The government has double standards about freedom of speech

The government has double standards about freedom of speech

Thanks to overbearing government, there are huge double standards when it comes to free speech. Rulings of the National Labor Relations Board force employers to tolerate racist, sexist, and obscene abuse by strikers against non-striking co-workers. By contrast, a conservative college student was recently arrested for offensive expression towards progressive students that was protected by the First Amendment. This ideological double standard is particularly glaring, because the First Amendment does not prevent private employers from regulating the speech of their employees, but it certainly does prevent the government from arresting people for their speech.

In Consolidated Communications v. NLRB (Sept. 13, 2016), Judge Nina Pillard describes some of the abuse that employers have been prevented from punishing by the NLRB, including conduct like exposing one’s private parts:

For example, in Calliope Designs, 297 NLRB 510 (1989), the Board ruled that a striker calling a non-striker a “whore” and a “prostitute,” and adding that she was “having sex with [the employer’s] president,” was not “serious misconduct” and thus was not sanctionable, id. at 521. That same striker repeatedly called a second female employee “a ‘whore’ and told [her] she could earn more money by selling her daughter, another nonstriker, at the flea market.” Id. Completely protected, the Board decision said.

Similarly, in Gloversville Embossing Corp., 297 NLRB 182 (1989), the Board’s ruling deemed it acceptable for a striker to yell at female non-strikers to come see “a real man” and then to “pull[] down his pants and expose[] himself,” id. at 193–194. And in Robbins Company, 233 NLRB 549 (1977), the Board’s order required the reinstatement of a striker who “made crude and obscene remarks and suggestions regarding sex, including an invitation to ‘make some extra money at his apartment that night’” to a female employee….

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The Board’s rulings have been equally unmoved by racially derogatory and demeaning epithets and behavior. See, e.g., Airo Die Casting, Inc., 347 NLRB 810, 811–812 (2006) (protecting a striker who raised both middle fingers and shouted “fuck you nigger” at an African-American security guard); Cooper Tire & Rubber Co. and United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union, 363 NLRB No. 194 (2016) (requiring reinstatement of picketer who called out: “Did you bring enough KFC for everybody?” and “Hey, anybody smell that? I smell fried chicken and watermelon,” in reference to African-American replacement workers).

Ironically, the federal government has pressured employers to ban far-less offensive speech outside the context of strikes, under the rubric of regulations banning racial harassment or sexual harassment. For example, the Equal Employment Opportunity Commission revived a racial harassment complaint against the Postal Service for allowing an employee to wear the completely non-racist Gadsden flag (I explained why it was wrong to do so on both statutory and constitutional grounds here, and why the EEOC’s ruling violated the First Amendment). And it revived a racial harassment claim against the Postal Service for allowing employees to wear Confederate flag T-shirts (which was overreaching, for the reasons given at this link).

Moreover, government officials just ignore the First Amendment when it gets in the way of persecuting politically-incorrect college students. For example, the Chronicle of Higher Education reports that “[a] white student at a historically black [state] university is under investigation after a Snapchat photo of her in blackface was screen-captured and shared on social media on Wednesday. The photograph shows the student wearing what appears to be a blackface mask with the caption ‘When you just tryna fit in at your hbcu.’” This student’s humor was far less offensive than the blackface, sexist “ugly woman” skit by a college fraternity that a federal appeals court ruled was protected by the First Amendment in Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir. 1993).

A student was even arrested for politically incorrect expression. As the Orlando Sentinel noted,

An East Tennessee State University student was arrested Wednesday after going to a Black Lives Matter protest on campus wearing a gorilla mask and handing out bananas. Tristan Rettke, an 18-year-old freshman, wore overalls and a gorilla mask and, holding a burlap sack with a Confederate flag and a marijuana leaf on it, offered bananas to students who were protesting, according to the ETSU police department report. He was arrested and charged with civil rights intimidation.

As Jerome Woehrle noted earlier:

[Rettke’s] offensive antics were protected by the First Amendment. While his antics were no doubt provocative, courts have ruled that the First Amendment protects racially provocative behavior, such as [the] racist, sexist “ugly woman” skit [held protected in the Iota Xi decision]. Similarly, in Terminiello v. Chicago, 337 U.S. 1 (1949), the Supreme Court overturned the conviction of a racist, anti-semitic priest, who was convicted after causing unrest by giving a speech in which he criticized various racial groups and made a number of inflammatory comments. The Supreme Court held that a “breach of the peace” ordinance ” that banned speech which “stirs the public to anger, invites dispute, brings about a condition of  unrest,  or creates a disturbance” was unconstitutional because it prohibited much protected speech….

Calling Rettke’s speech “civil rights intimidation” does not make the First Amendment issue go away. The Ninth Circuit ruled that the Fair Housing Act could not be used to punish speech by opponents of a housing project as civil-rights intimidation, even when the speech delayed the creation of housing needed by a minority group, in White v. Lee, 227 F.3d 1224, 1229 (9th Cir. 2000). It ruled that federal officials wrongly investigated their speech under a provision of the Fair Housing Act that makes it unlawful “to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of … any right granted or protected by” that Act.

As I noted:

If burning the American flag is protected symbolic expression (as the Supreme Court ruled in Texas v. Johnson (1989)), then handing out bananas to BLM activists is also.  The government can’t ban insulting speech as “civil rights intimidation.” Being offended doesn’t mean you were threatened, much less constitute a “true threat” the government can criminally prosecute.

There is no “civil rights” exception to the First Amendment.  The Supreme Court invalidated a ban on race-based fighting words in R.A.V. v. St. Paul (1992). The majority viewed it as viewpoint discriminatory, and the concurring justices voted to strike it down as overbroad. The Supreme Court also ruled that New Jersey’s Law Against Discrimination did not override the Boy Scouts’ freedom of expressive association (in Boy Scouts v. Dale (2000)), and that the Massachusetts Civil Rights Act did not override the free speech rights of the Saint Patrick’s Day Parade organizers (in Hurley v. Irish Gay Lesbian and Bisexual Group of Boston (1995)).

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at


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