[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-13135

____________________

HONEYFUND.COM INC, 

CHEVARA ORRIN, 

WHITESPACE CONSULTING LLC, 

d.b.a. Collective Concepts LLC, 

PRIMO TAMPA LLC, 

Plaintiffs-Appellees,

versus

GOVERNOR, STATE OF FLORIDA, 

ATTORNEY GENERAL, STATE OF FLORIDA, 

SENIOR CHAIR OF THE FLORIDA COMMISSION ON HUMAN 

RELATIONS, 

VICE CHAIR AND COMMISSIONER OF THE COMMISSION, 

MARIO GARZA, et al.,

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2 Opinion of the Court 22-13135

Defendants-Appellants.

____________________

Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket No. 4:22-cv-00227-MW-MAF

____________________

Before WILSON, GRANT, and BRASHER, Circuit Judges.

GRANT, Circuit Judge:

This is not the first era in which Americans have held widely 

divergent views on important areas of morality, ethics, law, and 

public policy. And it is not the first time that these disagreements 

have seemed so important, and their airing so dangerous, that 

something had to be done. But now, as before, the First 

Amendment keeps the government from putting its thumb on the 

scale. 

The State of Florida seeks to bar employers from holding

mandatory meetings for their employees if those meetings endorse 

viewpoints the state finds offensive. But meetings on those same 

topics are allowed if speakers endorse viewpoints the state agrees

with, or at least does not object to. This law, as Florida concedes, 

draws its distinctions based on viewpoint—the most pernicious of 

dividing lines under the First Amendment. But the state insists that 

ordinary First Amendment review does not apply because the law

restricts conduct, not speech. 

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We cannot agree, and we reject this latest attempt to control 

speech by recharacterizing it as conduct. Florida may be exactly 

right about the nature of the ideas it targets. Or it may not. Either 

way, the merits of these views will be decided in the clanging 

marketplace of ideas rather than a codebook or a courtroom. 

I.

A.

Florida’s law, the Individual Freedom Act, bans certain 

mandatory workplace trainings.1 Fla. Stat. § 760.10(8)(a). The Act 

says employers cannot subject “any individual, as a condition of 

employment,” to “training, instruction, or any other required 

activity that espouses, promotes, advances, inculcates, or compels” 

a certain set of beliefs. Id. It goes on to list the rejected ideas, all of 

which relate to race, color, sex, or national origin:

1. Members of one race, color, sex, or national origin 

are morally superior to members of another race, 

color, sex, or national origin.

1 The Act is also known as the “Stop W.O.K.E. Act,” which stands for “Stop 

the Wrongs to our Kids and Employees.” News Release, Florida Off. of the 

Governor, Governor DeSantis Announces Legislative Proposal to Stop W.O.K.E. 

Activism and Critical Race Theory in Schools and Corporations (Dec. 15, 2021),

https://perma.cc/MS3H-8Z9N. Along with banning mandatory workplace 

trainings, the Act prohibits public-school instruction that aims to “indoctrinate 

or persuade students to a particular point of view inconsistent with” certain 

principles. Fla. Stat. § 1003.42(3). That provision is not the subject of this 

appeal, and nothing in this opinion should be construed as addressing it.

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2. An individual, by virtue of his or her race, color, 

sex, or national origin, is inherently racist, sexist, or 

oppressive, whether consciously or unconsciously. 

3. An individual’s moral character or status as either 

privileged or oppressed is necessarily determined by 

his or her race, color, sex, or national origin. 

4. Members of one race, color, sex, or national origin 

cannot and should not attempt to treat others 

without respect to race, color, sex, or national origin. 

5. An individual, by virtue of his or her race, color, 

sex, or national origin, bears responsibility for, or 

should be discriminated against or receive adverse 

treatment because of, actions committed in the past 

by other members of the same race, color, sex, or 

national origin. 

6. An individual, by virtue of his or her race, color, 

sex, or national origin, should be discriminated 

against or receive adverse treatment to achieve 

diversity, equity, or inclusion.

7. An individual, by virtue of his or her race, color, 

sex, or national origin, bears personal responsibility 

for and must feel guilt, anguish, or other forms of 

psychological distress because of actions, in which the 

individual played no part, committed in the past by 

other members of the same race, color, sex, or 

national origin.

