Consumer Protection

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What's the Harm? The Future of the First Amendment

Free Speech and the "Unique Evils" of Public Accommodations Discrimination

Elizabeth Sepper

Professor of Law, University of Texas at Austin School of Law.

I’m grateful to Kathryn Garza for excellent research assistance and to the participants in the University of Chicago Law School’s Legal Forum Symposium, What’s the Harm? The Future of the First Amendment, for their comments and suggestions. I thank Nika Arzoumanian, Rebecca Boorstein, Austin Kissinger, Daniel Simon, Anna Porter, James Gao, Rebecca Roman, Claire Lee, Qi Xie, and the rest of the journal staff for their superb organizing and editorial assistance.

For over a hundred years, the U.S. Supreme Court—and an array of state supreme courts—consistently rejected arguments that businesses open to the public have a constitutional right to provide less than the full and equal services required by antidiscrimination laws. The Supreme Court made clear that public accommodations law “does not, on its face, target speech or discriminate on the basis of its content.”

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