Almost all of the conflicts described in this book between civil liberties and antidiscrimination laws involve laws that impinge on some form of freedom of expression protected by the First Amendment and related constitutional provisions. In the normal course of things, constitutionally protected civil liberties trump conflicting statutory rules. Yet various courts, including at times the Supreme Court, have held that the government has a ‘‘compelling interest’’ in eradicating discrimination sufficient to warrant overriding civil liberties. The courts have not, however, coherently explained why they have granted antidiscrimination laws this extraordinary immunity.
Most Americans consider limiting invidious discrimination against historically disadvantaged groups to be an important governmental interest, an interest that the average citizen might find ‘‘compelling’’ in lay terms. But for an interest to be constitutionally compelling, and therefore capable of trumping civil liberties, the interest should not simply be important. Rather, that interest should be so vital that it would be virtually suicidal for society not to limit civil liberties in order to pursue it.1 Indeed, many important governmental interests, such as the government’s interest in reducing violent crime, are routinely subordinated to the First Amendment because they are not, constitutionally speaking, compelling interests. For example, incendiary speech currently protected by the First Amendment can encourage violent behavior by glorifying violence against women, as much ‘‘gangsta rap’’ does. Yet courts have shown no inclination to uphold bans on such speech.
By contrast, from the late 1970s until the early 1990s courts abandoned civil liberties in favor of antidiscrimination principles with stunning blitheness. State courts went even further, expanding the compelling interest paradigm to antidiscrimination interests that don’t even seem objectively important, much less constitutionally compelling. For example, the Alaska Supreme Court found that the state’s interest in protecting unmarried heterosexual couples from housing discrimination is sufficiently compelling to override First Amendment rights.2
If judges routinely announced that the government’s compelling interest in eradicating violent crime trumped the enforcement of constitutional rights, civil libertarians—in common with other thoughtful Americans—would strongly protest. Yet few civil libertarians protested when courts allowed the government to eviscerate civil liberties to pursue its interest in eradicating discrimination.3 Indeed, many liberal law professors with otherwise impeccable civil liberties credentials went out of their way to justify the courts’ malfeasance. The professors argued that the Thirteenth, Fourteenth, and Fifteenth Amendments, passed largely to aid African Americans after the Civil War, create a governmental obligation to enforce equality among groups.4 This obligation, they contend, can in turn supersede explicit protections provided by the Bill of Rights, including the First Amendment.
This argument is wrong, both textually and historically. The Civil War amendments do not purport to guarantee substantive equality, much less to override the First Amendment. The Thirteenth Amendment abolished slavery, the Fourteenth Amendment required states to provide all persons with equal protection of the laws (not equality per se ), and the Fifteenth Amendment guaranteed African Americans the right to vote. None of the Civil War amendments established a right to be free from private-sector discrimination.
Some scholars argue, however, that First Amendment rights should be subordinated to antidiscrimination claims because the ‘‘constitutional value’’ of equality as reflected in the Fourteenth Amendment is in tension with the First Amendment ‘‘value’’ of freedom of expression.5 The Constitution, however, is first and foremost a legal document, not a mere expression of abstract values. The First Amendment’s prohibition on government regulation of freedom of expression does not conflict with the Fourteenth Amendment’s requirement that states may not deny equal protection of the laws. For example, an individual who engages in racist speech is protected by the First Amendment and is not violating the Fourteenth Amendment because he is neither an agent of the state nor denying anyone equal protection of the laws.
Arguments that courts should abstract egalitarian values from the Civil War amendments and find that those values trump the First Amendment are not only specious but also extremely dangerous. If courts were to accept such arguments, the slippery slope to broad censorship of speech would be short indeed. For example, public safety, like equality, is an important societal and constitutional value. Under a paradigm that important values override constitutional protections, the government could ban any incendiary speech that implicitly or explicitly encourages violence or criminal activity because such speech could be considered a threat to public safety.6 Any movie, book, or play with an outlaw hero would lose constitutional protection; say goodbye to Robin Hood , Antigone , Bonnie and Clyde , and virtually every Martin Scorsese movie. Moreover, if the constitutional values paradigm were adopted by the courts, the criminal procedure protections of the Fourth, Fifth, and Sixth amendments, such as the right to remain silent and the right to a jury trial, could ultimately be eviscerated. After all, these rights conflict with the ‘‘constitutional value’’ of public safety.