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8. Such virtues as merit, excellence, hard work, 

fairness, neutrality, objectivity, and racial 

colorblindness are racist or sexist, or were created by 

members of a particular race, color, sex, or national 

origin to oppress members of another race, color, 

sex, or national origin. 

Id.

Discussion of these topics, however, is not completely 

barred—the law prohibits requiring attendance only for sessions 

endorsing them. Id. § 760.10(8)(b). Employers can still require 

employees to attend sessionsthat reject these ideas or present them

in an “objective manner without endorsement of the concepts.” Id.

Florida justifies its Act as an antidiscrimination law. 

According to the state’s briefs, affirming these prohibited concepts 

constitutes “hostile speech,” and forcing it on employees amounts 

to “invidious discrimination” that the state can prohibit. By 

limiting the range of views that employees can be required to hear, 

the Act (its proponents say) will protect Floridians from this 

dangerous and offensive speech—whether they wish to hear it or 

not. News Release, Florida Off. of the Governor, Governor Ron 

DeSantis Signs Legislation to Protect Floridians from Discrimination and 

Woke Indoctrination (Apr. 22, 2022), https://perma.cc/33TM2B3M.

The Act can be enforced through citizen-initiated suits or 

through regulatory action. Either way, the price of failure is steep. 

Employers who require their employees to hear these disfavored 

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ideas can face serious financial penalties—back pay, compensatory 

damages, and up to $100,000 in punitive damages, plus attorney’s 

fees—on top of injunctive relief. Fla. Stat. §§ 760.11(5), (6),

760.021(1), (4). 

B.

Honeyfund and Primo Tampa are companies that want to 

host mandatory training sessions they characterize as highlighting 

“diversity, equity, and inclusion” issues. And Chevara Orrin is the 

founder of Whitespace Consulting, a firm that contracts with 

employers like Honeyfund and Primo Tampa to host such 

meetings, which all four plaintiffs say bring “substantial benefits”

to businesses. The plaintiffs also say the Act prohibits them from 

sharing their viewpoints. In a lawsuit naming Florida Governor 

Ron DeSantis, Florida Attorney General Ashley Moody, and 

several members of the Florida Commission on Human Relations, 

the plaintiffs challenged the mandatory-meeting provision of the 

Individual Freedom Act, Fla. Stat. § 760.10(8). They said the Act 

violates their rights to free speech, and is both vague and 

overbroad. 

The district court granted a preliminary injunction, 

reasoning that the mandatory-meeting provision is both 

unconstitutionally vague and an unlawful content- and viewpointbased speech restriction.2 Florida now appeals.

2 All defendants were sued in their official capacities. The district court 

declined to preliminarily enjoin Governor DeSantis because the Act does not 

provide the Governor enforcement authority, and because any remedy 

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II.

The district court’s order granting a preliminary injunction 

is reviewed for abuse of discretion. See Otto v. City of Boca Raton, 

981 F.3d 854, 860 (11th Cir. 2020). A preliminary injunction is

appropriate only when the moving party can show that: (1) “it has 

a substantial likelihood of success on the merits”; (2) it will suffer

“irreparable injury” unless an “injunction issues”; (3) this 

“threatened injury to the movant outweighs whatever damage the 

proposed injunction may cause the opposing party”; and (4) “the 

injunction would not be adverse to the public interest.” Id.

(quotation omitted). 

III.

The ideas targeted in Florida’s Individual Freedom Act are 

embraced in some communities, and despised in others. But no 

matter what these ideas are really worth, they define the contours 

of the Act. By limiting its restrictions to a list of ideas designated as 

offensive, the Act targets speech based on its content. And by 

barring only speech that endorses any of those ideas, it penalizes

certain viewpoints—the greatest First Amendment sin. Florida 

concedes as much, even admitting that the Act rejects certain 

viewpoints. But the state insists that what looks like a ban on 

against the Governor would be functionally equivalent to a remedy against 

the other defendants. Plaintiffs do not address this issue on appeal, so neither 

do we. See Sapuppo v. Allstate Floridian Ins., 739 F.3d 678, 680 (11th Cir. 2014). 

We will refer to the remaining defendants as “Florida” for the sake of 

simplicity.

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speech is really a ban on conduct because only the meetings are 

being restricted, not the speech. 

We have rejected similar conduct-not-speech claims before. 

See, e.g., Otto, 981 F.3d at 861, 865–66; Wollschlaeger v. Governor, 

Florida, 848 F.3d 1293, 1308 (11th Cir. 2017) (en banc). So too here. 

