In the never-ending debate about freedom of speech on college campuses, conservatives have long condemned “cancel culture,” an attitude of intolerance toward conservative ideas. They are not wrong that liberal and left-wing views predominate at many top universities, and that many students and some faculty resist exposure to ideas they oppose. And to the extent that “wokeness” implies that only certain views are permissible on sensitive subjects such as race and sexual orientation, conservatives rightly complain that the concept is at odds with basic commitments to free expression and inquiry that should govern in the university setting.
The response to a culture of intolerance by students and faculty, however, should not be official intolerance by the state. Yet that is exactly what Florida did when, in 2022, it enacted the Stop WOKE Act, a law aimed at excising what its proponents call “critical race theory” from state university classrooms. The law prohibits public university professors and K-12 teachers from endorsing eight proscribed ideas about race, sex, and national origin, including the view that people of a particular race should “receive adverse treatment to achieve diversity, equity, or inclusion.” Under that provision, a professor could not express his opinion that Justice Sonia Sotomayor’s dissent in the Supreme Court’s decision striking down affirmative action at Harvard had the better of the argument.
So conservatives and liberals alike should be cheering the decision on July 7 from the US Court of Appeals for the Eleventh Circuit declaring unconstitutional the Stop WOKE Act’s application to university professors. (As national legal director of the ACLU, I worked on this case for the challengers.) Yet the case divided two Trump appointees. Judge Britt Grant, a former clerk to then-Judge Brett Kavanaugh, wrote the majority opinion, and Judge Barbara Lagoa filed an impassioned dissent. (A Clinton appointee, Judge Charles Wilson, sided with Grant.) The decision, the most important affirmation of academic freedom in decades, reflects a fundamental divide among conservatives on free speech—between those who are committed to the ideal across the board, and those who champion it for ideas they approve but are only too happy to silence speech they disfavor.
Florida’s governor, Ron DeSantis, and its legislature clearly fall in the latter camp. Over the past five years they have taken a range of steps to assert unprecedented political control over the state’s institutions of higher education: filling the Board of Governors, which oversees the university system, with DeSantis cronies and Republican politicians; forbidding any Diversity, Equity, and Inclusion (DEI) programs; requiring tenured professors to undergo five-year reviews conducted not by their peers but by the school’s politicized administration; and removing certain courses from required curricula, including Introduction to Sociology.
The Stop WOKE Act is the capstone of this scheme to remake public universities along political lines. In addition to the notion that affirmative action may be justified, the eight “concepts” the law proscribes include the view that “members of one race, color, national origin, or sex cannot and should not attempt to treat others without respect to race, color, national origin, or sex.” That provision could prohibit teaching about implicit bias and the cognitive inevitability of stereotyping. Another prohibits any endorsement of the concept that “a person, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the person played no part, committed in the past by other members of the same race, color, national origin, or sex.” Efforts to teach about the continuing effects of the legacy of slavery and discrimination, or the idea that reparations may be owed, could well violate that ban. In all, the prohibitions seem designed to chill almost any effort to discuss, among other things, the nation’s obligation to address the racism on which it was founded.
After a group of professors sued, Florida defended the law by arguing that when public university professors speak on the job they are speaking for the state, and therefore the government can control what they say. (The case did not present the issue of the law’s validity in the K-12 setting.) It is generally true that public employers can direct what their employees say when performing their jobs. For example, the governor can require his press secretary to defend his views, and can fire her if she does otherwise. But public university professors are different. No one thinks that a professor teaching organic chemistry, French poetry, or Enlightenment philosophy at the University of Florida is expressing the state’s official views on these subjects (if it even has any). It’s no different for those teaching law, history, or political science. University professors are not mouthpieces for government propaganda.
This does not mean that professors are free to say whatever they want in the classroom. Public universities can determine the content of their curricula and enforce professional standards. If a professor refuses to teach the subject she is assigned, or harasses a student, the university can discipline the teacher. Similarly, there is no right to teach views contrary to professional standards—the idea that the Holocaust did not happen, say, or that the earth is flat. But defending the concept of affirmative action, teaching about implicit bias, or maintaining that reparations are owed to the descendants of enslaved people is protected speech. And the state has no interest in micromanaging the viewpoint a professor expresses on the subjects she is hired to teach, so long as those views are consistent with professional standards.
