William and Mary Bill of Rights Journal
Helen Norton, You Can't Ask (or Say) That: The First Amendment and Civil Rights Restrictions on Decisionmaker Speech, 11 Wm. & Mary Bill Rts. J. 727 (2003), available at https://scholar.law.colorado.edu/articles/532.
Federal, state, and local civil rights laws regulate private decisionmaking about whom an employer may hire or fire, to whom a landlord may rent an apartment, or to whom a creditor may extend credit. In prohibiting discriminatory conduct, however, these laws also limit the speech of those making these decisions. In this Article, Professor Norton explores how we might think about these civil rights laws in the context of the First Amendment, and their place within the Supreme Court's commercial speech jurisprudence. She concludes that the speech restricted by these laws may be characterized as falling outside the protection of the First Amendment, and that such laws, when crafted properly, may accommodate both free speech and antidiscrimination values.
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