The only way to discern which mandatory trainings are prohibited 

is to find out whether the speaker disagrees with Florida. That is a 

classic—and disallowed—regulation of speech.

A.

Speech doctrine is famously complicated, but some points

are beyond dispute. A few limited categories of speech are 

traditionally unprotected—obscenity, fighting words, incitement, 

and the like. Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 791 (2011). 

But what counts as unprotected speech starts and ends with 

tradition—“new categories of unprotected speech may not be 

added to the list by a legislature that concludes certain speech is too 

harmful to be tolerated.” Id.; see also Nat’l Inst. of Fam. & Life 

Advocs. v. Becerra, 585 U.S. 755, 767 (2018). 

Outside of these narrow categories, then, content-based 

restrictions of speech are “presumptively invalid.” Wollschlaeger, 

848 F.3d at 1300 (quotation omitted). A restriction is content based 

if it “applies to particular speech because of the topic discussed or 

the idea or message expressed.” Reed v. Town of Gilbert, 576 U.S. 

155, 163 (2015). The First Amendment’s protections against 

content-based restrictions are not absolute, however—such laws 

can be upheld if they are “narrowly tailored to serve compelling 

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state interests.” Id. But this standard, known as strict scrutiny, is a 

notoriously difficult test, one that few laws survive. Otto, 981 F.3d 

at 861–62. Its bar is high for a reason: “the alternative would lead 

to standardization of ideas either by legislatures, courts, or 

dominant political or community groups.” Terminiello v. Chicago, 

337 U.S. 1, 4–5 (1949); see Otto, 981 F.3d at 861–62.

For viewpoint-based speech restrictions—when the 

government targets not just a subject matter, but “particular views 

taken by speakers” on that subject matter—the First Amendment 

provides even tighter limits. Rosenberger v. Rector & Visitors of Univ. 

of Virginia, 515 U.S. 819, 829 (1995). Such restrictions are “an 

egregious form of content discrimination” and likely even invalid 

per se. Otto, 981 F.3d at 864 (quoting Rosenberger, 515 U.S. at 829). 

Conduct, of course, is a different matter because the

government does have broad authority to regulate in that arena—

just not as a smokescreen for regulating speech. See R.A.V. v. City 

of St. Paul, 505 U.S. 377, 385 (1992). To be sure, regulations of 

conduct may incidentally affect speech; the classic example is that 

a law against setting fires can prohibit flag burning. Id. The 

comparative freedom to regulate conduct sometimes tempts

political bodies to try to recharacterize speech as conduct. But

hiding speech restrictions in conduct rules is not only a “dubious 

constitutional enterprise”—it is also a losing constitutional 

strategy. Wollschlaeger, 848 F.3d at 1309; see also Otto, 981 F.3d at 

865–66. 

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When the conduct-not-speech defense is raised, courts need 

tools to distinguish between the two. One “reliable way” to sort 

them out is to “ask whether enforcement authorities must examine 

the content of the message that is conveyed to know whether the 

law has been violated.” Otto, 981 F.3d at 862 (quoting McCullen v. 

Coakley, 573 U.S. 464, 479 (2014)). In other words, we ask whether 

the message matters, or just the action. When the conduct 

regulated depends on—and cannot be separated from—the ideas 

communicated, a law is functionally a regulation of speech. See id.

at 865–66. And that means we treat it just like any other contentbased speech restriction under the First Amendment. Id.; see also 

Cohen v. California, 403 U.S. 15, 18 (1971). 

B.

The Individual Freedom Act prohibits mandatory employee 

meetings—but only when those meetings include speech 

endorsing certain ideas. Florida does not attempt to defend the Act

as a regulation of traditionally unprotected speech like fighting 

words or true threats. Indeed, it acknowledges that the law 

enforces viewpoint-based restrictions, conceding that authorities

would need to evaluate “the content of speech” and “the viewpoint 

expressed in a mandatory training seminar to determine whether 

the Act applies.” But the result, Florida says, is a “restriction on the 

conduct” of holding the mandatory meeting, “not a restriction on the

speech” that takes place at that meeting. 

That characterization reflects a clever framing rather than a 

lawful restriction. True enough—the Act facially regulates the 

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mandatory nature of banned meetings rather than the speech itself. 

