Nothing is more repugnant to the First Amendment’s protection of freedom of expression than the government’s compelling individuals to express views contrary to their actual beliefs. As Justice Robert Jackson wrote for the Supreme Court almost 60 years ago, the nation cannot logically have a First Amendment that ‘‘guards the individual’s right to speak his own mind, but left [sic] it open to public authorities to compel him to utter what is not on his mind.’’1
Despite these serious First Amendment considerations, an increasingly common method of punishing violators of antidiscrimination laws is to compel them to speak against their beliefs, as the case of Roy Frankhouser illustrates. Frankhouser, a Ku Klux Klan supporter with a long arrest record, harassed and intimidated Bonnie Jouhari, a fair-housing specialist for the Reading-Berks County Human Relations Council in Reading, Pennsylvania. Frankhouser sat on a public bench outside Jouhari’s office and photographed her through the window. When Jouhari appeared on a television talk show, Frank-houser called in to warn her that ‘‘we’re always keeping an eye on you.’’ Even more ominous, Frankhouser displayed a picture of her obtained from a local neo-Nazi Web site on his ‘‘White Forum’’ public access cable television show. As on the Web site, the picture shown on television had a threatening caption: ‘‘Traitors like this should beware, for in our day, they will be hung from the neck from the nearest tree or lamppost.’’ Jouhari decided to move to the West Coast—in part to get away from Frankhouser—but he continued to unnerve her until the last moment by appearing uninvited at the local bar that hosted her going-away party.2
The U.S. Justice Department and the local police declined to prosecute Frankhouser, because officials determined that his obnoxious behavior did not rise to the level of an actual threat, and he was therefore acting within his First Amendment rights. This decision was sound based on current First Amendment doctrine, which probably protects implicitly threatening speech more than it should. In January 1999, an administrative law judge with the federal Department of Housing and Urban Development did charge the owner of the neo-Nazi Web site with violating the Fair Housing Act by threatening Jouhari. The judge, however, found no reasonable cause for charging Frankhouser, who had ‘‘reported’’ the threat by discussing it on his television show, but had never explicitly endorsed it.
A month later, however, the assistant secretary for fair housing and equal opportunity ordered that misdemeanor charges be brought against Frankhouser. Ultimately, the impecunious, unemployable Frankhouser agreed to a settlement. He promised to stay 100 feet away from Jouhari and her daughter and to pay Jouhari five percent of his annual salary for 10 years, in the unlikely event that it ever exceeded $25,000.3 Frankhouser agreed to never mention Jouhari’s name again and to attend HUD-sponsored sensitivity training. Frankhouser was also required to apologize to Jouhari on his ‘‘White Forum’’ television show and in letters to local newspapers, to broadcast HUD fair housing public service announcements as part of his television show, to read a government-scripted introduction to those announcements, and to display on the front of his house a poster produced by HUD, inveighing against discrimination in housing sales and rentals.
