Congress to allow special restrictions on speech ‘inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic’?

Eugene Volokh:

. On Monday the House of Representatives passed the Consumer Review Fairness Act, which would invalidate most form contracts that limit consumer reviews of businesses. If a business purports to require consumers not to criticize the business (see the KlearGear controversy), that contract would be unenforceable, and the Federal Trade Commission and state enforcement agencies would be able to take action against such a business even if it didn’t try to sue for breach of the contract. The Senate passed a similar bill last year.

There are plausible arguments both for and against the law; the law undermines the ability to agree on certain kinds of contracts, but it also provides more information (of varying quality) to consumers. I won’t engage that debate here.

2. Rather, what struck me about the law is its exemption of certain kinds of contracts (see subsection (b)(3)): The law “shall not apply to the extent that a provision of a form contract prohibits . . . submission of,” among other things, material that “contains the personal information or likeness of another person, or is libelous, harassing, abusive, obscene, vulgar, sexually explicit, or is inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic” (emphasis added).

So speech on all sorts of viewpoints would be protected by the proposed law, even against private contractual restrictions. A business couldn’t require users to agree to a contract that forbids critical reviews. A fur store couldn’t do the same as to anti-fur reviews; a restaurant couldn’t do the same to reviews that faulted it for serving foie gras. A business whose owner was pro-Donald Trump, and who was afraid that clients would learn this and would then publicly excoriate him for it, couldn’t do the same as to anti-Trump reviews. But contracts barring speech that “is inappropriate” (whatever that is) “with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic” would remain perfectly legal.