I've written a bit about First Amendment Lochnerism -- the use of the First Amendment to strike down a bevy of (generally progressive) government regulations as violations on "free speech". Because an expansive view of "speech" can encompass all manner of activities hitherto thought of as unremarkable subjects of public regulation (consider laws which force drug manufacturers to disclose potential side effects -- compelled speech!), a hyperactive First Amendment jurisprudence can threaten huge swaths of the modern regulatory state. And indeed, it seems as if the First Amendment has been the conservative judiciary's weapon of choice against disagreeable liberal policy victories -- from campaign finance reform to public sector unions.
Anti-discrimination law, in particular, is vulnerable to this trend because it is very easy to view an anti-discrimination rule as a form of compelled association (why should I have to engage in a business transaction with a group I don't want to associate with), and because most discrimination has a self-consciously expressive character (I'm not doing business with this group as a means of expressing my disdain for them).
A few days ago, the Ninth Circuit encountered another probe in this direction when Charter Communications, the third-largest cable distributor in America, defended itself against a § 1981 charge of racial discrimination by claiming its application would violate its First Amendment rights. Charter was accused of refusing to distribute the channels of a Black-owned cable company due to racial animus. It denies the claim, of course, but it also argued that even if it had been engaging in racial discrimination, such a choice would represent an exercise of Charter's "editorial discretion" and thus was immune from governmental oversight under the First Amendment. To the extent § 1981 -- one of the oldest civil rights laws in America, forbidding race-based interference in the creation of a contract -- is applied to such "editorial" choices, it is unconstitutional.
The Ninth Circuit rejected this defense and allowed the suit to proceed. But we're still seeing more and more data points suggesting that the First Amendment is viewed as a promising avenue for derailing discrimination claims, and I think there are ample grounds for civil rights activists to be very anxious about the trend.