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A Discriminating Exception

Summary:
Last month, I put the following on my list of potentially popular deregulations: Create an ironclad free speech limitation on discrimination law, which explicitly includes both (a) political speech, and (b) jokes.  Along the lines of, “Expression of political opinions or jokes by co-workers, managers, or owners are Constitutionally protected free speech and can never be treated as evidence of discrimination or a hostile workplace environment.” “Potentially” is of course the key word.  I’m not saying that a free speech limitation on discrimination law is currently popular.  I’m saying that actually-existing politicians could plausibly sell the idea and gain votes for their trouble.  This is not true, in contrast, for full deregulation of discrimination.  The

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Last month, I put the following on my list of potentially popular deregulations:

Create an ironclad free speech limitation on discrimination law, which explicitly includes both (a) political speech, and (b) jokes.  Along the lines of, “Expression of political opinions or jokes by co-workers, managers, or owners are Constitutionally protected free speech and can never be treated as evidence of discrimination or a hostile workplace environment.”

“Potentially” is of course the key word.  I’m not saying that a free speech limitation on discrimination law is currently popular.  I’m saying that actually-existing politicians could plausibly sell the idea and gain votes for their trouble. 

This is not true, in contrast, for full deregulation of discrimination.  The best reading of the social science is that modern discrimination law is a combination of witch-hunt and shake-down operation – as well as a thinly-veiled mandate for discrimination against whites, Asians, and males.  But speaking these truths will probably cost you votes in even the most conservative states in America.

What makes my alternative so much more palatable? 

1. It pits one sacred value against another.  Few Americans care much about workforce productivity or entrepreneurial autonomy.  So if you point out that discrimination law conflicts with either, they’ll just yawn.  Many Americans, however, care about free speech.  So if you point out that discrimination law conflicts with the Constitutionally-protected right to speak your mind, you won’t just strike a chord; you’ll strike many chords.

2. My alternative doesn’t challenge beloved existing law.  Instead, it subtly makes beloved existing law harder to enforce.

3. A free speech exception highlights the sheer pettiness of many discrimination cases.  If you can’t make your case without lamenting on-the-job jokes, you don’t have much of a case, do you?

4. Opponents of my deregulation face an awkward rhetorical quandary.  If they say, “Hardly anyone wins cases using such evidence,” you can counter, “Well, then what’s the harm?”  If they say, “We can’t win cases without such evidence,” you can counter, “Then your cases sound pretty bogus.”

5. My proposal allows for a supportive coalition of multiple somewhat disjoint groups: (a) people who care about free speech; (b) people who care about privacy (since legally nervous employers may fire you for objectionable social media activity); (c) people who think discrimination law has gone too far; and (d) the anti-woke.

Admittedly, you could admit that my deregulation is sellable, but question its merits.  What’s the point of excluding political speech and jokes as evidence in discrimination cases?

1. To be blunt, excluding such evidence reduces the probability that plaintiffs in discrimination cases will win.  In my view, no such plaintiffs should win, so this is a clear step in the right direction.

2. Excluding such evidence is especially detrimental to the most bogus cases.  If jokes are the marginal factor that puts a plaintiff over the top, he doesn’t have a leg to stand on.

3. There is very little risk of “capture” by defenders of the status quo.  A political discrimination law could easily be taken over by fanatics who think that right-wing jokes are political discrimination.  All my deregulation does is deprive plaintiffs of one important form of supporting evidence to make their cases.

4. My deregulation removes much of employers’ incentive to censor their own employees.  True, many employers censor because they’re true believers, or simply to preserve workplace harmony.  But many more are only marginally committed.  And some are intimidated dissenters.  Once the legal danger of work-related speech disappears, at least we’ll see a wide range of personnel policies, rather than the near-monoculture we now endure.

5. On reflection, current discrimination law parallels the set-up of the new Texas abortion law.  The new law notoriously evades Supreme Court rulings forbidding governments from punishing abortion.  How?  By giving private parties the right to sue medical providers for offering abortions.  Existing discrimination law, similarly, evades Supreme Court rulings forbidding governments from punishing job-related speech.  How?   By giving private parties the right to sue job providers for offering free speech.  Especially in the age of social media, this amounts to severe censorship virtually anytime you use your real name.

Not convinced?  Here’s my challenge: Name any better way to weaken discrimination law and restore free speech with a prayer of political victory.  Self-serving bias aside, I have yet to hear one.

Bryan Caplan
Bryan Caplan is Professor of Economics at George Mason University and Senior Scholar at the Mercatus Center. He has published in the New York Times, the Washington Post, the Wall Street Journal, the American Economic Review, the Economic Journal, the Journal of Law and Economics, and Intelligence, and has appeared on 20/20, FoxNews, and C-SPAN. Bryan Caplan blogs on EconLog.

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