HUD Secretary Andrew Cuomo announced that ‘‘this settlement makes a very loud statement, not just to this particular case but to anyone who would think of engaging or involving themselves in this hideous type of behavior.’’4 Columnist Michael Kelly, by contrast, interpreted the ‘‘statement’’ made by the settlement as, among other things, that the government may force an individual ‘‘to curtail his speech,’’ to take reeducation classes, and to ‘‘make statements contrary to his beliefs.’’5
Not surprisingly, Frankhouser was not rehabilitated. ‘‘Clinton and Andrew Cuomo can kiss my rebel derriere,’’ Frankhouser told columnist Dennis Roddy. ‘‘Yeah, I’m a sensitive guy. I’ll end up liking gays, marry a [black] and maybe move to Mexico later on.’’ Frank-houser said of his sensitivity training, ‘‘Hey, if the taxpayers want to foot the bill, God bless ’em. If they don’t give me lunch, I won’t go.’’ Roddy opined that ‘‘[w]hen an irredeemable racist is sent to sensitivity training and made to say things he doesn’t believe on a show that caters to an audience that won’t listen, we are only left to remember how foolish a country gets to look when its secretary of housing becomes a closet attorney general.’’6
Indeed, during the Clinton administration, HUD was the federal agency that most consistently violated civil liberties on behalf of an antidiscrimination agenda. HUD’s overzealousness went well beyond the Frankhouser case. As part of its war against neighborhood organizations that oppose local group housing initiatives (see Chapter 4), HUD tried to compel these organizations not only to give up their right to express their opinions but also to affirmatively support HUD’s objectives. For example, a Seattle citizens’ group, the Capitol Hill Association for Parity, opposed the proposed establishment by Pioneeer Housing Services of a complex of five buildings on one block to house the mentally ill and recovering addicts. HUD accused CHAP of violating the Fair Housing Act, and offered a conciliation agreement to avoid litigation.7 Among other things, the agreement required the group to write to everyone on its mailing list in support of the PHS development, and to sponsor a block party ‘‘to which all residents, including residents of PHS housing, will be invited.’’ The agreement specified that the group ‘‘shall solicit support for the block party from local businesses, and will ensure that free entertainment and inexpensive food are provided.’’ HUD eventually dropped the case under public pressure.
Another case in which compelled speech was invoked as a remedy for discrimination involved Union Market, a store in Springfield, Massachusetts. After finding that a Union Market supervisor had discriminated against a Puerto Rican worker, the Massachusetts Commission Against Discrimination ordered standard remedies, including requiring back wages and emotional distress damages to be paid. However, the MCAD also required Union Market to ‘‘sponsor an event celebrating the Latino history and culture, drawing upon the resources of leaders and civic organizations servicing the Springfield Latino community.’’8
The MCAD justified this extraordinary remedy on the grounds that most of Union Market’s employees and customers are Puerto Rican. ‘‘It not only provides an opportunity for the market to demonstrate its goodwill,’’ the hearing officer wrote, ‘‘it sends a message to businesses . . . that they should honor the people they serve and show they appreciate their patronage.’’ The MCAD did not attempt to explain how the commonwealth could require Union Market to ‘‘honor’’ customers of a certain ethnic group and to demonstrate that the store ‘‘appreciates their patronage’’ without violating the First Amendment. The First Amendment issue is especially problematic in this case because it was an employee, not a customer, who complained of discrimination, so it is difficult to argue that the compelled speech honoring Latino customers was necessary to remediate a specific harm caused by a violation of the law.
The MCAD also dictated speech to a Boston bar owner charged with discrimination. In February 2000, the owner put up a display comprising vines, stuffed monkeys, a large stuffed gorilla wearing a crown, a wooden figure holding a spear, and coconuts painted with black faces and large red lips. A sign behind the stuffed animals proclaimed, ‘‘Hey, hey, we’re the monkeys.’’ The owner claimed he put up this display annually ‘‘because it’s the dead of winter. People are sick of winter and want to go into a bar with a tropical flair.’’9 He noted that the tropical display was part of a rotating series— frogs in the spring, fish in the summer, elephants and donkeys at election time. However, a bartender allegedly told patrons that the display mocked Black History Month and that the regal gorilla represented Martin Luther King Jr. When a report of the incident appeared in the Boston Herald , the chairman of the MCAD initiated proceedings against the bar for allegedly creating a hostile environment for African American patrons.10 Rather than litigate, the bar owner agreed to the Commission’s demands that he apologize and contribute money to events ‘‘addressing the topic of the history and contributions of Irish Americans and African Americans.’’11 Surprisingly, the MCAD did not respond to the bar owner’s annual display of frogs by requiring him to contribute money to events addressing the topic of the history and contributions of French Americans.
