Laws enacted to protect individuals from discrimination based on race, sex, ethnicity, age, religion, or sexual orientation often have First Amendment free expression implications.

Anti-discrimination laws present balancing issues

For example, individuals or policies that enforce distinct roles for men and women, condemn homosexuality, or exercise racial segregation may run afoul of anti-discrimination laws. States and institutions then face the difficult problem of balancing competing rights — how to protect rights to free speech and expression while also protecting the right of certain groups to live and work in an environment free from discrimination.

Distinct sets of rules apply depending upon whether the regulatory body is public or private, the context in which the speech or expression occurs, and whether the speech is subject to First Amendment protection.

Some hate speech lacks First Amendment protection

Thus, some forms of “hate speech” may be exempt from First Amendment protection under the exceptions carved out for “fighting words,” which prohibits First Amendment protection of speech directed at a particular individual that may incite an immediate and hostile reaction. Personal abuse in the form of racist or sexist epithets, for example, would likely fall under this exception.

Policies that seek to restrict speech based on content, rather than the context in which the speech occurs, generally do not pass constitutional muster. Lower courts have struck down university regulations deemed overbroad in their attempts to minimize offensive speech on campus or that prohibited “offensive” speech in such a way that limited the ability of students or faculty to discuss the effects of biological sex differences or competing views on whether homosexuality could be “cured” through psychological counseling.

Workplace harassment policies have come under scrutiny

Workplace harassment policies have also come under scrutiny by legal scholars, particularly in the aftermath of cases that hold employers to a strict liability standard for “hostile and intimidating environment” sexual harassment.

Employers have extensive rights to regulate the speech, conduct, attire, and hours of employees as conditions of employment. In addition, workplace regulations exist to protect employees from liability for the discriminatory speech of other employees. Under strict liability, an employer may be held responsible for harassment perpetuated by one employee against another, even if there is no evidence that the employer had direct knowledge of the harassment.

Cases such as Burlington Industries v. Ellerth (1998), in which an employee claimed sexual harassment caused her to leave her job, impose an obligation on employers to create rigorous anti-harassment policies and to take preventative measures against harassment.

Anti-discrimination face freedom of association challenges

In other instances, anti-discrimination laws are challenged by groups that believe that the provisions of those laws infringe upon speech or associational rights.

For example, the United States Jaycees’ policy of excluding women from membership was challenged in Roberts v. United States Jaycees (1984) under the Minnesota Human Rights Act as a violation of state anti-discrimination law. The Jaycees argued that enforcement of the act unconstitutionally limited their associational rights under the First Amendment, as it forced them to “associate” involuntarily with women.

Right to associate is not absolute

The Supreme Court acknowledged that the right to associate necessarily implied a right not to associate. But it also held that the right was not absolute and that a compelling state interest might justify a policy narrowly tailored to serve that interest. The elimination of certain forms of invidious discrimination, including sex discrimination, was sufficiently compelling to meet the standard.

The Court also concluded that compliance with the state law neither altered the group’s message nor impaired its ability to express its views.

In Hishon v. King & Spalding, 467 U.S. 69 (1984), the Court further refused to allow a law firm’s associational rights to exempt its decisions as to whether to promote lawyers from associate to partner status from provisions of Title VII of the Civil Right Act of 1964 prohibiting discrimination on the basis of sex.

Court said Boy Scouts could revoke membership of homosexuals

At least initially, the Court adopted a very different stance with regard to the conflict between anti-discrimination laws protecting homosexuals and the policies of the Boy Scouts of America.

The Boy Scouts revoked the adult membership of James Dale upon learning of his open homosexuality. Dale filed suit under the New Jersey public accommodations law, which prohibits discrimination on the basis of sexual orientation in places of public accommodation. In Boy Scouts of America v. Dale (2000), the Supreme Court distinguished the case from Roberts, noting that the Boy Scouts promulgated a specific moral message that it asserted was inconsistent with homosexual conduct.

Were the Boy Scouts to be required to accept Dale as a member, they would be compelled to support a moral position inconsistent with the message, values, and goals of the organization. While a group may be compelled to extend the benefits of membership to an undesired group, it may not be compelled to deliver a message contrary to its actual views. Thus, the New Jersey law infringed on the Boy Scouts’ expressive associational rights in violation of the First Amendment.

Court has considered other homosexual discrimination cases

After the U.S. Supreme Court struck down state laws prohibiting gay marriage in Obergefell v. Hodges, 576 U.S. ____ (2015), a number of businesses have sought to deny services to couples planning such wedding ceremonies.

In Elane Photography v. Willock, 309 P.3d 53 (2013), the Supreme Court of New Mexico rejected arguments based on the free exercise clause or the idea that the state was “compelling” speech when it ruled that a photography studio violated the state’s Human Rights Act when it sought to withhold such services.

A Kentucky Court jailed Kim Davis, a Rowan County clerk who refused on religious grounds to issue licenses to gay couples, for contempt, but the state subsequently adopted a law that no longer required clerks to put their names on such licenses.

This article first published in 2009 and has been updated. The primary contributor, Sara L. Zeigler, is the Dean of the College of Letters, Arts, and Social Sciences at Eastern Kentucky University. It has been updated by the First Amendment Encyclopedia.

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