One of the dirty secrets of American constitutional law is the tension between antidiscrimination laws and free expression. It blew into public view last week, when federal district judge Mark Walker struck down a Florida law dealing with hostile work environments on the grounds that it impermissibly infringed on the First Amendment. According to Judge Walker, an employer’s liberty is violated by not being able to make racially deprecatory, essentialist and stereotyping comments. The First Amendment demands a “marketplace of ideas,” he ruled in Honeyfund v. DeSantis. So employees who object when the boss peddles disparaging comments about their race should argue rather than sue.
The Florida ruling could have been a bold conceptual challenge to employment-discrimination laws, albeit one that goes against a towering edifice of Supreme Court precedent, according to which combating racism and sexism is important enough to justify some speech restrictions in workplaces. But Judge Walker’s opinion doesn’t deserve credit even for such a quixotic stand. It protects from liability only racial insults that are “widely accepted” in elite academic and corporate settings.