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Government authorities have also sought to dictate to commercial entities the content of their advertisements. The Fair Housing Act, for example, has been construed to regulate the content of real estate advertisements. Federal regulations—currently suspended while HUD completes a review of possible conflicts between its regulations and the First Amendment—state that to prevent an inference that an advertiser prefers tenants from certain groups, if human models are used in display advertising campaigns, ‘‘the models should be clearly definable as reasonably representing majority and minority groups in the metropolitan area.’’12 In other words, if you are a developer setting up a magazine ad to sell units in a new condominium complex, you had better be sure that some of those happy people cavorting in the pool and soaking up sun on their balconies are not white.
Liability for failure to use a suitably diverse group of human models extends not only to the party that places the ad but also to the newspaper publishing the ad and the ad agency that designed it. Several courts have agreed with HUD on this interpretation of the Fair Housing Act.13 One court held that an ordinary reader, seeing ads that contained only white models, ‘‘would naturally infer from these ads . . . that white individuals were preferred as tenants.’’14 Therefore, such ads violate the Fair Housing Act’s ban on advertising that indicates a preference on the basis of race.
A federal appellate court rebuked the New York Times for suggesting that the only way to avoid a lawsuit—and potential liability for hundreds of thousands of dollars in damages15—under HUD’s interpretation of the Fair Housing Act would be to institute quotas for African American models.16 Yet the Washington Post was soon compelled to do exactly that. The Post avoided litigation only by agreeing with a local activist group that the newspaper would require a minimum of 25 percent African American models in all housing display ads.17 One real estate company that faced claims for discriminatory advertising sought to avoid future liability by ending its use of human models entirely, only to be ordered by a federal court to first expiate its past sins by placing ads featuring racially diverse models.18
Fair housing laws protect many groups besides African Americans; in theory, advertisers who use human models and do not include Asians, Latinos, Hasidic Jews, disabled individuals, or families with children could be held liable for discrimination.19 (The ad that did comply with such silly standards would be decidedly amusing to behold. The Afro-Asian Lubavitcher and his wheelchair-bound Latino daughter . . .) A federal judge has specifically argued that advertisements that did not feature all groups protected by the Fair Housing Act in proportion to their representation in the local metropolitan area could be found to be discriminatory.20 Predictably, the result of all this has been that advertisers have given up on trying to meet such unreasonable standards; human models are now rarely used in real estate advertising. Ironically, the exception to this trend is on those occasions when HUD requires developers participating in certain federal housing programs to develop and implement ‘‘affirmative fair housing’’ marketing plans, which must include advertising specifically designed to appeal to groups that are not likely to apply for the housing.21
At one time, HUD’s regulations clearly imposed liability for ‘‘discriminatory advertising’’ regardless of the intent of the advertiser. For example, the fact that it hadn’t occurred to an apartment complex owner to include a couple of kids in the ad for downtown studios was no defense under the regulations to a charge of discrimination against families with children. HUD suspended those regulations as part of a general effort to get closer to the right side of the First Amendment, but the department stopped short of promulgating new regulations limiting liability to intentional discriminators. HUD currently takes no official position on whether discriminatory intent is necessary for advertising to violate the Fair Housing Act, instead leaving the issue up to the courts.22 Some courts, meanwhile, do require plaintiffs to prove intent in human model cases.23 One federal appellate court reasoned that forcing advertisers and newspapers that had no discriminatory intent to consider the race of advertising models would violate the First Amendment by chilling commercial speech.24
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In contrast to HUD rules requiring real estate companies to have ‘‘inclusive’’ advertising if they advertise at all, the Equal Employment Opportunity Commission has prosecuted some employers for not advertising. The Chicago office of the EEOC has made something of a cottage industry out of suing small businesses that hire workers primarily through word of mouth, rather than through help-wanted ads placed in large-circulation newspapers. The department claims that the result of such hiring practices is a statistically determined ‘‘underrepresentation’’ of African Americans at the companies at issue.
