Congress to allow special restrictions on speech 'inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic'?

1. On Monday the House of Representatives passed the Consumer Review Fairness Act, which would invalidate most form contracts that limit consumer reviews of businesses. If a business purports to require consumers not to criticize the business (see the KlearGear controversy), that contract would be unenforceable, and the Federal Trade Commission and state enforcement agencies would be able to take action against such a business even if it didn't try to sue for breach of the contract. The Senate passed a similar bill last year.

There are plausible arguments both for and against the law; the law undermines the ability to agree on certain kinds of contracts, but it also provides more information (of varying quality) to consumers. I won't engage that debate here.

2. Rather, 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).

So speech on all sorts of viewpoints would be protected by the proposed law, even against private contractual restrictions. A business couldn't require users to agree to a contract that forbids critical reviews. A fur store couldn't do the same as to anti-fur reviews; a restaurant couldn't do the same to reviews that faulted it for serving foie gras. A business whose owner was pro-Donald Trump, and who was afraid that clients would learn this and would then publicly excoriate him for it, couldn't do the same as to anti-Trump reviews. But contracts barring speech that "is inappropriate" (whatever that is) "with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic" would remain perfectly legal.

That, I think, is a very bad idea, and indeed an unconstitutional idea. Should Congress be free to set up one set of contract law rules for contracts dealing with "unpatriotic speech" and another for contracts dealing with other viewpoints? A special set of contract law rules for contracts dealing with speech that "is inappropriate with respect to veteran status," differing from rules related to other speech? A special set of contract law rules for contracts dealing with speech that condemned a business's environmental practices? I don't think so—and Congress likewise shouldn't set up rules allowing special restrictions (not applicable to other speech) on "inappropriate" speech "with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic."

3. The bills (again, both the House and Senate versions) would also (subsection (b)(2)(C)) expressly preserve website operator's "right to remove or refuse to display" material that "is inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic," as well as some other material. That is doubly troubling: First, for the reason given above, but, second, because website operators already have the right to remove or refuse to display whatever material they like.

Yelp could, for instance, choose not to display critical reviews, without running afoul of existing law (though of course that would make Yelp useless for consumers). It could choose not to display material that "is inappropriate with respect to race." It could choose not to display material that is unpatriotic, anti-American, pro-abortion, anti-abortion or anything else. Is the statute suggesting, by implication, that such website operators now lack such a right to use editorial judgment, except when the material "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," "is unrelated to the goods or services offered by or available at such party's Internet website or webpage," or "is clearly false or misleading"? That would be more troubling still. Or is that whole passage about securing website operators' right to remove such identified kinds of material just entirely superfluous, because website operators already have the right to remove all such material? This provision is thus likely just to breed confusion.

But even if we dismiss subsection (b)(2)(C) as superfluous and thus lacking legal effect, subsection (b)(3) does have legal effect: It allows special restriction of "inappropriate" speech about race, gender, sexuality, ethnicity and the like, of a sort that it doesn't allow for other speech.

4. I stress again that this law involves viewpoint discrimination with regard to which speech can be restricted by private contract. It doesn't by itself forbid any such speech.

But in a legal system that is built on precedent and analogy, and deliberately changes step by step, it's easy to see where one such statutory distinction can lead. 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. (Consider, by analogy, the growth of "hostile environment harassment" law as a justification for restricting all sorts of speech. Or just think about all the arguments you've seen in which advocates of a proposed speech restriction defend it by analogy, even often a distant analogy, to other existing restrictions.)

Once "inappropriate with respect to race [etc.]" is viewed as permissible even though it's viewpoint-based, such viewpoint-based classifications will be enacted in other regulations as well. Once it's viewed as permissible despite its vagueness (what's "inappropriate"?), such vague classifications will be enacted in other regulations, too. That is a dangerous journey, one on which Congress should not embark. "It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings."