FIRE testimony against Florida House Bill 999, March 13 2023

Postsecondary & Workforce Subcommittee
Education & Employment Committee
House of Representatives
513 The Capitol
402 South Monroe Street
Tallahassee, FL 32399-1300

RE: FIRE’s Concerns regarding HB 999

Chairwoman Melo and members of the subcommittee,

My name is Joe Cohn and I am the legislative and policy director for the Foundation for Individual Rights and Expression, or as we are better known, FIRE.

FIRE as you may know is one of the nation’s preeminent nonpartisan, nonprofit civil liberties organizations with nearly 24 years of experience defending the free speech rights of students and faculty at all parts of the political spectrum. You may know us from our support for Florida’s Campus Free Expression Act which borrowed heavily from language I personally worked closely with your colleagues to craft. Or you may know us from the fact that we are currently litigating against the predecessor to this bill, Florida’s Stop Woke Act. 

We oppose HB 999 not for any ideological reason, but because it will chill and censor pedagogically-relevant speech on college campuses, where the exchange of ideas should be unfettered by any orthodoxy. In fact, we have helped other legislatures across the nation craft legislation addressing many of the issues presented by this bill and recently published model legislation to end political litmus tests too common in the hiring and promotion processes at institutions across the country. We share the sponsor’s belief that some efforts to supposedly advance equality have chilled expression.

Nevertheless, I am testifying today in opposition to HB 999 because it is unconstitutional and because it cannot be harmonized with the important principles this body enacted in 2018. 

With only 30 seconds to testify, I will not be able to cover all the constitutional problems with the bill, so I will give a brief accounting of the highlights — or I guess the lowlights.

First, there is over 60 years of Supreme Court case law forbidding the government from imposing a pall of orthodoxy over the collegiate environment, including the classroom. Simply put, you cannot constitutionally ban ideas—no matter how disagreeable or offensive they may be from the classroom. HB 999 does just that. By imposing a speech code over faculty, barring them from teaching certain disfavored ideas and forbidding certain majors that advance perspectives the majority in this body finds offensive, this bill engages in classic viewpoint based discrimination that violates the First Amendment and the long line of cases on academic freedom. 

The bill is also unconstitutionally vague. Under the bill, general education courses cannot promote ideas set forth in the Stop Woke Act. But what constitutes promotion? Does a professor have to say “I agree with this” or is it enough to share an article or book that argues in favor of a prohibited concept, like affirmative action?

The bill’s requirement that teaching in general education courses avoid “Distorting significant historical events with misleading or incorrect presentations of fact” is inherently subjective. Who is to decide whether a historical argument is misleading? Would you trust your political adversaries with the power to make that decision? Do you think they would reach the same conclusions you would reach?

The bill also targets tenure, which has been instrumental in protecting the free expression rights of faculty with disfavored views. If you are concerned about the dwindling numbers of conservative faculty in academia, weakening one of the few defenses that prevent administrators from weeding out disfavored views is a strange and unproductive choice. 

I close with two thoughts. First is this: Florida's Campus Free Expression Act states that, “A Florida College System institution or a state university may not shield students, faculty, or staff from expressive activities.” The statute says that the term shield “means to limit students’, faculty members’, or staff members’ access to, or observation of, ideas and opinions that they may find uncomfortable, unwelcome, disagreeable, or offensive.” Those are this body’s words. You were right to defend these important principles, even when some of your critics questioned whether they were worthwhile. But HB 999 cannot be squared with the promise in your existing campus free speech law.

And finally, a word of caution, FIRE has helped many states craft bills to address potential abuses of DEI rationales in higher education. Of all of the bills that have been enacted, only one was enacted over our objections, and only one has been enjoined by a federal court because it is unconstitutional — Florida’s.  I am happy to answer any questions you might have.

Thank you,

Joe Cohn
Legislative and Policy Director