Case 4:22-cv-00324-MW-MAF Document 44 Filed 11/17/22 Page 114 of 139
using ordinary common sense would be notified that certain conduct will put them at risk’ of violating the Act.” ECF No. 52 at 33, in Case No.: 4:22cv304-MW/MAF (quoting O’Laughlin v. Palm Beach Cnty., 30 F.4th 1045, 1055 (11th Cir. 2022)). But Defendants’ change of tack and new emphasis on “common sense” only emphasizes the vagueness of the challenged provisions, particularly when it comes to the “objective instruction” savings clause discussed at length below.
Defendants may be right that some of the eight concepts are not vague. But some certainly are, even under this “ordinary person using common sense” test for public employees. For example, concept four is mired in obscurity, bordering on the unintelligible. Under that provision, educators cannot endorse the view that “[m]embers of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin.” § 760.10(8)(a)(4), Fla. Stat. (emphases added). As this Court recognized in Honeyfund, concept four thus features a rarely seen triple negative, resulting in a cacophony of confusion. See Ne. Pa. Freethought Soc’y v. Cnty. of Lackawanna Transit Sys., 938 F.3d 424, 437 n.2 (3d Cir. 2019) (striking down prohibition on political speech with “a tangle of double negatives that [was] vague enough to ensnare nearly any message” and lacked “a sufficiently definite standard … to exercise discretion”); Albanese v. McGinnis, 823 F. Supp. 521, 563 (N.D. Ill. 1993)
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