Thanks to overbearing government, there are huge double standards when it comes to free speech. Rulings of the National Labor Relations Board (NLRB) force employers to tolerate racist, sexist, and obscene abuse by strikers against non-striking co-workers. By contrast, a college student was recently arrested for offensive expression that was nevertheless protected by the First Amendment. This ideological double standard is particularly glaring, because the First Amendment does not prevent private employers from regulating the speech of their employees, but it certainly does prevent the government from arresting people for their speech.
In Consolidated Communications v. NLRB (September 13, 2016), Judge Nina Pillard describes some of the abuse that employers have been prevented from banning under the National Labor Relations Act, including conduct like exposing one’s private parts:
For example, in Calliope Designs, 297 NLRB 510 (1989), the Board ruled that a striker calling a non-striker a “whore” and a “prostitute” and saying she was “having sex with [the employer’s] president,” was not “serious misconduct” and thus was not sanctionable, id. at 521. That same striker repeatedly called a second female employee “a ‘whore’ and told [her] she could earn more money by selling her daughter, another nonstriker, at the flea market.” Id. Completely protected, the Board decision said.
Similarly, in Gloversville Embossing Corp., 297 NLRB 182 (1989), the Board’s ruling deemed it acceptable for a striker to yell at female non-strikers to come see “a real man” and then to “pull down his pants and expose himself,” id. at 193–194. And in Robbins Company, 233 NLRB 549 (1977), the Board’s order required the reinstatement of a striker who “made crude and obscene remarks and suggestions regarding sex, including an invitation to ‘make some extra money at his apartment that night’” to a female employee.
The Board’s rulings have been equally unmoved by racially derogatory and demeaning epithets and behavior. See, e.g., Airo Die Casting, Inc., 347 NLRB 810, 811–812 (2006) (protecting a striker who raised both middle fingers and shouted “f*ck you n—” at an African-American security guard); Cooper Tire & Rubber Co. and United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union, 363 NLRB No. 194 (2016) (requiring reinstatement of picketer who called out: “Did you bring enough KFC for everybody?” and “Hey, anybody smell that? I smell fried chicken and watermelon,” in reference to African-American replacement workers).
Ironically, the federal government has pressured employers to ban far less offensive speech outside the context of strikes, under the rubric of regulations banning racial harassment or sexual harassment. For example, the Equal Employment Opportunity Commission (EEOC) revived a racial harassment complaint against the U.S. Postal Service for allowing an employee to wear the Gadsden flag (I explained why it was wrong to do so on both statutory and constitutional grounds here, and why the EEOC’s ruling violated the First Amendment). And it revived a racial harassment claim against the Postal Service for allowing employees to wear Confederate flag T-shirts (which was overreaching, for the reasons given at this link).
Moreover, government officials just ignore the First Amendment when it gets in the way of persecuting politically incorrect college students. For example, The Chronicle of Higher Education reports: “A white student at a historically black [state] university is under investigation after a Snapchat photo of her in blackface was screen-captured and shared on social media on Wednesday. The photograph shows the student wearing what appears to be a blackface mask with the caption “When you just tryna fit in at your hbcu.”
Meanwhile, as The Orlando Sentinel reported, Tristan Rettke, a student at East Tennessee State University, “was arrested Wednesday after going to a Black Lives Matter protest on campus wearing a gorilla mask and handing out bananas.” Compare both these cases to the behavior of a college fraternity that donned blackface to perform a sexist “ugly woman” skit that a federal appeals court ruled was protected by the First Amendment in Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir. 1993). I noted to Liberty Unyielding,
The government can’t ban insulting speech as “civil rights intimidation.” Being offended doesn’t mean you were threatened, much less constitute a “true threat” the government can criminally prosecute.
As offensive as this kind of behavior is, government cannot punish people merely for being offensive. There is no “civil rights” exception to the First Amendment.
[This post was updated from an earlier version.]