“In the popular television series Stranger Things, the “upside down” describes a parallel dimension containing a distorted version of our world. (See Stranger Things, Netflix 2022). Recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely.”
–U.S. District Judge Mark Walker
So goes the opening paragraph of the ruling by the referenced judge enjoining the enforcement of a law recently passed by Florida’s elected representatives prohibiting employers from imposing political indoctrination on their employees.
I practiced before federal court judges including the Supreme Court Justices and respect almost all of them, including Democrat appointees. When I saw a news account quoting this language, I assumed it must be from a state court judge, not a federal court judge.
Most federal court judges could make a multiple of their government salary in private practice. But they instead chose to serve the people. Yes, they get a lot of butt-kissing and big offices and attractive clerks and everybody is required to stand up and be extra nice to them when they enter the courtroom (imagine if your subordinates had to do that with you!) and they get essentially full pay from the date they go part time, which is whenever they choose, to the day they die but, still, they always seemed a fair bunch more concerned about dispensing justice than imposing politics.
This one, like most of the federal judges, holds impeccable credentials. Well, OK, he’s not exactly Harvard Law but, these days, neither is Harvard Law. He was University of Florida Law School. Even so, he was appointed for life by President Barack Obama, and at age 54 there’s a lot of that life remaining. And in his district, he’s the Chief Judge, though that’s just an administrative job, not a job with any power. In any event, he’s not a measly state judge with shady night law school credentials who stands for reelection every few years, though he was indeed a state court judge before Obama appointed him to the federal bench.
Put aside whether the Florida law is Constitutional or not. I can think of arguments on both sides. What makes me shake my head is the judge’s opening paragraph quoted above.
He begins by referencing a television series (one with which I’m glad to say I’m not acquainted) where he says there’s “a distorted version of our world.” He goes on to suggest that the Republican governor and legislature of Florida have adopted such a distorted view, with the argumentative and inflammatory contention that “Florida has seemed like a First Amendment upside down.”
This language is inappropriate in a judicial ruling. First, he tells us what things have “seemed” to him. But the job of a judge is not to tell us what things have “seemed” to him; the job of a judge is to make findings of fact and conclusions of law. This judge’s reference to what “seems” to him, is most unseemly – it’s irrelevant and grossly unprofessional. It’s just a political potshot coming from a person abusing his position who should, and is obligated to, know better.
Then there’s the judge’s reference to what Florida has been doing “recently.” But what Florida has been doing “recently” as a general matter is not at issue in this case. What’s at issue is what Florida did in this particular statute. Other things that Florida may or may not have done recently (things the judge alludes to but does not identify) are simply irrelevant to whether this particular statute is Constitutional.
This judge makes a habit of gratuitous, inflammatory remarks. In a case earlier this year, he invalidated a Florida law that limited the use of ballot drop boxes. In doing so, he took another political potshot in remarking “For the past 20 years, the majority in the Florida Legislature has attacked the voting rights of its Black constituents.”
Huh? Stuff from 20 years ago is not at issue in his case. In any event, is he suggesting that Blacks are uniquely dependent on ballot drop boxes?
Yes, he is suggesting that, but I doubt he believes it. What he believes is that he’s a Democrat politician – and one with a great wit! – who, like many other Democrats, can never miss an opportunity to call a political adversary a racist.
Both of these rulings are now on appeal to an appellate court that is less biased, less political and less incendiary.
As I mentioned at the outset, I practiced before federal court judges and I have tremendous respect for almost all of them. As for this one, he may have missed his calling as a writer for an obscure Netflix show, or perhaps as a speechwirter for the person he apparently views as his boss.