Freedom of Speech and Religion

The First Amendment to the U.S. Constitution protects freedom of speech and the free exercise of religion (among other rights). In DEI litigation, First Amendment issues have so far mainly arisen in two contexts:

• An employee who opposes DEI argues that their employer violated their First Amendment rights, such as by requiring them to endorse the content of DEI training.

• An organization that supports DEI argues that it has a First Amendment right to adopt certain DEI programs.

The first category of cases only applies to employees of governmental bodies, because private entities are not bound by the First Amendment. Even governmental bodies, however, are unlikely to violate the First Amendment simply by adopting DEI programs. Many DEI programs do not implicate speech at all. And even DEI programs that involve speech, such as training initiatives, do not usually compel employees to express support for any set of beliefs or punish them for expressing their own viewpoint. 

The second category of cases occurs when organizations are defending their DEI programs against legislation or a lawsuit that is trying to restrict their First Amendment rights. 

For instance, in Honeyfund.com Inc et al v. DeSantis et al, a Florida law attempted to ban certain mandatory workplace DEI training. Courts found that this restriction was effectively an “illegal per se ban on speech the state disagrees with” and struck down the law. 

Separately, in American Alliance for Equal Rights v. Fearless Fund Management, LLC (now settled) and Brian Beneker v. CBS Studios, Inc. et al, the defendants have used a free-speech argument to defend their DEI initiatives, relying on the Supreme Court’s 2023 decision, 303 Creative LLC v. Elenis. In 303 Creative, the Supreme Court held that a Colorado anti-discrimination law could not require a website designer who opposes same-sex marriage to create wedding websites for same-sex couples. The Court reasoned that the designer’s business was “expressive,” so requiring her to make websites for same-sex couples would force her to speak messages with which she disagrees. In these newer anti-DEI lawsuits, the defendants have argued that their organizations are also engaged in “expressive” conduct and can therefore make use of the free-speech protection in 303 Creative. It is too early to draw conclusions about how 303 Creative might apply to DEI initiatives. We are watching free-speech cases closely and will report on any major developments.