The lack of a sound constitutional justification for sacrificing civil liberties to antidiscrimination laws, combined with the increased encroachment of antidiscrimination laws on previously untouched elements of civil society, has led the Supreme Court to become increasingly protective of civil liberties. In 1992, the Court unanimously invalidated a hate speech law as unconstitutional government interference with free speech.7 Several years later, the Court unanimously held that Massachusetts had violated the First Amendment when it tried to force a privately sponsored St. Patrick’s Day parade to allow a gay rights group to march under its own banner.8 Most recently, the Court, in a five-to-four decision, upheld the right of the Boy Scouts of America to exclude a gay scoutmaster whose sexual identity, according to the BSA, undermined the BSA’s promotion of traditional sexual morality.9 In all these cases, the Court rejected the argument that the government’s purported compelling interest in eradicating discrimination trumped the First Amendment.
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In theory, the Constitution’s protection of civil liberties is inviolate and therefore not subject to changing intellectual fashion. In practice, however, history teaches that when constitutional provisions lose the support of the public, and especially the support of the legal elite from which federal judges are drawn, those provisions are enervated. Judges will continue to pay lip service to such provisions, but they will fail to properly enforce them until eventually they lose all force.
Given this dynamic, the prospect for continued judicial protection of civil liberties when they impinge upon antidiscrimination concerns is uncertain. Many academics are already disparaging constitutional protection of freedom of expression. Over the last two decades, radical scholars, including many feminists and ‘‘critical race’’ theorists, have vociferously attacked the First Amendment as a barrier to the government’s ability to pursue sexual and racial equality. Anti–free speech feminists have stated that they would ban what they call ‘‘expressive means of practicing inequality,’’ such as publishing ‘‘academic books purporting to document women’s biological inferiority to men . . . or [claiming] that reports of rape are routinely fabricated.’’10 Critical race theorists, meanwhile, suggest that racist expression is ‘‘so dangerous, and so tied to perpetuation of violence and degradation of the very classes of human beings who are least equipped to respond, that it is properly treated as outside of the realm of protected discourse.’’11 From their ivory towers at Harvard, Yale, Chicago, and other elite universities, influential liberal law professors increasingly echo the feminists’ and critical race theorists’ views.12 The First Amendment is therefore in dire need of a powerful, consistent, defense.
The primary civil libertarian defense of freedom of expression from government suppression is that such freedom is necessary to ensure the existence of a robust marketplace of ideas. Advocates of this position suggest that freedom of expression helps ensure the triumph of reason over prejudice, of enlightened public opinion over entrenched political and economic power. This argument has some force, given the notable successes of the marketplace of ideas in recent American history. In the 1940s, Catholics and Jews were excluded from many universities, private clubs, and corporations; African Americans were segregated by law in the South and subjected to routine discrimination almost everywhere else; Japanese Americans were incarcerated in internment camps; American Indian children were frequently removed from their parents and forcibly assimilated in boarding schools; and male homosexuals were thought to be pedophiles and perverts, and with few exceptions felt obliged to live closeted lives. Sixty years later, the status of all of these groups has improved dramatically. The remarkable social and political transformation in the status of American minority groups was possible only because the Constitution’s guarantee of freedom of expression prevented defenders of the discriminatory status quo from using government power to stifle challenges to orthodox attitudes.
Nevertheless, critics of freedom of expression argue that the marketplace of ideas paradigm is an inadequate justification for inhibiting government regulation of speech. They point out that the unregulated marketplace of ideas is highly imperfect, and indeed far less effective than an unregulated economic market when it comes to protecting minorities. Economists point out that a free economic market protects minorities from discrimination to some degree because businesspeople have an economic incentive to hire the most productive workers and to obtain the most customers. Concern for the financial bottom line mitigates the temptation of business owners to indulge their prejudices.