But the fact that only mandatory meetings that convey a particular 

message and viewpoint are prohibited makes quick work of Florida’s 

conduct-not-speech defense. To know whether the law bans a 

meeting, “enforcement authorities must examine the content of 

the message that is conveyed.” See Otto, 981 F.3d at 862 (quotation 

omitted). If Florida disapproves of the message, the meeting

cannot be required. This is a direct penalty on certain viewpoints—

because the conduct and the speech are so intertwined, regulating 

the former means restricting the latter. In short, the disfavored 

“conduct” cannot be identified apart from the disfavored speech. 

That duality makes the Act a textbook regulation of core speech 

protected by the First Amendment. 

C.

Florida proposes an alternative approach. It says that even 

if speech defines the contours of the prohibition, so long as the 

resulting burden is on the conduct, that conduct is all the state is 

regulating. That, in turn, means the law does not regulate speech. 

Remarkable. Under Florida’s proposed standard, a government 

could ban riding on a parade float if it did not agree with the

message on the banner. The government could ban pulling chairs 

into a circle for book clubs discussing disfavored books. And so on. 

The First Amendment is not so easily neutered.

The Supreme Court rejected a similar argument decades 

ago, when California convicted a man for wearing a jacket 

displaying vulgar, anti-draft language. Cohen, 403 U.S. at 16–19. 

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The conviction was not, as California claimed, based on “offensive 

conduct” rather than speech; the “only ‘conduct’ which the State 

sought to punish” was “the fact of communication.” Id. at 17–18. 

The Court emphasized that the “constitutional right of free 

expression is powerful medicine in a society,” one that is “designed 

and intended to remove governmental restraints from the arena of 

public discussion.” Id. at 24. California could not circumvent that 

principle, and neither can Florida.

Perhaps even closer was the attempt by Illinois to allow only 

protests on a single topic—labor policies—in residential areas.

Carey v. Brown, 447 U.S. 455, 457, 461 (1980). That law, on its face,

gave “preferential treatment to the expression of views on one 

particular subject.” Id. at 460–61. Because the statute’s reach 

depended “solely on the nature of the message being conveyed,”

the Court concluded that the law was a content-based speech 

restriction. Id. at 461, 462 & n.6. Here too—Florida’s law facially 

prefers certain viewpoints, and its application to meetings turns on 

the speech conveyed at those meetings. That favoritism violates 

the First Amendment, which demands an “equality of status in the 

field of ideas.” Id. at 463 (quotation omitted).

Nor can we forget Wollschlaeger, in which this Court rejected 

limits on physician speech relating to firearms, or Otto, in which we 

invalidated ordinances that banned counseling practices “grounded 

in a particular viewpoint about sex, gender, and sexual ethics.” 

Wollschlaeger, 848 F.3d at 1300–01; Otto, 981 F.3d at 864, 872. In 

both cases, the government raised conduct-related defenses. 

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Wollschlaeger, 848 F.3d at 1308–11; Otto, 981 F.3d at 864–66. And 

both times, we rejected them—“‘characterizing speech as conduct 

is a dubious constitutional enterprise,’ and ‘labeling certain verbal 

or written communications “speech” and others “conduct” is 

unprincipled and susceptible to manipulation.’” Otto, 981 F.3d at 

865 (quoting Wollschlaeger, 848 F.3d at 1308–09).

Florida asks that we ignore Cohen and Carey (and Otto and 

Wollschlaeger) and instead look to Hill v. Colorado, which concluded 

that a sidewalk-counseling prohibition (put in place to deter 

abortion opponents from approaching women outside clinics) was 

content neutral because the restriction applied to all activists, 

regardless of the subject matter addressed or the viewpoint 

expressed.3 530 U.S. 703, 708–09, 723, 725 (2000). Colorado’s law, 

in other words, was facially content- and viewpoint-neutral. Id. at 

723. Florida’s law is meaningfully different, specifically targeting 

certain content and viewpoints. 

Still, Florida argues that a single aside from Hill shows that 

its own Act regulates conduct: “We have never held, or suggested, 

that it is improper to look at the content of an oral or written 

statement in order to determine whether a rule of law applies to a 

course of conduct.” Id. at 721. This line, Florida says, means that 

3 The Hill majority leaned in on this point: “Instead of drawing distinctions 

based on the subject that the approaching speaker may wish to address, the 

statute applies equally to used car salesmen, animal rights activists, 

fundraisers, environmentalists, and missionaries.” 530 U.S. at 723. 