For example, the agency went after Andrew Hwang, a Korean immigrant who owned Consolidated Service Systems, a small Chicago-based janitorial services company.25 Hwang found his employees mostly by word of mouth in the local Korean community and through the Korean Association of Greater Chicago.26 The EEOC decided that because 95 percent of the Chicago work force is composed of non-Asians, while Consolidated had mostly Korean employees, Consolidated was presumptively guilty of discrimination. The EEOC offered to settle if Consolidated agreed to pay $475,000 in ‘‘back pay’’ to non-Koreans who had applied to Consolidated and (like many Korean applicants) been rejected.27 Consolidated’s annual revenues were only about $400,000, so accepting a $475,000 settlement offer was well beyond Hwang’s means. Not surprisingly, Hwang declined to settle.
The EEOC then sued Hwang and Consolidated in federal court, but the trial court dismissed the EEOC’s case. On agency appeal, Judge Richard Posner wrote a rousing opinion affirming the lower court’s ruling. Posner first stated that small businesses are not required to actively seek out workers from the broad community. He noted that if an employer ‘‘can obtain all the competent workers he wants, at wages no higher than the minimum that he expects to have to pay, without beating the bushes for workers—without in fact spending a cent on recruitment,’’ he will do so to reduce his costs of doing business. Continuing, Posner stated that, notwithstanding the discriminatory impact it may have, word-of-mouth hiring cannot support an inference of intentional discrimination when it is clearly ‘‘the cheapest and most efficient method of recruitment.’’ Posner concluded that ‘‘it is not discrimination, and it is certainly not active discrimination, for an employer to sit back and wait for people willing to work for low wages to apply to him. The fact that they are ethnically or racially uniform does not impose upon him a duty to spend money advertising in the help-wanted columns of the Chicago Tribune .’’
Posner also focused on the important role that small, ethnically based businesses play in the upward mobility of immigrants. Immigrants, Posner wrote, ‘‘tend to cluster in their own communities, united by ties of language, culture, and background.’’ They often form small businesses, the ‘‘first rung on the ladder of American success,’’ and employ ‘‘relatives, friends, and other members of their community, and they obtain new employees by word of mouth.’’ Despite, or perhaps because of, ‘‘their ambition and hard work,’’ recent immigrants ‘‘are frequent targets of discrimination, some of it violent.’’ Posner suggested that ‘‘it would be a bitter irony if the federal agency dedicated to enforcing the antidiscrimination laws succeeded in using those laws to kick these people off the ladder by compelling them to institute costly systems of hiring.’’28 Alas, Hwang’s legal triumph turned out to be Pyrrhic. The huge legal fees he expended in successfully fighting off the EEOC forced Consolidated Service Systems out of business.29
The Chicago office of the EEOC also targeted Ted Grezeskiewicz, a Polish immigrant. After working for 16 years at a spring-making plant that employed mainly fellow Polish immigrants, Grezeskiewicz left in 1966 to form his own business, O & G Spring and Wire Forms Specialty Company. He took many of his former coworkers with him. By the 1980s, Grezeskiewicz employed around 50 workers, almost all of them Polish or Latino immigrants, hired primarily through word of mouth.30
In 1988, the EEOC sued O & G because, according to the agency’s statistical models, O & G’s work force should have been 22 percent African American. Although the EEOC had received no complaints of discrimination, the agency found that O & G’s disproportionate percentage of Polish and Hispanic workers evidenced discrimination.31 The district court sided with the EEOC and required O & G to place an ad in the Chicago Tribune inviting readers to submit claims against O & G.32 More than 400 people eventually submitted claims. Amazingly, the EEOC made no attempt to screen applicants to determine whether or not they had actually sought work at O & G. Instead, the agency demanded that the company pay all of them, at a total cost of $378,754. Some of these purported victims had been in jail during the relevant time periods or had held better paying jobs.33
Grezeskiewicz appealed, but the court sided with the EEOC. Judge Daniel Manion wrote a dissent sharply criticizing the statistical evidence relied upon by the EEOC, the district court, and the appeals court. He quoted Judge Posner’s opinion in the Consolidated Services case and suggested that ‘‘Judge Posner’s prophecy has come to pass in this case.’’34 As for O & G, besides the cost of the remedy, it had to endure 10 years of EEOC investigation and litigation, the company ultimately spending more than $400,000 defending itself.35
The EEOC’s defenders observe that certain hiring policies can reinforce patterns of discrimination by allowing incumbent workers from dominant ethnic groups to choose their colleagues. The EEOC, for example, forced construction unions to adopt antinepotism policies. The unions in question not only had a history of excluding nonwhites but also restricted entry into their occupations through their unions’ membership policies and through control of licensing boards.36 However, the Chicago cases are very different. Polish and Korean immigrants are not established, incumbent workers trying to maintain their status at the expense of African Americans. Rather, they themselves are trying to establish a foothold in the American economy while competing with other Americans who have the advantages of better language skills, more familiarity with the labor market, and often better access to traditional credit.
