As my colleague Garrett Epps writes, the Trump administration’s brief in that case argues that “the government may not compel an unwilling expressive group or event to admit speakers at odds with its message.” More ominously, Epps writes “‘State laws targeting race-based discrimination may survive heightened First Amendment scrutiny,’ the brief says. That’s because the Supreme Court has decided that combatting even private racial discrimination ‘is the most ‘compelling’ of interests.’”
That “may,” Epps notes, “invite future First Amendment challenges to all kinds of racial protections.”
Try to keep your head from spinning too fast at the Trump administration arguing that an expressive group can deny speakers at odds with its message—the very target of conservative legislative proposals aimed at college campuses—the argument itself could be seen to apply to any belief, such as that black people are inferior and shouldn’t share public spaces with white people. By this logic, compelling businesses of public accommodation not to discriminate, as the Civil Rights Act of 1964 does, could be unconstitutional coercion of individuals to express values they do not hold. That’s a vision of “free speech” that the Nazis rioting in Charlottesville would be delighted with.
It’s also hardly far afield from the origins of the modern conservative movement, born from the embers of Arizona Senator Barry Goldwater’s 1964 candidacy, and whose opposition to the Civil Rights Act was core to his victory in the white South and cementing the region’s turn towards the Republican Party. Ultimately the purpose of the argument before the Supreme Court is to create an exception to anti-discrimination protections large enough to encompass any form of economic activity.
Nor is legalizing discrimination in businesses of public accommodation the only potential consequence of such logic. Some conservatives were outraged when the former Google engineer James Damore was fired for penning a memo that implied men were biologically more inclined towards technical pursuits than women—after initial interviews with several alt-right figures and a public campaign to paint himself as a victim of left-wing political correctness, Damore embarrassed himself by musing publicly about the “coolness” of Klan titles on twitter.
But could any woman who might be supervised by Damore have expected to be evaluated fairly by someone who believed the company’s gender gap was largely the outgrowth of innate, biological differences between men and women? How many departures of women employees who refused to work with Damore should Google have sustained in order to retain him? How many lawsuits from workers who believed they were denied promotions or raises because they are women should Google have sustained? Why do conservatives only support an exception to at-will employment for an employee who expresses the view that he is biologically predisposed to do his job better than his colleagues? (Asked about the NFL protests, Treasury Secretary Steve Mnuchin offered the rather unoriginalist constitutional interpretation that that the players “have the right to have the First Amendment off the field.”)
The boundaries of free speech that elements of the conservative movement mean to set delineate a world in which the state protects the right to discriminate against religious, ethnic, sexual, and gender minorities, and those who choose to protest such treatment can be easily marginalized with public opprobrium or state violence if necessary. For much of the country, and for those who have historically been denied basic rights, it is a vision of an unfree society.