Published: Oct. 2, 2019

Helen Norton, professor and Ira C. Rothgerber, Jr. Chair in Constitutional Law, will present her paper, "Discrimination and the Speech That Enables It," at an Oct. 25 symposium at the University of Chicago titled "What’s the Harm? The Future of the First Amendment."

An abstract of the paper is as follows:

"Speech sometimes enables illegal discrimination. Think, for example, of an employer’s or landlord’s statement that 'Whites Only Need Apply.' Or an employer’s harassing speech that creates a hostile workplace environment, thus changing the terms and conditions of employment in discriminatory ways. Or employers who ask about candidates’ pregnancy, religion, or disability; landlords who ask about prospective tenants’ sexual orientation or marital status; and health insurers who ask about applicants’ genetic history.

This paper examines how the antiregulatory turn in the Court’s contemporary free speech doctrine threatens legislatures’ constitutional power to address stubborn equality problems. Consider, more specifically, the many federal, state, and local antidiscrimination laws that not only prohibit employers, insurers, lenders, and other decisionmakers from considering certain characteristics when making decisions about important life opportunities but also go on to regulate those decisionmakers’ speech by prohibiting them from inquiring about applicants’ protected class status. These provisions aim to discourage illegal discrimination on the front end by preventing decisionmakers from asking questions eliciting information that would enable them to discriminate. Although the First Amendment implications of these provisions have received little attention to date, these laws are now increasingly under constitutional attack from corporate and other commercial entities that seek -- with growing success -- to insulate their speech from regulation.

This paper explains how the government’s regulation of speech that informs or otherwise facilitates the speaker’s discriminatory conduct can further both equality and free speech values. It identifies the relationship between an antisubordination understanding of certain equality law questions and a listener-centered approach to certain First Amendment questions: both attend to asymmetries of information and power in justifying legislatures’ efforts, both longstanding and new, to address important problems of inequality. It thus offers theoretical and doctrinal explanations for how and why the First Amendment sometimes permits the government to regulate decisionmakers’ speech that enables illegal discrimination."