/r^2, or for teaching only the history of ancient China in a modern American history class.</p>
<p>On the other hand, there are federal anti-discrimination laws that extend to anti-LGBT discrimination in employment that very plausibly, by analogy, also apply to anti-LGBT discrimination in public, secular education. And, there are also limits at both common law and under free speech protections that limit the extent to which teachers can be barred from making statements in their personal capacity, or in responding the circumstances that present themselves not initiated by the teacher.</p>
<p>Overall, it is a quite subtle balance, and the qualification that it applies to statements made &quot;in a manner that is not age-appropriate or developmentally appropriate&quot; further limits facial attacks on the constitutionality of the statute and also limits the bite of the statute as applied. Content limitations directed at young children are also subject to wider discretion in state regulation in general, than similar content limitations directed at adults or older children.</p>
<p>The issue most likely to invite constitutional or federal statutory limitations is how the &quot;state standards&quot; and understandings of what is appropriate do or do not incorporate improper discriminatory content that isn't obvious on the face of the law.</p>

<p>There is little from a first amendment point of view that is wrong with this bill. The government has broad power to proscribe speech for government employees in their capacity as government employees (if the bill were to mandate the firing of teachers who post pro-gay comments on social media, even if done outside of working hours, that would almost certainly be found unconstitutional).</p>
<p>Where it will run into constitutional problems is its vagueness and blatantly malicious motivation. It is a fundamental principle of law that while &quot;ignorance is no excuse&quot;, the government does have a duty to inform its citizens of the law, or, at least, make it theoretically possible for citizens to know the law if they spend enough effort and/or money for lawyers. Much of this bill uses vague terms which a reasonable person would have trouble knowing for sure what they mean. Allowing a teacher to be sued because they had a different interpretation than a judge or jury would be highly problematic from a constitutional point of view.</p>
<p>On the malice front, the bill is written to be facially neutral, but it's clearly not written with a neutral intent. Our culture is replete with references to sex/gender and heterosexual norms. We have different honorifics based on gender (Mr. versus Mrs.), different pronouns, different bathrooms, separate PE classes, etc. The proponents of this bill might argue that these are based on <em>sex</em>, rather than <em>gender</em>, but that would be a difficult argument to make, and should it fail, the bill would leave schools prohibited from making any reference at all to gender; if schools were only to retain cisgender normative references to gender, while prohibiting trans people from expressing their gender identity, that would be clearly discriminatory.</p>
<p>And even if they succeeded in arguing that &quot;gender&quot; in the bill doesn't include sex-based social norms, that leaves references to sexual orientation. The position of &quot;First Lady&quot; is held solely on the basis of being in a heterosexual marriage with the president (that is, every First Lady in the history of the country has held the position solely on that basis; perhaps in the future there may be a president who is not a man married to a woman). I saw a teacher give a lesson during which the students each wrote a poem, and the teacher then suggested to a male student that he might give the poem to a girl. Some teachers talk about their spouse during class. School dances often result in opposite sex partners dancing. And so on.</p>
<p>This bill would prohibit any discussion that might touch on heterosexuality. Any time a teacher makes any comment that suggests that they are heterosexual, or that they anticipate their students being heterosexual, they can be sued. Such a suit must either find in favor of the plaintiff, reject the bill wholesale, or find that the bill only prohibits discussions of homosexuality, with the latter giving very clear grounds for a suit asking for the bill to be declared unconstitutional.</p>
<p>A relevant lawsuit is that challenging <a href="https://en.wikipedia.org/wiki/1992_Colorado_Amendment_2" rel="nofollow noreferrer">Colorado's Amendment 2</a>. This amendment to the Colorado constitution prohibited cities from passing laws against discrimination on the basis of sexual orientation. This amendment was, arguably, facially neutral: although no law prohibiting discrimination against gay people was allowed, laws making discrimination against straight people illegal were equally prohibited. However, this obviously would not impact gay and straight people equally. The Supreme Court found that this amendment restricted the ability of gay people to seek legal protections, and unconstitutionally took away their right to equal access to legislative action. It singled out gay people as being unable to petition their government for the same remedies that were made available to black people, disabled people, women, etc. (Thus, the Supreme Court prohibited the state of Colorado from prohibiting cities from prohibiting businesses from prohibiting employees from engaging in homosexuality. It's confusing to talk about.)</p>
<p>The Florida bill shares many attributes of Amendment 2: it's a facially neutral bill that strips both gay and straight people equally of the platform of public schools, but the larger societal context of the bill makes it discriminatory.</p>
