Restroom Use, Civil Rights, and Free Speech ‘Opportunism’

Abstract

Commentators have expressed concerns that litigants are invoking the First Amendment’s Free Speech Clause strategically, in order to compensate for the weakness or futility of other constitutional claims. The phenomenon has been given a label — “opportunism” — and scholars have examined some of its causes and consequences. This Article takes a closer and somewhat skeptical look at the concept of free speech “opportunism.” It imagines that the Free Speech Clause will be invoked in challenges to laws or policies that restrict public restroom use based on a person’s gender. Would such challenges be “opportunistic,” as the term has been defined? What would such claims tell us about the causes and consequences of invoking the Free Speech Clause, particularly in situations where it appears to be a second-best claim? Drawing lessons from the restroom example, as well as the broader civil rights free speech tradition, the Article argues for greater precision and caution when affixing the “opportunism” label. It also contends that while strategic free speech claims could produce certain costs, they might also produce some under-appreciated benefits. Ultimately, the Article suggests that criticisms of particular litigants or claims seem misdirected. The real concern appears to be the substance of free speech doctrines and theories. These facilitate free speech entrepreneurism, but may also produce an expansionist Free Speech Clause that subordinates and supplants other constitutional rights.

Keywords: Free Speech, Transgender, Restroom, Civil Rights