Free Speech and Legislative Bans on DEI

This question was raised by Florida in the 11th Circuit, the court observing that “there are valid concerns about how Title VII and the First Amendment could collide” and that courts should therefore “exercise special caution when applying Title VII to matters involving traditionally protected areas of free speech.” The reference to “special caution” nevertheless fails to address the fundamental question: If laws banning offensive speech are consistently struck down as a violation of the First Amendment, is Title VII not also a violation of the First Amendment in so far as it prohibits speech which creates a “hostile environment” for protected groups?

therefore, heretofore attempted to justify restricting free speech as a means of preventing “invidious discrimination.” DEI, civil rights, and the Constitution In defending the DEI ban Florida argued that the constitutionality of banning DEI is no different in principle from the constitutionality of mandating DEI - if it is a breach of the first amendment to prohibit DEI training, it would also be a breach of the first amendment to mandate DEI training under Title VII of the Civil Rights Act.

For example, in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), a case involving allegations of sexual harassment, the Supreme Court held that “A claim of “hostile environment” sexual harassment is a form of sex discrimination that is actionable under Title VII.” The question then arises: If a “hostile environment” created by sexist or racist speech can be prohibited as a breach of the Civil Rights Act, why could Florida not likewise prohibit creating a “hostile environment” through DEI training which amounts to racial harassment of white people?

In March 2024 Alabama enacted a law “to prohibit certain public entities from maintaining diversity, equity, and inclusion offices and from sponsoring diversity, equity, and inclusion programs.” The law will come into force in October 2024.

Similarly, anti-woke law in Florida provides that “subjecting individuals to specified concepts under certain circumstances constitutes discrimination based on race, color, sex, or national origin.” Many libertarians are ambivalent about such laws due to the implications for free speech.

It means that people who support diversity, equity and inclusiveness cannot gather in their offices and classrooms to plot their communist revolution.

Free speech absolutists would argue that all offensive speech is permitted, whether it offends “protected” groups or “unprotected” groups.

https://mises.org/mises-wire/free-speech-and-legislative-bans-dei