You Can't Ask (or Say) That: The First Amendment and Civil Rights Restrictions on Decisionmaker Speech

Abstract

Many antidiscrimination statutes limit speech by employers, landlords, lenders, and other decisionmakers in one or both of two ways: (1) by prohibiting queries soliciting information about an applicant's disability, sexual orientation, marital status, or other protected characteristic; and (2) by proscribing discriminatory advertisements or other expressions of discriminatory preference for applicants based on race, sex, age, sexual orientation, or other protected characteristics. This Article explores how we might think about these laws for First Amendment purposes. Part I outlines the range of civil rights restrictions on decisionmaker speech, while Part II identifies the antidiscrimination and privacy concerns that drive their enactment. Part III explores in some detail whether - and, if so, how - these civil rights laws fit within the Supreme Court's current commercial speech jurisprudence. I conclude that the restricted speech is most appropriately characterized as unprotected commercial expression because it skews, rather than educates, listeners' choices by facilitating illegal discrimination and deterring applicants from pursuing important opportunities. By sorting these communications according to their ability to contribute to listeners' paramount interest in informed decisionmaking, the Court's modern commercial speech doctrine most directly explains why these laws (like consumer protection statutes prohibiting deceptive and misleading representations) do not run afoul of free speech values. Because commercial speech doctrine is currently the subject of controversy and thus may be subject to change, Part IV goes on to assess other potential First Amendment approaches to this problem. I pose a series of queries at various points along the continuum of First Amendment protections: Is decisionmaker speech unprotected because it is more like discriminatory conduct than expression? If it is speech, is its value nevertheless sufficiently low to warrant something less than full protection? If it is fully protected expression, does the government's regulation of it nonetheless survive strict scrutiny? These approaches offer different ways to describe the same phenomenon: a specific context where speech is so closely tied to discriminatory action as to justify its regulation.