The reason the Chicago companies sued by the EEOC failed to advertise widely in the media is that newspaper advertisements were obviously an inefficient use of the companies’ limited resources. The Chicago EEOC tried to force small companies that employ mainly immigrants to have the same employment advertising policies as IBM or General Motors, with a public job search for each position and a premium placed on ensuring ethnic diversity. However, for the most part, the jobs offered by the Chicago small businesses in these cases involved low wages and hard work—the type of work generally scorned by native-born Americans of all races. Had these Chicago companies tried to advertise widely for unskilled workers, they would likely have found little interest from the general public, and therefore would have received little bang for their buck.
In contrast, word-of-mouth employment recruitment lowers costs for employers of immigrants. Not only does it save advertising costs, but, as Professor Richard Epstein notes, ‘‘It is easier and cheaper for everyone if Spanish-speaking workers work with Spanish-speaking workers and Polish-speaking workers with Polish-speaking workers, all other things held constant.’’37 Moreover, employees hired through ethnic networks are likely to be reliable individuals, because current employees have vouched for them. Further, small immigrant manufacturing companies can compete with foreign competitors only because of their low labor costs relative to productivity. To the extent the EEOC forces higher employment costs on these businesses, it forces them closer to going out of business.
Finally, as Judge Posner has pointed out, African Americans have their own word-of-mouth job networks. Those would also be threatened by the EEOC’s policies. For example, the Clarence Thomas– Anita Hill hearings revealed a network of African American Yale Law School alumni who refer job candidates to each other, which is how Thomas came to hire Hill. Notwithstanding the antagonistic end to the Thomas-Hill professional relationship, it hardly seems obvious that this sort of networking should be considered illegal discrimination as opposed to a welcome continuation of the African American self-help tradition.
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As a condition of settlement of antidiscrimination lawsuits, the EEOC and private litigants are increasingly demanding that defendant corporations agree to have managers strongly consider supervisors’ vigilance in implementing anti-harassment policies when evaluating those employees’ performances. Even companies that have not been sued are adopting this policy to attempt to avoid future lawsuits. One common criterion used to judge an employee’s zealousness in enforcing anti-harassment policies is whether the employee has expressed his personal support for the policies. An employment law expert asserts that managers must ‘‘communicate to their employees that they agree with, personally believe in, and will enforce the harassment policy.’’38 Yet anti-harassment policies are often controversial within a company, especially when they stifle speech or prohibit dating among coworkers. Employment law expert Walter Olson writes that unless the trend toward requiring absolute fealty to internal anti-harassment policies is reversed, ‘‘those who dissent from the official line, harbor doubts or qualms about it, or for any other reason prove unwilling to announce their enthusiasm for it, will sooner or later find themselves excluded from positions of responsibility in the American corporation.’’39
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The Supreme Court has held that the ‘‘right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.’’40 In a stirring opinion overturning a compulsory flag salute statute in the midst of World War II, the Court wrote,
We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority. . . . If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.41
We should not let antidiscrimination orthodoxy become the first of what would inevitably turn into many such exceptions.