5333 private links
Did the judge really rule that racially discriminatory contracting is expression protected by the First Amendment? Can’t be, that goes against the entire body of law, and if true, would eviscerate a wide range of civil rights laws. So I awaited the written Order and decision before writing about this, surely he would correct that error when it came time for a formal ruling.
But the Order Denying Prelminary Injunction did not correct the error, it memorialized the error //
Section 1981 bans all racial discrimination in contracting—public and private, no matter which race is harmed. See 42 U.S.C. §1981. Defendants run the Fearless Strivers Grant Contest. Contests are contracts—submissions for prizes—and here Fearless admits that its contest’s rules “ARE A CONTRACT.” Yet the contest is open only to black women. Whites, Hispanics, Asians, and every other race are barred from entering. A more blatant violation of §1981 is hard to imagine. //
Fearless claims the right that those cases all deny: a right to discriminate in contracting because §1981’s mandate of race neutrality might have an incidental effect on the communicative effect of their conduct. In other words, they seek First Amendment protection for the discrimination itself. While they want to deliver their message that businesses owned by black women are important, Fearless remains free to express this message by donating money, encouraging others to support businesses owned by black women, and through mentoring and networking. But the First Amendment gives them no right to discriminate by race in contracting, even if that discrimination might deliver some message. //
That a federal court would say the Civil Rights Act of 1866 likely violates the First Amendment is alarming. And it’s indefensible given the many Supreme Court precedents saying the opposite. //
The district court said discriminatory contracting itself is protected speech. That line is one the Supreme Court has always been careful not to cross, as it would destroy the whole enterprise of antidiscrimination law.
