New York City is censoring its fashion industry, under the theory that the industry’s products and marketing messages constitute racial discrimination.
For example, its Commission on Human Rights has ordered Prada to stop selling insensitive merchandise, hire a diversity director, and do the government’s bidding regarding what products it sells and how it markets and advertises.
This violates the First Amendment and exceeds the commission’s authority under the city’s antidiscrimination law. The goal of antidiscrimination laws is to give everyone, regardless of their race, equal access to good and services — not to eliminate politically incorrect products and services.
As Reason Magazine’s Robby Soave notes,
“The New York City Commission on Human Rights, an oversight agency that monitors compliance with the city’s incredibly broad anti-discrimination law, has ordered the fashion company Prada to stop selling certain toy dolls—described by many as racist caricatures akin to blackface—and send its employees to sensitivity training.
In doing so, the overzealous agency is claiming vast new powers to police a private entity’s behavior. Unfortunately, Prada is meekly submitting to the commission’s demands, and other companies—including Dior and Gucci—are facing similar inquisitions.”
The Commission began an investigation into Prada after receiving complaints that some of its merchandise was insensitive, according to The New York Times:
"For the last year, the New York City Commission on Human Rights, the law enforcement agency of the municipal government charged with overseeing the city’s human rights laws as they apply to housing, retail establishments and other areas, has been investigating and in settlement talks with Prada, a process culminating in a deal signed on Feb. 4, just in time to set nerves on edge during fashion month."
Prada received a cease and desist letter — a warning to quit selling the dolls — in December 2018, after a commission member saw a civil-rights lawyer’s Facebook post about the dolls. That lawyer filed a discrimination complaint with the commission in January 2019.
As Soave notes:
“Prada’s signed agreement with the commission is incredible. The company will put all New York store employees—and company executives in Milan—through racial sensitivity training. Prada will also appoint a diversity and inclusion officer, subject to the commission’s approval. This person will be tasked with ‘reviewing Prada’s designs before they are sold, advertised or promoted in any way in the United States,’ according to the terms of the agreement. Even The Times’ reporter found this to be a fairly absurd requirement— ‘Given the hundreds of products Prada creates every season, this is a pretty extraordinary task,’ the articles notes in an aside.”
The city’s actions are expressly aimed at speech — how the companies market and advertise — and its content. “We hope companies realize they need to be very careful about how they market and advertise—that they need to have a larger social and cultural consciousness,” the deputy commissioner told The Times.
But commercial advertising and marketing are generally protected by the First Amendment, even when they are racially offensive.
For example, a court ruled that a food truck company could name itself “Wandering Dago,” after a derogatory term for Italians. (See Wandering Dago v. Destito, 879 F.2d 20 (2d Cir. 2018)). Prada’s toy dolls were not nearly as offensive as that term, which the food truck company was nevertheless allowed to use as a business name and in the packaging for its food.
Commercial advertising can be restricted in certain contexts when it conveys the message that customers of a certain race are not wanted; but the fact that Prada carried a few insensitive dolls among a large array of merchandise does not rise to this level, just as a merchant displaying products bearing Polish jokes was held by the New York courts not to violate state antidiscrimination law. (See State Division of Human Rights v. McHarris Gift Center (1980)).
The demand that a city-approved diversity director review “Prada’s designs before they are sold, advertised, or promoted in any way in the United States” is beyond the commission’s authority under city law, even putting aside the First Amendment. Changing or eliminating products is beyond the commission’s authority under laws against racial discrimination, which are designed to give minorities access to goods and services, not to change what those goods and services are. The court ruling in favor of McHarris Gift Center said that a civil-rights agency didn’t even have jurisdiction under antidiscrimination laws to investigate a merchant for carrying offensive products.
Dictating what products are for sale is simply not the function of antidiscrimination laws. A civil rights agency can’t ban a bookstore from carrying racist books (which a few minorities might want to purchase to learn more about the history or origins of racism), or prohibit a video store from carrying videos that are sexist or offend someone’s religious beliefs, even if such products offend customers based on their race or sex.
Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department.