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laws regulating conduct are not regulations of speech—even when 

the conduct regulated depends entirely on speech.

That argument proves too much, and the sentence buckles 

under the weight Florida asks it to bear. If Hill endorsed the 

position Florida argues for today, it would flout decades of First 

Amendment jurisprudence, both before it and since. Hill does not 

go so far. Indeed, it makes clear that laws discriminating between 

“lawful and unlawful conduct based on the content” of the 

messages expressed are content-based restrictions and 

“constitutionally repugnant.” Id. at 722–23. Florida cannot pluck 

one line out of context—from a case about a content-neutral 

restriction, no less—and use it as a wholesale endorsement of 

content- and viewpoint-based restrictions.4 

To be sure, the Court’s vigorous defense of the contentneutral status of the anti-counseling statute was not without 

dissent. Several justices questioned the viewpoint-neutral intent 

and effect of the law. See generally id. at 741 (Scalia, J., dissenting); 

id. at 765 (Kennedy, J., dissenting). And a majority of the Court has 

recently reinforced those concerns, labeling Hill as one of several 

4 For the interested reader, more details about the context follow. The 

Supreme Court, defending its view that the Colorado law was content neutral, 

noted that it would be easy enough to distinguish a casual greeting from the 

more vigorous forms of conversation that were disallowed without really 

looking at content. Hill, 530 U.S.at 721–23. Whether or not that distinction 

held up, it was part of the majority’s attempt to show that the law was content 

neutral, not that it was acceptable to look at the content of speech to decide 

whether that speech was really conduct. See id. at 722–25. 

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cases that “distorted First Amendment doctrines.” Dobbs v. Jackson 

Women’s Health Org., 597 U.S. 215, 287 & n.65 (2022). But the point 

is not whether the Court’s majority was right or wrong about the 

law in Hill; the point is that the fulcrum of that decision was the 

majority’s conclusion that the law was not content based. Here, 

there is no such question—the law’s restrictions are obviously and 

admittedly content based.

In sum, Florida’s attempts to repackage its Act as a 

regulation of conduct rather than speech do not work. Laws that 

“cannot be justified without reference to the content of the 

regulated speech, or that were adopted by the government because 

of disagreement with the message” conveyed, are still “distinctions 

drawn based on the message a speaker conveys.” Reed, 576 U.S. at 

163–64 (quotation omitted); see also Sorrell v. IMS Health Inc., 564 

U.S. 552, 566 (2011). Whether Florida is correct that the ideas it 

targets are odious is irrelevant—the government cannot favor

some viewpoints over others without inviting First Amendment 

scrutiny.

IV.

Because the Act is a content- and viewpoint-based speech 

regulation, we apply strict scrutiny—an “exacting standard,” and 

one that reflects our Constitution’s fundamental commitment to 

the free exchange of ideas. McCullen, 573 U.S. at 478; see also Reed, 

576 U.S. at 163–64. “It is rare that a regulation restricting speech 

because of its content will ever be permissible.” Brown, 564 U.S. at

799 (quotation omitted). And again, for the law to survive, the 

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government bears the burden of showing that it is narrowly 

tailored to serve a compelling state interest. Reed, 576 U.S. at 163. 

In other words, Florida must show that the Act’s prohibitions are 

the least restrictive way to achieve a stated—and crucial—purpose. 

United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 813 (2000).

Florida claims that it has a compelling interest in protecting 

individuals from being forced, under the threat of losing their jobs, 

to listen to speech “espousing the moral superiority of one race 

over another,” “proclaiming that an individual, by virtue of his or 

her race, is inherently racist,” or “endorsing the racially 

discriminatory treatment of individuals because of past racist acts 

in which they played no part.” These categories of speech, Florida 

now says, qualify as “invidious discrimination” that the state can

regulate. 

That many people find these views deeply troubling does 

not mean that by banning them Florida is targeting discrimination. 

“To discriminate generally means to treat differently.” 

Wollschlaeger, 848 F.3d at 1317. But the Act does not regulate 

differential treatment: the employer’s speech, offensive or not, is 

directed at all employees, whether they agree with it or not. 

Florida has no compelling interest in creating a per se rule that 

some speech, regardless of its context or the effect it has on the 

listener, is offensive and discriminatory. “It is firmly settled that 

under our Constitution the public expression of ideas may not be 

prohibited merely because the ideas are themselves offensive to 

some of their hearers.” Streetv. New York, 394 U.S. 576, 592 (1969). 

