Saturday, October 7, 2017

How Anti-Discrimination Laws Undermine Free Speech

Laws banning private sector discrimination, including the 1964 Civil Rights Act, are and have had severe and negative unintended (or not-so-unintended) consequences for freedom, justice, and economics. The consequences include stifling of men’s college sports, the roots of the 2008 financial crisis, and undermining of First Amendment guarantees to the rights to freedom of religion and freedom of association. (See my essays on the subject here.)

The firing of the Google employee for an alleged “anti-diversity rant” (which was actually no such thing) and ensuing uproar has exposed yet another threat; the undermining of the sacred right to freedom of speech. As CATO senior fellow Walter Olson writes for USA Today, the Google memo drama really is about free speech. As Olson explains:

Jonathan Rauch, for example, in the New Republic in 1997, wrote that "quietly, gradually, the workplace has become an exception" to the general rule that in America the law does not seek to restrain wrongful opinion and expression.

And Rauch explained the indirect mechanism by which this has come to pass: "What the government cannot do directly, it now requires employers to do in its stead: police 'discriminatory' speech."

Now, as then, government pressure on employers to ban speech consists less of direct you-must-ban mandates and more of litigation incentives whose contours are not explicitly announced.

Legal or HR departments will counsel an employer that allowing certain instances or categories of bad speech to go undisciplined might be an offense under Title VII anti-discrimination law, or evidence of one. [Emphasis added]

Now, just as two decades ago, many outsiders look at a firing-over-speech and say it's just a private firm's decision. No public policy or First Amendment implications, right?

Not always, Olson argues persuasively. You should read the whole article.

Bad law generates bad outcomes for freedom, economics, and justice. Anti-discrimination laws targeted at the private sector is bad law. Such laws should be repealed. The best way to deal with bad behavior that does not itself violate individual rights, such a racial or gender discrimination, is to let free people sift out and expose the bad behavior. Trying to outlaw immoral behavior with one-size-fits-all bans only makes matters worse.

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