Discrimination, The Speech That Enables It, And The First Amendment

Abstract

Imagine that you’re interviewing for your dream job, only to be asked by the hiring committee whether you’re pregnant. Or HIV-positive. Or Muslim. Does the First Amendment protect your interviewers’ inquiries from government regulation? This Article explores that question.

Antidiscrimination laws forbid employers, housing providers, insurers, lenders, and other gatekeepers from relying on certain characteristics in their decisionmaking. Many of these laws also regulate those actors’ speech by prohibiting them from inquiring about applicants’ protected class characteristics: these provisions seek to stop illegal discrimination before it occurs by preventing gatekeepers from eliciting information that would enable them to discriminate. Although for decades these laws generated little if any First Amendment controversy, they now face new constitutional attacks inspired by the antiregulatory turn in the Supreme Court’s Free Speech Clause doctrine.

Part I of this Article starts by describing how gatekeepers’ inquiries about applicants’ protected characteristics enable illegal discrimination. It then outlines the wide variety of efforts by federal, state, and local legislatures to tackle thorny problems of inequality by restricting gatekeepers’ inquiries about applicants’ protected characteristics. Next, it identifies the potential collision course between these measures and the recent antiregulatory turn in First Amendment law and litigation.

Part II examines the theory and doctrine that support these laws’ constitutionality, explaining why the First Amendment permits the government to restrict speech that initiates or accomplishes conduct that the government has legitimately regulated—speech that does something and not just says something, to use legal scholar Kent Greenawalt’s vocabulary. As an illustration of speech that is unprotected because it initiates or accomplishes illegal conduct, consider a gatekeeper’s statement “White Applicants Only” that declares certain transactions and opportunities as off limits to protected class members: such speech in these transactional settings does something and not just says something precisely because of gatekeepers' power over the transaction. Once we understand why the First Amendment does not protect those statements, we can see that the First Amendment similarly permits the government to regulate gatekeepers’ transaction-related inquiries about candidates’ protected class status—inquiries that enable illegal discrimination by deterring candidates based on their protected class status and by eliciting the information that facilitates gatekeepers’ discriminatory decisions.

Part II next explains how the Court’s longstanding commercial speech doctrine captures these insights by holding that the First Amendment does not protect commercial speech related to illegal activity. It then applies this doctrine to the antidiscrimination laws identified in Part I, concluding that the government’s restriction of gatekeepers’ inquiries about applicants’ protected class status triggers no First Amendment scrutiny because those inquiries constitute commercial speech related to the illegal activity of discriminatory employment, housing, and other transactions.

Part III briefly considers the First Amendment implications of other antidiscrimination provisions that regulate transactional parties’ speech in various ways, sometimes by restricting speech and sometimes by requiring it. It shows how here too the Court’s commercial speech doctrine provides the relevant analysis, with its focus on protecting speech that furthers listeners’ First Amendment interests while permitting the regulation of speech that frustrates those interests.

Keywords: discrimination, civil rights, First Amendment, free speech, employment, housing

JEL Classification: K1, K10, K22, K23, K31, K42