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Still, even if we presumed that the Act served the interest of 

combating discrimination in some way, its breadth and scope 

would doom it. Banning speech on a wide variety of political 

topics is bad; banning speech on a wide variety of political 

viewpoints is worse. A government’s desire to protect the ears of 

its residents “is not enough to overcome the right to freedom of 

expression.” See Cohen, 403 U.S. at 22–23 (quotation omitted). That 

is why, even in the face of compelling interests, “[b]road 

prophylactic rules” are generally disfavored and cannot survive. See 

NAACP v. Button, 371 U.S. 415, 438 (1963). 

This law is no different. Florida insists that its Act is 

narrowly tailored—indeed that it “focuses with surgical precision” 

because it covers only mandatory instruction. That means, Florida 

says, discussions forced on unwilling employees.5 But another way 

5 Florida also defends its law based on a “captive audience” theory, arguing 

that a government is allowed to prevent discriminatory speech thrust upon an 

unwilling viewer or listener. This too misses the mark. The captive audience 

argument has historically been entertained “only when the speaker intrudes 

on the privacy of the home or the degree of captivity makes it impractical for 

the unwilling viewer or auditor to avoid exposure.” Erznoznik v. City of 

Jacksonville, 422 U.S. 205, 209 (1975) (citation omitted); see also Snyder v. Phelps, 

562 U.S. 443, 459–60 (2011). Outside of that context, the government cannot 

decide to ban speech that it dislikes because this would “effectively empower 

a majority to silence dissidents simply as a matter of personal predilections.” 

Cohen, 403 U.S. at 21. It is no surprise that “the Supreme Court has never used 

a vulnerable listener/captive audience rationale to uphold speaker-focused 

and content-based restrictions on speech.” Wollschlaeger, 848 F.3d at 1315. 

Instead, it has recognized that “we are often captives outside the sanctuary of 

the home and subject to objectionable speech.” Cohen, 403 U.S. at 21 

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of putting it would be that the Act’s prohibitions apply only when 

an employer wants to communicate a message badly enough to 

make meeting attendance mandatory. Stripping this argument 

down to the essentials thus reveals its infirmity. 

But even accepting Florida’s argument on its own terms

would require us to ignore that the law bans speech even when no 

one listening finds it offensive. That is to say, it keeps both willing 

and unwilling listeners from hearing certain perspectives—for 

every one person who finds these viewpoints offensive, there may 

be another who welcomes them. Florida acknowledged as much

in oral argument, and recognized that the Act fails to account for

that problem with its narrow tailoring argument. But make no 

mistake—even if every employee did disagree with the banned 

viewpoints, it would not save the Act. No government can “shut 

off discourse solely to protect others from hearing it.” Cohen, 403 

U.S. at 21. Instead, “in public debate we must tolerate insulting, 

and even outrageous, speech in order to provide adequate 

breathing space to the freedoms protected by the First 

Amendment.” See Snyder v. Phelps, 562 U.S. 443, 458 (2011)

(alteration adopted) (quotation omitted). 

Florida also suggests that the Act’s restrictions are minor in 

the grand scheme of things, having only an incidental effect on 

speech because they limit just one way in which employers can 

convey their desired message. That assertion is no answer to the 

(quotation omitted). Enduring speech we dislike is a necessary price. See 

Sorrell, 564 U.S. at 575; Wollschlaeger, 848 F.3d at 1315–16. 

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Act’s constitutional flaws. The First Amendment “protects speech 

itself,” and lawmakers “may no more silence unwanted speech by 

burdening its utterance than by censoring its content.” Otto, 981 

F.3d at 863; Sorrell, 564 U.S. at 566. The fact that other avenues of 

expression exist does not excuse the “constitutional problem posed 

by speech bans.” Otto, 981 F.3d at 863. 

In a last-ditch effort, Florida ties its Act to Title VII. 

According to Florida, because the Individual Freedom Act, like

Title VII, seeks to regulate discrimination, the two statutes rise and 

fall together—if one is unconstitutional, the other must be too. We 

disagree. Having similar asserted purposes does not make the two 

laws the same. 

