Free Speech Versus Antidiscrimination

Conflicts between free speech and antidiscrimination law make up a substantial subset of Eugene Volokh’s wide-ranging scholarship. That work includes: criticism of those courts that have interpreted expression that would otherwise be protected under the First Amendment as triggering liability for the creation of a hostile workplace environment under Title VII; views about the proper scope of constitutionally required exceptions to public accommodations laws for expressive businesses; disagreement with the common assumption that boycotts themselves, as distinct from any accompanying expression, are constitutionally protected free speech; and a bold position on recent clashes between free speech and Title VI on college and university campuses. Canvassing this portion of Volokh’s oeuvre, one sees libertarian instincts but also a genuine appreciation for competing egalitarian concerns. Even when one finds Volokh’s bottom line ultimately unpersuasive, one cannot gainsay his clarity of thought, originality, or fearlessness.