Free Speech versus Compelled Praise for Diversity

Can the government force those it licenses to parrot its praise for “diversity”? The Colorado Department of Human Services Child Care Division thinks so, issuing proposed rules requiring day care centers — including those for infants and toddlers — to feature displays promoting diversity, and to provide dolls representing at least three different races.

As I noted in today’s Washington Times, this diversity-display requirement runs afoul of the First Amendment:

It is ridiculous that a bossy Colorado state agency proposed forcing day care centers to post two or more visual displays “presenting diversity in a positive way” and to provide dolls from three different races (“Colo. proposal would impose parameters on day care centers,” Web, Wednesday).

The diversity display requirement is a flagrant violation of the First Amendment. The Supreme Court’s 1995 decision in the Hurley case ruled out forcing people to celebrate diversity. It ruled that a parade could not be ordered to include a homosexual-pride contingent, since compelled speech violates free speech.

Governments cannot condition licenses for day-care centers or other businesses on their giving up their free speech rights. That is forbidden by federal court rulings such as Carepartners LLP v. Lashway (2008). People cannot be punished even for criticizing “diversity.” Even heated criticism of affirmative action is protected by court rulings such as Department of Corrections v. State Personnel Board (1997).


Senior attorney

Competitive Enterprise Institute

Curiously, although the Washington Times was kind enough to publish my letter, it made one peculiar change in my letter, a change that puzzles me:  it changed the word “gay-pride” in my letter to “homosexual-pride” (I was not aware of this until after publication).

In letters to the editor, I much prefer using the word “gay” to “homosexual” because gay takes up only 3 letters rather than 10 (letters usually need to be short to be published), and “gay” only takes up 1 syllable versus 5 for “homosexual.”  Moreover, the term “gay-pride” is infinitely more common than “homosexual-pride,” and the word “gay” was used in the very Supreme Court case I cited  (“homosexual-pride” is an awkwardly-long phrase used mostly in commentaries by people decrying the very existence of gay pride, which was not the purpose of my letter; indeed, I have previously raised First Amendment objections to attempts to censor gay-pride messages on things like license plates, and have criticized the prejudicial use of gay people’s sexual orientation in lawsuits against them and their employer).

The Times historically employed some rather outmoded style conventions in the recent past, like referring to unmarried women as “Miss,” even in news stories where their marital status was irrelevant. It seems to have dropped that convention. The replacement of “gay” with “homosexual” is another convention that it would be better off dropping. Doing so would probably help it appeal to a younger demographic.