If I had to select the two harms to which we, as a society, are currently most attuned, I would choose the serious harms caused by sexual violence and discrimination. Perhaps unsurprisingly, these are also the two areas where individuals are least concerned about direct infringements and chilling effects on free speech. I want to highlight some of the less-discussed ways in which our zeal to prevent sex crimes and bigotry has dramatic free speech consequences. I also want to begin to make the case for why we should care about these consequences, despite the magnitude of these harms.
Without very much outrage – even from those with generally liberal views on crime – people convicted of sex crimes, who have served their time in prison, have been stripped of some of the most basic liberties. In addition to being subject to stigmatizing, burdensome sex offender registries, those convicted of sex crimes have been denied many fundamental First Amendment rights. As an example, the Supreme Court recently heard oral argument in a case involving North Carolina’s law banning those convicted of sex offenses from accessing most social media sites. Packingham, the petitioner in that case, was convicted of discussing his traffic ticket on Facebook.
The Supreme Court is also considering a petition for certiorari, in Minnis v. Illinois, where a defendant, previously convicted of having sex with a girl two years younger than he was, violated Illinois’s rules requiring registered sex offenders to report all of their Internet identities and URLS used. Part of the purpose of the Illinois statute, according to The Cato Institute’s amicus brief, is to enable the public to avoid conversations with post-release sex offenders. Defendant Minnis was convicted after neglecting to mention his Facebook use during a registration. The Supreme Court has requested that Illinois file a response in opposition to Minnis’s cert petition.
The Supreme Court appears likely to overturn North Carolina’s statute banning sex offenders from using most social media platforms, and may even grant certiorari in Minnis. Without the Court’s intervention, however, the citizens of North Carolina and Illinois were happy to sacrifice critical First Amendment protections for communicating on social media and engaging in anonymous speech at the altar of their moral panic. If a nation should be judged on how it treats its lowest citizens, we are willing to deprive sex offenders of free speech opportunities in ways that go far beyond the benefits of crime prevention. We do not value even the most obvious First Amendment rights for classes of people we have deemed unacceptable or odious.
To advance anti-discrimination causes, we are also more willing to directly infringe free speech rights in educational and professional contexts. The tension between liberty and equality has been hotly debated for decades. The Supreme Court is now discussing whether to confront the clash between Colorado’s anti-discrimination laws and the desires of a Christian baker, who refuses to make custom-made, artistic cakes for same-sex couples. These direct conflicts between civil rights and civil liberties pit smart, thoughtful academics and politicians against each other. But what we don’t often discuss in this area is the indirect, chilling effects that anti-discrimination laws have on free speech.
As an example, Eugene Volokh has written about how employers, afraid of being sued, generally go far beyond what is required to comply with Title VII’s ban on sexual harassment. Workplace sexual harassment, to be legally actionable, must be severe and pervasive, but employers wish to curb even single instances of protected speech in order to prevent conditions that may become pervasive. Universities, in enacting what many call “speech codes” engage in the same type of overreach.
A personal example illustrates the collateral consequences of anti-discrimination laws on the free speech value of information exchange. While looking for apartments last weekend, I asked several rental agents what types of people live in the building. I wondered whether the building was composed of mainly families, students, or young professionals. Many rental agents refused to give me this information, for fear of being sued under the Fair Housing Act. This federal statute does not directly mention sharing information about a protected classification – including familial status. However, the statute has an indirect chilling effect on speech because apartment managers do not want to be perceived as attending to these types of questions.
Hard questions involve what we should hold the government accountable for (in terms of state action) when state and federal laws have obvious indirect chilling effects on speech. And, of course, discrimination in housing (let alone in other areas such as policing) is a significant social ill that the free market has not completely solved. Indeed, the Uber driver[i] shuttling me to one particular apartment informed me sua spote, without my asking anything about the demographics of an apartment complex, that many individuals of a particular national origin lived in that complex. “Not that it’s a problem,” he continued.
But we must also ask ourselves how far we are willing to go to advance social progress in areas that stir the most outrage. The First Amendment, our greatest bulwark against tyranny, preserves our ability to make private choices, and have private thoughts, that any given majority might find illegitimate. On a day when many marched in support of science, including to support the free collection and dissemination of information, I was surprised at how few facts I could learn about something as private as my personal residence. Science, like the “marketplace of ideas” and its attitude towards truth, is in large part an objective methodological process that should be assessed separately from ideology. Yet, to serve social progress, the law has made it illegitimate for us to have access to information to make informed, private, autonomous choices about where we live. Anyone who believes in a private sphere of action or conscience, separate from governmental control or public interest concerns, or even in the public/private distinction generally should care about this.
Our views about what is good policy change over time. Views on how severely we should punish sex offenders, how to even define a sex crime, and how serious the problem actually is will change as we collect new data and as culture develops. Analogous questions abound in considering equality measures and anti-discrimination laws. The constant we have, as law evolves, is the protection of free speech. Free speech allows us not only to debate these issues, but gives us room to privately exercise our own consciences, in limited ways. Just as we cannot sacrifice all of our Fourth Amendment liberties to prevent terrorism, we must be vigilant so that we allow even the social pariahs – the sex offenders and the bigots – to have a voice. Plus, it’s not always apparent who has been falsely convicted of a sex crime, or when anti-discrimination laws stifle speech and information for all of us.
[i] Uber, a company I support in its endeavors to increase mobility for those without cars and employ those who need extra income in a smart and efficient way, has drivers who are exceptionally wonderful and pleasant, and some who have said quite objectionable things. One driver, from Brazil, once actually made the argument to me that we Americans don’t understand how bad the Jews were in Germany. Such is the price of free speech, a price I am happy to pay.