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Free Speech

Seeming Likely En Banc Call in Florida University Professor Speech Restrictions Case

Eugene Volokh | 7.15.2026 3:59 PM

I wrote about the opinion July 7, when it was issued (see below). Just now, I saw the court issued an order stating, "A judge of this Court withholds issuance of the mandate in
this appeal." As I read the Eleventh Circuit's internal operating procedures, this likely means that an "active Eleventh Circuit judge" has indicated that "in the event the panel
declines to grant rehearing, the judge requests that a poll be taken regarding en banc consideration."

This is unsurprising, given the 2-1 split on the panel and given the prominence of the case. And of course the indication of an up coming en banc vote isn't that telling, given that the vote may well come out against review. Still, because this is such a prominent case, I thought I'd note the development.

[* * *]

Some excerpts from [the] very long opinion in Pernell v. Fla. Bd. of Governors of State Univ. by Judge Britt Grant, joined by Judge Charles Wilson; note that the leading Eleventh Circuit precedent on this is Bishop v. Aronov, which both opinions discuss in considerable detail:

[A.] The provision at issue here disallows any "training or instruction that espouses, promotes, advances, inculcates, or compels" students at Florida's public colleges and universities to believe any of eight concepts relating to topics like race and sex:

Though "promot[ing]" any of these concepts is barred, criticizing them is not. Beyond that, the Act allows instructors to introduce the ideas in a neutral fashion, permitting discussion "as part of a larger course"—so long as "instruction is given in an objective manner without endorsement of the concepts." And the law does not say how far past the classroom its restrictions extend—off-campus speeches and other settings may be in play….

{The Act's terms apply to all public schools, starting with kindergarten and going through graduate school, but the plaintiffs challenge only its application to postsecondary schools.}

[B.] [The defendants argue] that because Florida "appropriates public funds" to support public education at the State's universities, it is "entitled to say what it wishes" at those universities [under the government speech doctrine]. That is a sweeping assertion, and one that is unsupported by the cited government speech precedents.

Those cases are about public monuments, license plates, and the like—not anything close to academic teaching. The thrust of their holdings is that when the government speaks it can choose its message. There is no need, as the Supreme Court put it, for a local government that supports recycling to include a counterargument from the local trash company. The classic government speech cases Florida leans on are also about the government itself expressing certain ideas—not banning employees from endorsing others. Even so, the State asserts that "if the speech of private individuals proposing license plate slogans is government speech, then surely the classroom speech of state-employed educators at state universities is too." But why? Florida does not say….

{Of course[,] universities have control over their own curriculums…. They need not offer, for instance, every class a student would like to take. But that does not resolve, or really even address, the issues in this case.}

A variety of factors are at play when considering whether the government is speaking …. Several considerations may be relevant, including "whether the government maintains control over the speech," "whether the type of speech has traditionally communicated government messages," and "whether the public would reasonably believe that the government has endorsed the speech."

We first consider whether the government maintains control over the speech here. The State has traditionally exercised relatively little control over postsecondary education, especially as compared to public primary or secondary education. Florida imposes few curricular requirements by statute. And those that it does impose involve basic general education requirements—things like how many core classes students must take to graduate and what standards a communications course must meet. (Such a course "must afford students the ability to communicate effectively.")

And the "purpose and mission" of Florida's postsecondary educational system, as defined by state law, is to "enable[] all students to participate in the search for knowledge and individual development," to "discover and disseminate knowledge," to "foster[] diversity of educational opportunity," and to "develop in students heightened intellectual, cultural, and humane sensitivities." These broad ambitions are inconsistent with unrestricted control over the messages conveyed by university professors.

The relative independence of Florida's universities diverges from the State's near plenary authority over primary and secondary education, where "state academic standards establish the core content of the curricula to be taught in the state." In exercising this broad authority, the State Board of Education has adopted a comprehensive list of educational standards—nearing 7,300 in number and spanning every subject and every grade. To meet these standards, moreover, public school teachers must "us[e] the books and materials required," "follow[] the prescribed courses of study," and only "employ[] approved methods of instruction." The state government, in short, has traditionally controlled the curriculum in primary and secondary schools, but offers only minimal statutory guidance in the postsecondary education context.

The State's relative detachment from college lectures is even more revealing when compared to the level of state control we see in the government speech context—nearly total. A few examples illustrate the point. In one case about the use of a stadium loudspeaker during a state championship game, this Court explained that the announcer's remarks were "entirely scripted," with "[e]very word" written by a state employee. And in another involving a USDA-sponsored pro-beef campaign, the Supreme Court noted that the government exercised "final approval authority over every word used." Florida does not—and could not—exercise that kind of control over every postsecondary class lecture. Indeed, Florida does not argue that it has controlled every word that university professors say, only that it can.

And common sense also has a role to play here. Does anyone really think that every professor in every class at every public university is putting forward the official line of the State's political branches? So while the government speech doctrine "does not require omnipotence," Florida has not come close to exhibiting the degree of control necessary to classify professors' lectures as government speech.

The second and third factors—whether the speech has traditionally communicated government messages and whether the public would view the speech as endorsed by the government—are........

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