Academic freedom, which the Supreme Court has described as a “special concern” of the First Amendment, protects universities and their faculty from partisan interference and political control. The principle recognizes that free inquiry is essential to the search for truth, and therefore forbids the state from casting a “pall of orthodoxy over the classroom” by dictating the views a professor can or cannot express within her assigned subject. This protects private universities from untoward meddling by politicians. But it is just as essential in public universities. Indeed, one of the Supreme Court’s most significant academic freedom cases, Keyishian v. Board of Regents (1967), struck down a New York law barring Communists from teaching in state universities.
Florida’s position, if accepted, would be the end of academic freedom in public colleges, because no university can function as a center of learning if politicians micromanage what faculty can say to their students in class. As Grant put it,
Florida’s salary-for-speech rule is a breathtaking assertion of power to ban unpopular ideas from public discourse in the very places the State’s own statutes recognize as centers of inquiry—classrooms where students are trusted to puzzle through ideas that are good and bad, easy and hard, ideally getting ever closer to the truth.
Judge Lagoa’s dissent would permit politicians to take over those classrooms for their own ends. She questions whether the First Amendment protects academic freedom at all, because she finds little evidence that the framers thought about it. But if one were to limit the First Amendment to what was protected at the founding, it would be unrecognizable. No constitutional doctrine is less “originalist” than the First Amendment: the standard account maintains that at the time of the founding it prohibited “prior restraints” on speech but placed few if any limits on the state’s ability to punish speech after the fact; it also deemed any speech that had even a “bad tendency” to lead to lawless conduct wholly unprotected.
Even if professors have some free speech rights, Lagoa insists that the state’s authority to control speech is “at its zenith in its public classrooms, including the classrooms in its public universities.” In her view, the state’s interest always outweighs the interest of faculty members in pursuing their subjects free of political constraints: “professors have no First Amendment right to overrule their employer’s judgment concerning the content of classroom instruction.” On that view, a law requiring American history professors to defend the institution of slavery or political science professors not to criticize the incumbent administration would be perfectly constitutional. The fact that Lagoa has to advance such extreme positions to defend the law only underscores what a fundamental threat to academic freedom the Stop WOKE Act presents.
Those who rightly decry “cancel culture” should be, if anything, even more disturbed by this law, which does not merely create a “culture” of intolerance but amounts to official state censorship. Yet DeSantis was not the only outspoken critic of cancel culture to champion prohibitions like those in the Stop WOKE Act: conservatives have pushed copycat laws across the country, from Oklahoma to New Hampshire.
The Trump administration is guilty of the same double standards. Trump has frequently condemned “cancel culture.” In his first term he issued an executive order conditioning federal funding to universities on their commitments to free speech and free inquiry, stating that “my Administration seeks to promote free and open debate on college and university campuses.” When he regained the presidency in 2025 he issued an executive order on his first day in office condemning his predecessor’s efforts to suppress disinformation and proclaiming his commitment to “restoring free speech.”
Yet his administration has taken unprecedented steps to punish the speech Trump opposes—denying access to federal buildings to law firms that filed suits or hired attorneys Trump did not like; expelling the Associated Press from the Oval Office press pool for failing to call the Gulf of Mexico the “Gulf of America”; suing CBS for editing an interview with Kamala Harris in a way that displeased him; barring access to the Pentagon to reporters unless they agree not to report anything the so-called Department of War does not approve; and withdrawing funding from colleges and universities for, among other things, conducting DEI trainings and tolerating students who exercised their free speech rights to protest Israel’s attacks on Gaza.
Judge Grant offered a different kind of conservatism on speech—one that recognizes the value of free speech regardless of the political valence of the speech at issue, and that values academic freedom whether or not one agrees with the particular views under attack. As the Supreme Court has repeatedly said, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Liberals, too, have not always heeded this warning: calls to regulate “hate speech” and objections to protecting corporate speech also sometimes have a free-speech-for-me-but-not-for-thee ring to them. Many conservatives find the ideas Florida and Trump have sought to punish offensive; many progressives find the ideas that Florida and Trump advance equally offensive. But the First Amendment protects both. “Whether Florida is right or wrong about how dangerous these viewpoints are is irrelevant, at least to our inquiry as a court,” Grant wrote. “No matter how controversial the ideas, allowing the government to set the terms of the debate is poison, not antidote.”