Do Laws Against Workplace Harassment Violate Free Speech?

One of the dirty secrets of American constitutional law is the tension between antidiscrimination laws and free speech. It went public last week at the federal district judge Markus Walker struck down a Florida law dealing with hostile work environments on the grounds that it illegally violated the First Amendment. According to Judge Walker, an employer’s liberty is violated by his inability to make racially derogatory, essentialist and stereotypical comments. The First Amendment calls for a “marketplace of ideas,” he said Honeyfund vs. DeSantis. So employees who object when the boss makes derogatory comments about their race should argue rather than complain.

The Florida ruling could have been a bold conceptual challenge to workplace discrimination laws, albeit against a towering edifice of Supreme Court precedent that tackling racism and sexism is important enough to justify some speech restrictions in the workplace. But Judge Walker’s opinion doesn’t even deserve credit for such an unworldly attitude. It only shields from liability racial slurs that are “widely accepted” in elite academic and corporate environments. Do Laws Against Workplace Harassment Violate Free Speech?

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