Freedom of speech and of expressive association (religious or otherwise)...

[Volokh, Eugene]

        I strongly doubt that courts may sensibly distinguish situations
where the speaker's identity "affect[s] the organization's message (or at
least how that message is received by the audience)," and where the
discrimination is thus constitutionally protected, from situations where the
speaker's identity doesn't really affect the message.  Can a court really
reliably determine whether, say, the Sierra Club's message about
environmentalism is really affected by the race of the speaker?  Or whether
a group's message about child care is really affected by the speaker's
gender?  Or whether a group's message about moral straightness is really
affected by the speaker's sexual orientation?  No more, I think, than courts
can reliably determine the same with regard to clergy.

        This problem is manifested even in Marty's own argument.  Marty
would distinguish, among other things, situations where where the speaker's
identity "affect[s] the organization's message (or at least how that message
is received by the audience)" from situations where "the [organization]
thinks the public will ignore the speech [if the speaker has a particular
identity]."  I'm not sure I see the distinction here at all, but if there is
one, it seems to me far too gossamer to be administered by courts.

        The same matter arises in the different but related context of movie
or theater directors choosing actors based on their races:  Some concede
that directors must be able to consider race where it's "really relevant"
(e.g., if the director wants to cast a black as Othello and a white as
Desdemona; I realize that some directors intentionally engage in race-blind
casting, but certainly many prefer to cast traditionally) but not where it's
"not really relevant" (e.g., for casting supporting roles for which race is
supposedly unimportant).  I think that courts can't second-guess the
director's judgment about where race is relevant and where it isn't --
directors must have the constitutional right to cast based on whatever
criteria they like.  And likewise, of course, for churches choosing clergy.

        I would not limit this to nonprofits; as the movie director example
shows, for-profits should also be entitled to do the same.  Certainly if
Philip Morris wants to communicate a "noncommercial speech" message, they
should likewise be able to choose whatever spokesperson they want to
communicate it, based on whatever criteria they choose (though of course
certain choices might in practice be foreclosed by the risk of bad
publicity).  One might argue that the rule should be different for
commercial speech, simply because such speech is generally less protected;
I'm not sure that this should be so, but at least the commercial speech /
noncommercial speech line, for all its flaws, is more administrable than a
"really relevant to the speaker's message" / "not really relevant to the
speaker's message" line.

Marty Lederman writes:

> Eugene uses an example of race discrimination where the race of the
> spokesperson might truly (or at least arguably) be thought to affect the
> organization's message (or at least how that message is received by the
> audience).  Under the Roberts doctrine (or under a statutory BFOQ that
> (unlike title VII) applied to race discrimination), that effect would be
> weighed in the balance.  But the bright-line rule that the Scouts are
> seeking
> would prevent courts even from inquiring as to that effect, or the harm to
> the state interest:  That bright-line rule, in other words, would protect
> the
> Sierra Club even if it discriminated against Hispanic spokespersons
> because
> of sheer animus, or because the person doing the hiring has a stereotype
> of
> Hispanics as inarticulate, or because the Sierra Club thinks that the
> public
> will ignore the speech of Hispanics.  Can this be right?  And won't it
> permit
> exemptions to antidiscrimination laws for the vast numbers of
> employees/members who are engaged in expression at one time or another on
> behalf of an organization?
>
> Moreover, why limit the exemption to the Sierra Club?  In Eugene's view,
> why
> can't Philip Morris discriminate -- without any need for justification --
> in
> hiring persons to speak about immigration/smokers' rights/NAFTA/tobacco
> legislation/etc.?
>
> Marty (in my private capacity)
>
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