However, minorities get comparatively little innate protection in the political marketplace of ideas because individual citizens have no corresponding incentive (economic or otherwise) to overlook or overcome personal prejudices or opinions about minorities. The average citizen seeking an ideology to guide his voting and other political activity has virtually no incentive to seek and find truth, especially because his opinion is highly unlikely to be decisive on any given matter. Even voters who genuinely seek the truth regarding particular issues will have difficulty finding it. The human mind is cognitively limited and much more suited for certain tasks, such as pursuing economic self-interest, than for others, such as adopting sensible ideological positions. As Nobel economics laureate Ronald Coase points out, ‘‘It’s easier for people to discover that they have a bad can of peaches than it is for them to discover that they have a bad idea.’’13 Moreover, while in competitive economic markets minorities can generally find safe havens in the private sector even if most organizations discriminate, there is no safe haven for minorities if racist ideas dominate politics and find their way into law.
If anything, then, restrictions on speech that denigrates vulnerable groups are more likely to protect minorities and women over time than are laws banning discrimination in employment. Free speech critics exploit the power of this point by criticizing liberal civil libertarians who vigorously oppose laissez faire economics, especially when it comes to protecting minorities from discrimination, but support an unregulated marketplace of ideas.14 If the government can make the economic marketplace fairer and more efficient by regulating it, they ask, why can the government not do the same for the less-efficient speech marketplace?
One answer, provided by law and economics luminaries such as Ronald Coase and Richard Epstein, is that government regulation of the economic marketplace is at least as wrongheaded as government regulation of the marketplace of ideas. Epstein therefore argues in favor of both the robust protection of First Amendment liberties and the repeal of antidiscrimination laws that apply to private parties.15 Indeed, Epstein suggests that these two policies are synergistic, because he doubts that the freedoms of speech and religion can ultimately be defended from antidiscrimination laws once it is conceded that an antidiscrimination norm is an appropriate legal limit on freedom of contract.
But even civil libertarians who strongly support basic employment and housing discrimination laws can offer a compelling rejoinder to those who advocate allowing such laws to run roughshod over the First Amendment. In contrast to the Panglossian straw men that censorship advocates build and demolish, realistic civil libertarians recognize that the free marketplace of ideas is imperfect, perhaps highly so. However, civil libertarians also recognize that they must still ask the most important question in political economy: compared with what? Although much private speech is wrongheaded or even dangerous, it is even more dangerous to put the government in charge of policing it.16
The alternative to allowing an unregulated speech marketplace is permitting government censorship, leaving ‘‘the government in control of all the institutions of culture, the great censor and director of which thoughts are good for us.’’17 For good reason, civil libertarians believe that the government cannot be trusted with the power to establish an official orthodoxy on any issue, cultural or political, or to ensure the ‘‘fairness’’ of political debate. As one scholar puts it, ‘‘freedom of speech is based in large part on a distrust of the ability of government to make the necessary distinctions, a distrust of government determinations of truth and falsity, an appreciation of the fallibility of political leaders, and a somewhat deeper distrust of governmental power in a more general sense.’’18
Freedom of expression is necessary to prevent government from entrenching itself and expanding its power at the expense of the public. As federal court of appeals judge Frank Easterbrook wrote in an opinion striking down an antipornography statute inspired by academic feminists, ‘‘free speech has been on balance an ally of those seeking change. Governments that want stasis start by restricting speech.... Without a strong guarantee of freedom of speech, there is no effective right to challenge what is.’’19 First Amendment scholar John McGinnis likewise notes that government officials have a natural tendency to suppress speech antithetical to their interests. As McGinnis notes, the free flow of information related to politics and culture threatens ‘‘government hierarchies both by rearranging coalitions and revealing facts that will prompt political action.’’20
The framers of the American Constitution also recognized that government is in constant danger of capture by factions that desire to use the government for their own private ends, a phenomenon known in modern academic literature as ‘‘rent-seeking.’’ The Constitution and Bill of Rights were intended to establish a system of government that limits such rent-seeking. The First Amendment’s protection of freedom of expression is particularly important in this regard. The founders believed that once in power, factions would exploit any government authority to regulate speech in self-serving ways. The founders’ insights have been confirmed by experience around the world and by modern research into human political behavior by economists and evolutionary psychologists. Permitting government regulation of information relating to politics or culture would come at a very high price to society.21
Contrary to the insinuations of some critics,22 then, all but the most starry-eyed civil libertarians recognize that freedom of expression can have many negative side effects, or, as economists put it, negative externalities. But civil libertarians are also familiar with the voracious lust for power and pursuit of self-interest endemic in politicians and their rent-seeking allies. Civil libertarians apply the cold calculus that the negative externalities caused by government regulation are likely to outweigh any negative externalities that arise from freedom of expression. Or, more simply put, civil libertarians believe that allowing politicians to decide the scope of freedom of speech is simply more dangerous than any damage the speech itself may cause. This is especially true in the United States. In contrast to more statist social systems, the United States has largely maintained a Tocquevillian nature, in which political and cultural innovations arise from the grass roots, not from the government. Freedom of expression is therefore necessary for economic and cultural progress.23
Some scholars recognize the dangers of government regulation of speech but still call for limited censorship to achieve what they consider particularly important antidiscrimination ends. Professor Andrew Koppelman of Northwestern University, for example, argues that there should be a presumption in favor of freedom of expression because ‘‘[r]acist speech may be substantively worthless, but outlawing it would give the state the power to decide which political views are worthless because racist.’’ However, although Koppelman acknowledges that government power to censor speech can be ‘‘easily abused,’’ he adds that censorship can be justified if the speech in question is ‘‘exceedingly harmful.’’24 Koppelman believes that in such cases ‘‘a significant, but limited, infringement on free speech’’ is appropriate. He says he would discard any speech restrictions once they had served their purpose of achieving ‘‘work-place equality’’ for previously excluded minorities and women.
