Last week, Supreme Court Justice Samuel Alito delivered a politically-charged speech to the conservative Federalist Society. He denounced same-sex marriage, bemoaned the loss of religious freedom in America, complained that the Covid-19 pandemic gave government unprecedented control over our lives, and lashed out at experts influencing public policy. Justice Alito also reminded his sympathetic audience of the dangers to the First Amendment posed by the “growing hostility to the expression of unfashionable views” on campus or in the office. His one example: “You can’t say that marriage is the union between one man and one woman.”
In June, Alito dissented from a Court opinion upholding the rights of gay and transgender employees. In a section of his dissent headed “Freedom of Speech,” he attacked laws and regulations targeting language discrimination, citing what he considered two blatant First Amendment violations: a New York City human rights law that makes ignoring someone’s pronoun a punishable offense; and unspecified college regulations that require the use of singular they or coined gender pronouns like xe, zie, and hir. Such rules encourage the use of inclusive language, but Alito implied that he would welcome litigation asserting the First Amendment defense, “You can’t make me say your pronouns.”
These rants raise the disturbing possibility that an increasingly conservative Supreme Court could find that attempts to discourage or penalize language discrimination violate the First Amendment’s free-speech guarantee.
Let’s start with Alito’s attack on New York City’s “pronoun” law as a potential First Amendment breach. In fact the city’s human rights law does not mention pronouns. It doesn’t say anything about language at all. Rather, the Human Rights Code bans discrimination in housing, employment, or other activities covered by the statute, “against any person because of such person's actual or perceived race, creed, color, national origin, gender, age, disability, sexual orientation, marital status, partnership status, or alienage or citizenship status.” The offense, according to the law, is gender discrimination.
New York’s guide to interpreting its human rights law does address gender pronouns, advising that repeated and intentional failure “to use the name or pronouns with which a person self-identifies” may constitute evidence of gender discrimination. Accidental or occasional misgendering does not constitute an offense, but Alito implies that he would bar any linguistic evidence on First Amendment grounds.
A defendant could claim that their intentional misgendering was simply hate speech, which is protected by the First Amendment. But that would constitute an admission of underlying discrimination. Then there's the compelled-speech defense. With a few exceptions, the First Amendment protects a speaker from being forced to say something that violates their deeply held beliefs. A defendant who has a religious conviction that there are only two genders, or that homosexuality is wrong, could insist that forcing them to use a particular pronoun violates that belief.
Perhaps Justice Alito thinks that’s the way to go, but in effect the compelled-speech defense says, “my religious or philosophical beliefs, which are also protected by the First Amendment, permit gender discrimination,” which is at best not a good look. Besides, there’s a strong argument to be made for the constitutionality of laws barring language discrimination under the Fourteenth Amendment's guarantee of "the equal protection of the laws."
In addition, one effect of quashing language discrimination statutes, both those dealing with gender and those addressing national origin discrimination, would turn the First Amendment against itself, privileging the voices of powerful speakers while suppressing minority voices that have been silenced or ignored in the past. And that would upend the view that constitutional protections defend vulnerable minorities from the tyranny of the majority.
What about Justice Alito’s claim that “You can’t say that marriage is the union between one man and one woman” at work or in school? Citing George Carlin’s comic routine, “Seven Dirty Words You Can’t Say on TV,” Alito insisted that today there would be some 70 times seven words “you can’t say if you’re a student or professor . . . or an employee of many big corporations.” That’s 490 words not safe for work.
In 1978, the Supreme Court upheld the ban on Carlin’s dirty words in over-the-air broadcasts, essentially saying that in certain contexts, indecent words and expressions may be banned without violating the First Amendment. But you can certainly say that marriage is heterosexual all you like, or any of the 489 other supposedly banned expressions, even in the office, which is not usually covered by the First Amendment, or on campus, where in most cases, the First Amendment does apply, and where most speech is also tacitly protected by the concept of academic freedom. It’s just that other people, and the law, don’t have to agree with you, and they’re allowed to push back.
The First Amendment does protect your speech from government interference. But it doesn’t protect you from the consequences of your speech, not just in the public square but also in corporate settings and outside of work or school. Employers restrict speech all the time, and in most instances it’s perfectly legal. Teachers do so too, telling students what to write, how to write it, and how to correct it. That’s part of the job description. Plus we constrain and adjust our words all the time to meet the demands of social situations unless we just don’t care what other people think. But we can’t stop them from disagreeing, or from voicing their own opinions.
That’s why it’s bizarre when conservative speakers with large social media platforms and robust press coverage invoke the First Amendment in order to silence their critics, who tend to be less powerful and who certainly have fewer followers, though these critics also have a right to speak.
And to the consternation of some speakers, the First Amendment does not guarantee them a platform on private services like Facebook, Twitter, or even Parler. Parler is the start-up that conservatives are flocking to because it promises free speech, though it’s already got a reputation for banning liberal speakers. And regardless of what Justice Alito thinks, all online free-speech guarantees are riddled with exceptions. For example, Parler’s terms of service warn, “Parler may remove any content and terminate your access to the Services at any time and for any reason.” That’s a long way from the promised libertarian utopia.
Justice Alito is afraid that if you say marriage can only be heterosexual, you’ll be called a bigot. But there’s no First Amendment protection from being called a bigot, though trying to stop someone from calling you a bigot might be unconstitutional.
And anyway, if you firmly believe that marriage must be heterosexual, then, as a number of people have tweeted, if someone of the same sex asks you to marry them, just say, “No.”
