Professor Patrick Lawrence argues legislation on the agenda for a House committee meeting Wednesday, March 19, 2025, violate First Amendment free speech rights. (Stock photo by Getty Images)
Hypocrites are like Bradford pear trees. These days, it seems like you see them everywhere you look, and they stink.
Let me back up. The South Carolina Legislature is currently considering a bill that would outlaw diversity statements, along with a host of other things.
Now, diversity statements have been unpopular for a while. They can feel like a minefield for applicants, and they produce a lot of cringe-worthy submissions that don’t necessarily help hiring committees evaluate candidates.
But H.3927 isn’t concerned with diversity statements because they’re ineffective or insincere. The bill outlaws diversity statements because, according to some right-leaning organizations, they’re a form of compelled speech. That is, they force people to say something they may not agree with, and that’s an infringement of a person’s First Amendment rights.
The Legislature is tackling this constitutional question by prohibiting government agencies and those who contract with them from “compelling, requiring, inducing, or soliciting any person to provide a diversity, equity, and inclusion statement or give preferential consideration to any person based on the provision of a diversity, equity, and inclusion statement.”
Unraveling this issue from a free-speech perspective is complicated, though.
On one hand, hearing from diverse voices breaks down the intellectual stagnation that occurs when we only hear from the same people we’ve always heard from. And DEI (diversity, equity and inclusion) programs help people speak up who’ve been silenced in the past.
In these ways, DEI supports everything free speech rights are supposed to protect. At the same time, there’s a plausible (though not airtight) case that a diversity statement violates a person’s rights if it compels them to make a statement against their beliefs or if it rewards those who share the views of the government while penalizing those who don’t.
So, that’s the situation.
We rightly condemn racist views, but maybe we aren’t doing much good — and we might be doing some harm — by forcing people to parrot anti-racist views they don’t hold. As unpalatable as the specific case might be, there’s a broader logic there.
But if we agree it’s bad to force people to say things they don’t believe, what should we do about the fact that H.3927 does just that?
According to the bill’s certification provision, “Before any agency … of this State … may enter into any contract or award any grant, the applicable contractor or grant recipient must certify that
they do not operate any programs that promote equity, diversity, and inclusion.”
Consider what this means: All companies, non-profits, and individuals that want to do business with any state entity — from a local town council to the state’s public health agency to the University of South Carolina — have to first put down in writing that they don’t promote diversity.
It sounds like the new bill requires an anti-diversity statement.
Somehow, we’re supposed to believe that compelling diversity statements is unconstitutional and immoral, but compelling anti-diversity statements is legal and proper. H.3927 would eliminate a version of compelled speech that the prevailing powers thought was bad and replace it with a version of compelled speech that the prevailing powers think is good.
Fortunately, the constitutional contradictions of this approach are clear enough that efforts like it have already been struck down.
The president’s anti-DEI executive orders, which contain nearly identical provisions, were recently blocked on First Amendment grounds.
This isn’t a secret, of course. The free-speech problems with H.3927 are known, and if the bill is passed without being revised, it will likely get tangled up in court.
In any case, South Carolina residents are left wondering what to think of a bill that is probably unconstitutional and apparently hypocritical.
Some will shrug and say, “That’s politics.” Others will conclude that free speech apparently isn’t worth protecting if it means protecting the views of political opponents.
And many will conclude that — just like a Bradford pear this time of year — it stinks.