Koppelman’s proposal demonstrates the dangers of divorcing political philosophy from practical political economy. He never clarifies how the government could objectively determine which speech is sufficiently harmful to merit censorship. With the First Amendment effectively nullified under Koppelman’s preferred regime, censorship decisions would ultimately be made through ordinary politics, in which voter ignorance, rent-seeking, and similar problems would arise. In the long run, speech restrictions would likely serve the interests of dominant political factions, with no guarantee that those factions would represent the progressive political forces Koppelman supports.
Moreover, even assuming speech restrictions could be limited to the goals set for them by Koppelman, he provides no guidance on how such restrictions would ultimately be abolished once they are in place. He fails to explain how Congress or state legislatures would reach a consensus that the speech restrictions’ goals have been achieved, and how legislators would buck the lobbying power of the interest groups that would inevitably coalesce to defend the restrictions. For example, in the 80-plus years since the end of World War I, Congress has not been able to summon the will to permanently abolish the mohair subsidies that were enacted to ensure fabric availability for World War I military uniforms.25 It hardly seems likely, then, that Congress would have the wherewithal to abolish entrenched censorship rules.
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Some civil libertarians argue that the government should force large private institutions, such as universities and large corporations, to adhere to ‘‘First Amendment standards.’’ In other words, the government should prohibit large private institutions from penalizing expression if the government itself could not lawfully punish that expression. For example, the California affiliate of the American Civil Liberties Union supported a state law that requires private high schools and universities to permit any speech that the First Amendment requires a public school to tolerate.26 The national ACLU then backed a bill introduced in the U.S. House and Senate that would have extended that rule to universities nationwide.27
As we have seen, the underlying rationale for the First Amendment is to protect the private sector from government regulation of speech. Moreover, the First Amendment—‘‘Congress [and, under modern doctrine, the states] shall make no law’’—applies only to the government. The ACLU’s argument that the government should impose ‘‘First Amendment standards’’ on the private sector is therefore paradoxical. A constitutionally based, normatively sound civil libertarian perspective dictates instead that private entities must be free to adopt idiosyncratic policies regarding expression, even if powerful lobbying groups such as the ACLU believe such policies are unwise. As Professor Randall Kennedy of Harvard Law School suggests, the proper response to private-sector experimentation with speech rules is to ‘‘let a thousand flowers bloom.’’28 Indeed, Supreme Court precedent suggests that the First Amendment prohibits the government from interfering with private institutions as they promote and defend particular ideological orthodoxies.29
An exception to the principle that civil liberties concerns are not implicated when private institutions adopt speech rules arises when a private institution adopts a speech rule because the law requires it to do so. For example, a university speech code adopted to comply with sexual harassment laws is an indirect regulation of speech by the government, not a voluntary speech restriction by a private institution. From a First Amendment perspective, such indirect government censorship is just as problematic as direct government control over speech.
