“Free Speech Has Been a Powerful Force for the Spread of Equality Under the Law”;

“we must not squelch that freedom because it may also be harnessed by those who promote retrograde or unattractive ways of thought.” So writes the Ninth Circuit in today’s Rodriguez opinion, in an important holding about the interaction of the First and Fourteenth Amendments.

I’ve written before against arguments that First Amendment rights need to be weighed against Fourteenth Amendment equality values, in a way that might justify restricting allegedly bigoted speech; I likewise criticize calls (whether from the left or the right) to weigh free speech rights against constitutional democracy values, constitutional privacy values, and the like. One of my arguments is that bigoted speech doesn’t actually violate the Equal Protection Clause, and to the extent that it offends “equal protection values,” those “values” can’t be seen as trumping First Amendment rights. But today’s Rodriguez opinion from the Ninth Circuit had a special twist on this constitutional conflict argument.

The premise of hostile environment harassment law, under which speech in workplaces, educational institutions, places of public accommodation, and the like could lead to liability, is this: An employer, educational institution, or place of public accommodation that tolerates speech or conduct that creates a hostile environment based on race/religion/sex/etc. for some of its patron is discriminatorily providing a worse environment to some people than to others. Therefore, the courts have held, the institution is violating statutes that ban such discrimination, and can be held liable under such statutes (for instance, Title VII of the Civil Rights Act of 1964 or similar state laws).

Now here’s the twist: The Equal Protection Clause has been held to bar discrimination based on race/religion/sex/etc. by government entities, even in the absence of any statute. Therefore, by the same logic as in the preceding paragraph, it has been read as barring government entities’ tolerating hostile work environments as well. So, the argument would go, in such a situation there is indeed a conflict between actual Equal Protection Clause rights (the right not to have a discriminatorily hostile environment tolerated by a government employer, educator, etc.) and First Amendment rights. The Rodriguez opinion confronted this argument, and while the treatment is fairly brief — this is a court opinion, not a law review article — it struck me as quite effective:

These First Amendment principles must guide our interpretation of the right to be free of purposeful workplace harass ment under the Equal Protection Clause. When Congress enacted the Fourteenth Amendment, it enshrined a concept of liberty that has been understood to include the “general principle of free speech.” Gitlow, 268 U.S. at 672 (Holmes, J., dissenting); see also Meyer v. Nebraska, 262 U.S. 390, 400 (1923). And, in Meyer, the Supreme Court relied on the fact that the “American people have always regarded education and acquisition of knowledge as matters of supreme importance” to find that the Fourteenth Amendment protected a teacher’s right “to teach and the right of parents to engage him so to instruct their children.” Id. Since then, the Fourteenth Amendment has consistently been held to incorporate the First Amendment’s protection of free speech and academic freedom against the states.

History likewise suggests that the Fourteenth Amendment was intended to extend, and not retract, the freedoms enshrined in the First. In the run up to the Civil War, professors and colleges played a key role in the spread of abolitionist ideas. See Robert Bruce Slater, The American Colleges That Led the Abolition Movement, J. Blacks in Higher Educ., Sept. 1995 at 95-97. The South moved to harshly suppress abolitionism as dangerous and incendiary, and Republicans responded by making “demands for free speech a centerpiece of their political program.” Michael Kent Curtis, The 1859 Crisis Over Hinton Helper’s Book, The Impending Crisis: Free Speech, Slavery, and Some Light on the Meaning of the First Section of the Fourteenth Amendment, 68 Chi.-Kent L. Rev. 1113, 1151 (1993); see also id. at 1131, 1134-38. It can hardly be surprising, then, that the Reconstruction Congress sought to protect freedom of speech along with other fundamental liberties when it enacted the Fourteenth Amendment. See, e.g., id. at 1172-74. Free speech has been a powerful force for the spread of equality under the law; we must not squelch that freedom because it may also be harnessed by those who promote retrograde or unattractive ways of thought.