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It is time to look at expanding anti-discrimination laws to protect political expression.
Conservative media these days are replete with examples of people on the right being intimated, shunned, deplatformed, fired and worse for expressions of support for former President Trump. “No, anyone who supported the president, voted for him or worked for his administration now has to be hunted down and purged,” New York Post columnist Miranda Devine opined recently.
“They’re losing their jobs, having their insurance canceled, their book contracts and recording deals torn up. They are being banned from flying or banking or speaking on social media.
“A petition at Harvard University even demands Trump staffers have their degrees revoked.” US Rep. Elise Stephanik was kicked off an advisory committee of her alma mater, Harvard, for her support of President Trump. And that’s just scratching the surface. It appears that you can be fired for just having a Gab or Parler social media account.
Even Randall Lane, the “chief content editor” for Forbes Magazine, thought to be a pro-business publication established by the late Malcolm Forbes, has piled on. “Let it be known to the business world: Hire any of Trump’s fellow fabulists above, and Forbes will assume that everything your company or firm talks about is a lie.”
That’s another popular new way to silence or cancel someone. If you disagree with or dislike something someone says, just call it a “lie.”
Take gun owners: Gun control advocates for years have pressured credit card companies to refuse to honor gun sales. Former US Rep. and Democratic US Senate and Presidential candidate, Beto O’Rourke, spoke glowingly in support of that. The Obama Administration nudged credit card companies to consider firearms businesses to be “reputational risks” in order to cut off access to services.
In its final days, the Trump administration sought to prevent banks and lenders from “blackballing” industries over political considerations. The Comptroller of the Currency published a final rule on January 14th, but it may not matter – those regulations might be withdrawn and rewritten by the Biden Administration. Under the Congressional Accountability Act, Congress can also repeal the regulation.
Even Members of Congress are not immune to attacks. Sens. Josh Hawley (R-MO) and Ted Cruz (R-TX) were the subjects of an ethics complaint from 7 of their Democratic colleagues over their support of a resolution challenging the certification of presidential electors from Pennsylvania, under the Electoral Count Act. “I believe the Republican members of Congress who have incited this domestic terror attack through their attempts to overturn the election must face consequences,” declared Rep. Cori Bush (D-Mo). “We can’t have unity without accountability.” It’s no longer enough to disagree and debate, it seems, even in Congress – one must punish and silence the opposition. Even if you win.
It is generally acknowledged that the First Amendment guarantees of the freedom of speech do not apply to private firms. I’ve been told more than once by corporate executives that “there is no such thing as free speech in the workplace.” But that may not always prove correct. A smattering of state laws may protect some employees under certain circumstances. New York may be home to one of those laws. California and the District Columbia disallow workplace and other discrimination over political affiliation.
There are examples of efforts to expand Civil Rights and anti-discrimination laws. LGBTQ groups have sought to expand federal Civil Rights laws and many state “Human Rights” statutes (such as Pennsylvania) to expand the definition of sex discrimination to include sexual orientation or “general identity/expression.” Of course, thanks to the Supreme Court 2015 landmark 5-4 Obergefell decision, bans on same-sex marriage were overturned. More recently, just last June, SCOTUS expanded the 1964 Civil Rights Act’s provision over sex discrimination to include sexual orientation and gender identity. The LGBTQ community has advanced its agenda rather impressively.
Can much of that playbook be implemented to advance protections for most political speech? Perhaps, but free speech advocates worried about “cancel culture” may draw inspiration from their brethren in religious freedom victories.
Of course, the tug of war between “religious liberty” and “public accommodations” continues. Masterpiece Cakeshop’s Jack Phillips, who won a Supreme Court case over his refusal to design and bake a cake for a same-sex wedding, is but one example. Perhaps Barronelle Stutzman and her flower shop will ultimately prove to be the next.
The issue of course is when one set of laws (anti-discrimination) establish a substantial burden on the exercise of a constitutionally-protected right, whether it be speech, freedom of the press, or the free exercise of religion.
Consider the Equal Access Act. Enacted in 1984, it “forbids public schools from receiving federal funds if they deny students the First Amendment right to conduct meetings because of the “religious, political, philosophical, or other content of the speech at such meetings.” It was passed overwhelmingly by Congress, but its scope is limited to public campuses.
Conservatives are sometimes torn over whether to punish social media companies over their de-platforming of Trump supporters (including the former President himself). Some want to target Section 230 of the Communications Decency Act; others want to break up “Big Tech” platforms that act like monopolies. But with the free speech of many conservatives clearly under attack, it may be time to develop an agenda in support of anti-discrimination protection for lawful political speech.
This is tricky. It will make employers nervous, who don’t want to be forced to hire or keep employees engaged in what they consider “incendiary” social media behavior or speech that turns off customers and unduly disrupts workplace cultures (and “woke” cultures are easily triggered). Interestingly, if you’re an ice cream shop and someone with swastika tattoos saunters in, can you deny him or her service? Yes, in many if not most cases, especially if employees or customers feel threatened, or the customer acts in a threatening way. Likewise, you don’t have to hire them, either.
Conversely, should someone be discriminated against in hiring, banking, air travel, hotel or restaurant accommodations or other accommodations and essential services because they attended a Trump rally (but did not participate in any illegal activity), or worked for President Trump (ask former press secretary Sarah Huckabee Sanders about her experience with Lexington, VA’s “Little Red Hen”)? You’d be surprised how many people might say “absolutely,” including 44% of young people. And that is wrong. It is time to expand anti-discrimination laws to project lawful political affiliation and speech, especially on college campuses, most of which are federally subsidized.
The field of anti-discrimination law is complicated, sometimes confusing and and challenging. Fine lines and fog abound. But if we cannot find a way to protect people from being unfairly punished for their lawful and peaceful freedom of expression, even on private platforms, or to gain access to essential services and accommodations, then the First Amendment may not be worth the paper its printed on. Perhaps repeal of Section 230 is not the answer, but an amendment borrowed from the Equal Access Act might be an interesting start.Published in