The Gradual Imposition of Free Speech Restrictions

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Via Instapundit, I see that Eugene Volokh has noticed a peculiar exception in a law that the U.S. Congress is considering.  The law would forbid companies from putting provisions in form contracts (i.e., those that are standardized for broad groups, mainly consumers) that restrict their speech.  The targets, apparently, are provisions that seek to forbid consumers from writing bad reviews of products and services.  Here’s the peculiarity (emphasis added by Volokh):

… what struck me about the law is its exemption of certain kinds of contracts (see subsection (b)(3)): The law “shall not apply to the extent that a provision of a form contract prohibits . . . submission of,” among other things, material that “contains the personal information or likeness of another person, or is libelous, harassing, abusive, obscene, vulgar, sexually explicit, or is inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic” (emphasis added).

Volokh emphasizes that this is not a prohibition on speech proposed by the government, but rather a requirement that private entities must treat certain language as protected for their own purposes, too.  Moreover, Volokh and I would agree that private people and organizations should have the right to enter into contracts and, moreover, restrict speech for their own purposes.  In that regard, Volokh’s basic concern is that inserting such language into a law tends to have the property of seeds in well-fertilized soil:

Once “speech inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic” becomes a congressionally approved distinction — one that can have legal force — other laws, including outright prohibitions on speech, will be justified by analogy to this distinction.

Once we accept the principle that the government can treat certain speech differently when it comes to contracts between private parties, it’s a short step to reason that the government should be able to treat that speech differently for government’s purposes — the people’s communal contract with each other, if you will.

My own read of the legislation is that Volokh is too sanguine.  Notably, he suggests that it’s simply confusing for the law to expressly allow organizations to forbid or remove the offending content above — confusing because private individuals and organizations already have the right to forbid or remove any content at all that they choose.  I think Volokh should have considered that seemingly superfluous language as more than a mere flourish.

The primary concern of the legislation would be contract provisions that forbid customers (or others who agree to the contract) from publishing a “review, performance assessment of, or other similar analysis of” another’s “goods, services, or conduct” anywhere.  The language about forbidding or removing content on one’s own Web site seems very likely to have the effect of creating a special class, such that a company that allows any reviews of a certain sort would have to accept all of them, except those that fit the special classes. Contract provisions that “reserve the right” to delete any content for any reason would come under scrutiny, limited only to the content fits exceptions.

Now note something that’s missing in those exceptions.  For contrast, here’s a similar list from the federal Civil Rights Act of 1964, forbidding employment discrimination on the basis of: “race, color, religion, sex, or national origin.”  Only one of those five items is not clearly an “intrinsic characteristic,” as the proposed consumer law puts it: religion.

In the very narrow scope of this “consumer review” legislation, a person could insist on form contracts that forbid others from commenting on their race, gender, sexuality, and so on, but not on their religious or cultural qualities.  (Of course, we should expect that cultural qualities that the Left prefers would be deemed “intrinsic,” while markers of traditional Western culture would not.)  Male consumers could be prevented from expressing discomfort that there are only female doctors at a particular practice.  Culturally conservative customers could be blocked from suggesting that a uniformly flamboyantly gay staff affected their enjoyment of a particular service.  But there could be no prohibition against liberal complaints, for example, that everybody at a particular organization appears to be a traditionalist Christian.

A major online retailer like Amazon could block critical reviews of books that address the race, sex, or sexuality of the author, even if that’s central to the books content, but could not block critical reviews of books that address religion or traditional values.

Note that I’m not saying that people shouldn’t be able to criticize other people and organizations on any basis whatsoever; the ideal strategy is to stop using government to infringe on people’s right to interact as we see fit.  But this particular law is a clear indicator of the ongoing strategy to force one side of the culture war (or, more mildly, one set of perspectives in the social discourse) into the untenable position of technically having equal rights of speech and association, but with a severely restricted ability to use them.

In the most benign interpretation, the law will act as another a culture-war ratchet.  Organizations are not forced to act as censors (yet), but those that are inclined to forbid speech the government dislikes would be able to do so, while those inclined in another direction would not. Those of us who’ve argued against the creation of special classes of people or of speech have been accused of merely attempting to cover an assumed racism (and other -isms of The Deplorables), but it’s been clear all along that this is where these seemingly innocuous laws are going.



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