DIVERSITY CORNER
DIVERSITY CORNER
Florida’ s New Local Government Anti-DEI Law Should Be Enjoined Under the First Amendment
BRYAN ANDERSON * The following is the opinion of the author.
On April 22, 2026, Florida enacted a new law entitled“ Official Actions of Local Governments” that prohibits counties and municipalities from funding, promoting or taking any official action relating to diversity, equity and inclusion( DEI). Chapter 2026-43( the Act).
The Act takes effect on January 1, 2027. It is the position of the author that the Act violates clear free-speech protections of the First Amendment and should be enjoined from going into effect.
The Act Prohibits DEI Speech and Conduct by Government, Business and Not-for Profits
The Act prohibits all Florida counties and municipalities from expending any funds from any source to establish, support, sustain or staff a DEI office or officer.
The Act prohibits DEI activity by counties, municipalities, and those that contract with them or receive grants. Prohibited activity and speech includes“ influencing the composition of employees with reference to race, color, sex, ethnicity, gender identity or sexual orientation.” The Act prohibits promoting or adopting“ training, programming or activities designed or implemented with reference to race, color, sex, ethnicity, gender identity or sexual orientation.”
The Act requires businesses and not-forprofits to certify that they will not use funds from Florida municipal and county contracts or grants to participate in or require employees, vendors, and others to engage in or address DEI.
The Act is not limited to silencing DEI speech in Florida. Firms and not-for-profits that do business in other states have to provide the same anti-DEI certification against use of funds from Florida municipal contracts and grants without any exception for operations outside of Florida.
Consequences of Violating the Act’ s Anti- DEI Provisions
The Act provides for private enforcement actions. Any resident of a municipality can sue the municipality they live in for actions violating the Act. There is no requirement that the residents have suffered any particularized harm as is typically required for standing to bring suit. The Act provides for declaratory and injunctive relief, damages, and costs.
The Act also provides that any member of a governing body of a municipality or other municipal official who violates the Act commits misfeasance or malfeasance of office – which are the statutory bases upon which Florida’ s governor can remove officials from office.
The Act Raises Constitutional Questions Under First Amendment Precedent
This is not the first Florida law attempting to ban DEI. During 2022, Florida enacted a ban on DEI training contained in its“ Individual Freedom Act”, referred to as the Stop WOKE Act. The ban on DEI training was enjoined by a Florida U. S. District Court, and the injunction was upheld by the 11th Circuit U. S. Court of Appeals in Honeyfund. com, Inc. v. Governor, 94 F. 4th 1272( 11th Cir. 2024).
The new anti-DEI Act goes even farther in potentially infringing upon first amendment rights than the ban on DEI training at issue in the Honeyfund case. The new Act does not just prohibit DEI actions and speech. It also compels those who would do business or receive grants from municipalities and counties to make compulsory anti-DEI statements.
PBCBA BAR BULLETIN 10
Similarly, the law requires county and municipal officials to administer the Act at peril of being removed by the governor even if they disagree with its requirements. This raises strong questions of First Amendment rights.
In these ways the Act, it would appear, to infringe on the rights to engage in speech concerning the topic of DEI, to be free from compelled speech against DEI as a condition of doing business, and the right and obligation of local government officials to take necessary actions to follow the constitution in performing their duties.
In Honeyfund the 11th Circuit stated that a few limited categories of speech are traditionally unprotected – obscenity, fighting words, incitement and the like. The Court stated that“ 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.” The court went on stating that“ content-based restrictions of speech are presumptively invalid” and few laws survive the strict scrutiny test applied to content restrictions.
The Court wrote that“[ t ] his is not the first era in which Americans have held widely divergent views on important areas of morality, ethics, law and public policy.” The court further stated“[ a ] nd 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.”
It is my opinion that based on the reasoning and precedent of the Honeyfund case, the Florida legislature’ s new Official Actions of Local Governments act should be enjoined prior to taking effect.