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Some scholars, most prominently law professor and literary critic Stanley Fish of the University of Illinois at Chicago, argue that neutral protection of freedom of expression is impossible. In our society, the task of interpreting the First Amendment falls mainly to the judiciary, and Fish argues that judicial invocation of freedom of expression merely masks politically motivated actions. Therefore, according to Fish, the only question worth discussing is who will get the power to censor whom.30
Fish is correct that judges are not Platonic guardians immune from political motivation. However, that does not mean that judges are motivated solely, or even primarily, by politics. Fish’s left-wing academic allies have faulted ‘‘law and economics’’ scholars for relying on too narrow a view of human nature. In particular, economists tend to treat individuals as rational utility-maximizers, while ignoring the powerful roles played by psychology and social norms in shaping behavior. Fish likewise ignores the role played by psychology and social norms in shaping judicial behavior. Judges who are trained from their law school days that the role of the judiciary is to fairly enforce constitutional rights will find their self-image bound up in their ability to eschew personal prejudices and act fairly. This has practical consequences. For example, federal judges in the late 19th and mid-20th century protected the rights of Chinese immigrants and African Americans, respectively, even though the judges often had little personal sympathy for these minority groups’ aspirations, and even though local political culture was strongly hostile to those groups.31 Political temptations will always exist for judges, but they will remain tempered by the norm of judicial objectivity—unless Fish and his colleagues succeed in destroying that norm by persuading judges that law and politics are indistinguishable.
Another irony is that Fish and his allies attack claims of neutrality by ‘‘employ[ing] an epistemology that denies all eternal verities.’’ Simultaneously, however, ‘‘they establish current notions of racial and gender equality as an unquestionable, transcendent truth.’’32 For example, Fish writes that ‘‘‘[f]ree speech’ is just the name we give to verbal behavior that serves the substantive agendas we wish to advance; and we give our preferred verbal behaviors that name when we can, when we have the power to do so, because in the rhetoric of American life, the label ‘free speech’ is the one you want your favorites to wear.’’33 Because the concept of freedom of expression is merely a political device to promote particular agendas, according to Fish, there is no reason to suffer racist and sexist expression in its name, given the dangers such speech poses to the dignity and equality of its targets.34 Yet if we accept Fish’s view that there is ‘‘no such thing as free speech’’ because everything comes down to politics, then surely there can be no such thing as ‘‘dignity’’ or ‘‘equality’’ either. Those who argue that purportedly illusory notions of freedom of speech should be sacrificed to equalitarian commitments that are based on notions at least as delusive cannot possibly explain why.
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Protecting freedom of expression from government regulation will ultimately benefit left-wing scholars who support censorship, such as radical feminists and critical race theorists, as much as anyone. These scholars advocate speech regulations while living primarily in the very left-wing academic world, where their views are only marginally out of the mainstream. Yet, if the First Amendment is weakened sufficiently by antidiscrimination law and the government gains the power to suppress speech more broadly, radical feminists and critical race theorists, as holders of views wildly at variance with those of the public at large, are likely to be among the new censorship’s first victims. That leftists writing in a society that has long been, and continues to be, hostile to their ideologies would want to weaken the principle that government may not suppress unpopular expression seems counterintuitive and shortsighted, to say the least.35
Indeed, many critical race scholars and radical feminists argue that the United States is innately and irredeemably racist and sexist. One need not accept this vision to realize that the Critical-Race-and-Radical-Feminist-Party, if such a thing existed, would not exactly take the American electorate by storm, at least not anytime soon. Because many critical race theorists and feminists claim to believe that American society is so hostile to their values, they should find constitutional protections against the majority especially important.
Of course, left-wing censors imagine a world in which the government silences only their ideological enemies, and they advocate censorship as an integral part of a much broader scheme for reconstructing society along egalitarian lines. Yet, it should be a cardinal principle of political advocacy that one should not support a regime with regulatory powers that one would not want applied to oneself. Acceptance of this principle would not only reduce hypocrisy, it would also remind political activists that politics is unpredictable and driven by power rather than morality. Power granted to government is often ultimately used against those who advocated that the power be exercised against others. As Yale political science professor William Graham Sumner remarked many years ago, ‘‘The advocate of [government] interference takes it for granted that he and his associates will have the administration of their legislative device in their own hands.... They never appear to remember that the device, when once set up, will itself be the prize of a struggle; that it will serve one set of purposes as well as another, so that after all the only serious question is: who will get it?’’36