Title VII makes it unlawful for an employer to “discriminate 

against any individual with respect to his compensation, terms, 

conditions, or privileges of employment, because of such 

individual’s race, color, religion, sex, or national origin”; it never 

mentions speech or content to define discrimination. 42 U.S.C. 

§ 2000e-2(a)(1). While that law may have an incidental effect on 

speech, it is not directed at it. See R.A.V., 505 U.S. at 389; Reeves v. 

C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808–09 (11th Cir. 2010) 

(en banc). To be sure, there are valid concerns about how Title VII 

and the First Amendment could collide. See Saxe v. State Coll. Area 

Sch. Dist., 240 F.3d 200, 209 (3d Cir. 2001) (Alito, J.); DeAngelis v. El 

Paso Mun. Police Officers Ass’n, 51 F.3d 591, 596–97 (5th Cir. 1995); 

Eugene Volokh, Comment, Freedom of Speech and Workplace 

Harassment, 39 UCLA L. Rev. 1791, 1793–98 (1992). For that 

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reason, we exercise special caution when applying Title VII to 

matters involving traditionally protected areas of speech. See

Yelling v. St. Vincent’s Health Sys., 82 F.4th 1329, 1345 (11th Cir.

2023) (Brasher, J., concurring). 

None of this threatens our conclusion that Florida’s law 

contains an illegal per se ban on speech the state disagrees with. 

Here, speech is not regulated incidentally as a means of restricting

discriminatory conduct—restricting speech is the point of the law. 

That important distinction sets this Act apart from Title VII as an 

outright violation of the First Amendment. 

No matter how hard Florida tries to get around it, 

“viewpoint discrimination is inherent in the design and structure of 

this Act.” NIFLA, 585 U.S. at 779 (Kennedy, J., concurring). Given 

our “profound national commitment to the principle that debate 

on public issues should be uninhibited, robust, and wide-open,” the 

answer is clear: Florida’s law exceeds the bounds of the First 

Amendment. New York Times Co. v. Sullivan, 376 U.S. 254, 270 

(1964). No matter how controversial the ideas, allowing the 

government to set the terms of the debate is poison, not antidote.6 

V.

Because the plaintiffs have shown a likelihood of success on 

the merits, the remaining requirements necessarily follow. See Otto, 

981 F.3d at 870. Plaintiffs suffer an irreparable injury because there

6 Because we conclude that the Act’s speech restrictions fail strict scrutiny, we 

need not address the plaintiffs’ vagueness and overbreadth arguments. 

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is an “ongoing violation of the First Amendment.” FF Cosms. FL, 

Inc. v. City of Miami Beach, 866 F.3d 1290, 1298 (11th Cir. 2017). Such 

a violation, even for a minimal period of time, constitutes

irreparable injury. KH Outdoor, LLC v. City of Trussville, 458 F.3d 

1261, 1271–72 (11th Cir. 2006). And because the injury here is 

direct rather than incidental, the remedy required is an injunction. 

See id. at 1272. Finally, this injury is not outweighed by any 

threatened harm to Florida because the government has “no 

legitimate interest” in enforcing an unconstitutional law. See id. 

Similarly, a preliminary injunction is not contrary to the public 

interest because it is in the public interest to protect First 

Amendment rights. See id. The plaintiffs thus satisfy all the 

requirements for a preliminary injunction.

* * *

Three years ago, we blocked local ordinancesthat attempted 

to circumvent the First Amendment’s protections by 

characterizing a ban on disfavored speech as a regulation of 

conduct. See Otto, 981 F.3d at 865–66, 872. As we cautioned there, 

“if the plaintiffs’ perspective is not allowed here, then the 

defendants’ perspective can be banned elsewhere.” Id. at 871. Our 

tradition, and our law, demand a different answer—even for the 

most controversial topics. The First Amendment “presupposes 

that right conclusions are more likely to be gathered out of a 

multitude of tongues, than through any kind of authoritative 

selection. To many this is, and always will be, folly; but we have 

staked upon it our all.” Sullivan, 376 U.S. at 270 (quotation 

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omitted). Intellectual and cultural tumult do not last forever, and 

our Constitution is unique in its commitment to letting the people, 

rather than the government, find the right equilibrium. Because 

the Individual Freedom Act’s mandatory-meeting provision, Fla. 

Stat. § 760.10(8), undermines that basic principle, it must be 

enjoined. We therefore AFFIRM the district court’s order

preliminarily enjoining the operation of that provision. 

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