Should Political Speech be a “Civil Right?”

 

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Comptroller of the Currency published a final rule on January 14th, but it may not matter – those regulations might be withdrawn and rewritten by the Biden Administration.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.

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  1. Jerry Giordano (Arizona Patrio… Member
    Jerry Giordano (Arizona Patrio…
    @ArizonaPatriot

    Interesting post.  I generally think that the anti-discrimination laws are a bad idea, as they seem to be subject to bad-faith accusations, the allegations are often almost impossible to prove (not that this stops anyone), and they may now be doing more harm than good.  However, you have a point, and if we’re going to leave a bunch of other anti-discrimination provisions in place, extension of such law to political speech might make sense.


    Kelly D Johnston
    : There are examples of efforts to expand Civil Rights and anti-discriminations 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.”

    These efforts are at an end, at least at the federal level.  SCOTUS ruled last June that the 1964 Civil Rights Act’s prohibition on “sex” discrimination extends to homosexuals and transsexuals.  It was a 6-3 decision, authored by Gorsuch, who was also joined by Roberts.

    • #1
  2. Kelly D Johnston Coolidge
    Kelly D Johnston
    @SoupGuy

    Jerry Giordano (Arizona Patrio… (View Comment):

    Interesting post. I generally think that the anti-discrimination laws are a bad idea, as they seem to be subject to bad-faith accusations, the allegations are often almost impossible to prove (not that this stops anyone), and they may now be doing more harm than good. However, you have a point, and if we’re going to leave a bunch of other anti-discrimination provisions in place, extension of such law to political speech might make sense.


    Kelly D Johnston
    : There are examples of efforts to expand Civil Rights and anti-discriminations 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.”

    These efforts are at an end, at least at the federal level. SCOTUS ruled last June that the 1964 Civil Rights Act’s prohibition on “sex” discrimination extends to homosexuals and transsexuals. It was a 6-3 decision, authored by Gorsuch, who was also joined by Roberts.

    Thank you for the reminder about that 6-3 decision; I’d forgotten. I’ll edit the post to reflect that. Good catch.

    • #2
  3. SkipSul Inactive
    SkipSul
    @skipsul

    Anti-discrimination laws are tricky.  They sound good in theory, but instead often create new bureaucracies while dividing people still further into protected classes.  They also have the effect of restricting the ability of businesses to legitimately refuse to do business for reasons of conscience and ethics.

    Take the case of Masterpiece Cakes: In that case we had two different conflicting “civil rights”: religion vs. sexual orientation.  At stake is the delineation marking where one is allowed to express one’s faith, and where one is not.  One side or the other was bound to lose, and as far as the Left is concerned, religious freedom ends when you leave the church doors – it ceases to exist anywhere else.  

    The more we stake out realms of civil right, the more we will have border clashes where the Right to X ends, and the Right to Y is supreme.  

    This is because we keep defining “Rights” in the positive sense – as duties and property you can claim from other people.  Any “right” you try to mark out, if it requires other private actors to cede you some right or property of their own, makes that “right” into a new political football and turf war.

    Too many things are already political battles over “rights” and obligations – tread carefully.

    • #3
  4. Stad Coolidge
    Stad
    @Stad

    Kelly D Johnston: 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.

    Just wait until we go to a non-monetary economy.  Then Trump voters won’t even be able to buy food . . .

    • #4
  5. Dbroussa Coolidge
    Dbroussa
    @Dbroussa

    I think that this was never an issue before the past couple of decades because people never thought that someone would lose their job for their political beliefs.  This is a side effect of the totalitarian nature of politics in the modern life.  When the gov’t provides and regulates everything…then they get a say in everything you do.

    • #5
  6. Aaron Miller Member
    Aaron Miller
    @AaronMiller

    I have long been concerned with the broadening practice of corporations and organizations forbidding kinds of speech by members well beyond corporate activities.

    It’s complicated. But a culturally and politically devastating portion of American citizens now cannot express themselves freely in public statements without risking unemployment. 

    American freedoms as recognized by the US Constitution are radical. America represents an extreme preference for individual liberty over security. Increasingly, however, that America exists more in theory than in practice and applied law. 

    More than a few immigrants from totalitarian states have written in recent years that we are losing freedom of expression in ways familiar to them. One’s freedoms increasingly depend less on legal and policy protections than on not being ratted out by coworkers and neighbors. Today, you can be fired simply for calling a biological man a man on a public forum completely unrelated to work. 

    The 1st Amendment is not concerned with private expression. It protects public expression. Very little should be confined to private discussions.

    • #6
  7. Guruforhire Member
    Guruforhire
    @Guruforhire

    I think that just enforcing the existing laws against the left would do most of the good work, but yes I think the parade of horribles has gotten to the must be dealt with.

    • #7
  8. Bob Thompson Member
    Bob Thompson
    @BobThompson

    Monopolies allow for these conditions and serve two different masters, money and power. Free market advocates tend to allow discrimination as a choice for the players but the existence of monopolies makes it complicated.

    • #8
  9. Ray Kujawa Coolidge
    Ray Kujawa
    @RayKujawa

    Aaron Miller (View Comment):

    American freedoms as recognized by the US Constitution are radical. America represents an extreme preference for individual liberty over security. Increasingly, however, that America exists more in theory than in practice and applied law. 

    The 1st Amendment is not concerned with private expression. It protects public expression. Very little should be confined to private discussions.

    Political speech is the highest form of speech deserving protection under the First Amendment. 

    • #9
  10. Gary McVey Contributor
    Gary McVey
    @GaryMcVey

    Dbroussa (View Comment):

    I think that this was never an issue before the past couple of decades because people never thought that someone would lose their job for their political beliefs. This is a side effect of the totalitarian nature of politics in the modern life. When the gov’t provides and regulates everything…then they get a say in everything you do.

    In the Fifties, thousands of people were fired for being Communists, even if they’d quit the party in 1936. Conservatives didn’t breathe a word of complaint, as they were the ones doing the firing. Gay teachers were routinely fired right into the 1970s. The pendulum has swung far in the other direction now…but the notion that we were better and kinder about this than the Left doesn’t pass the laugh test. 

    • #10
  11. Ray Kujawa Coolidge
    Ray Kujawa
    @RayKujawa

    Bob Thompson (View Comment):

    Monopolies allow for these conditions and serve two different masters, money and power. Free market advocates tend to allow discrimination as a choice for the players but the existence of monopolies makes it complicated.

    Money and power are preserved by restricting the political speech of their political enemies. In this way they serve themselves by protecting their political associates in government, who are in position to strategically award them favors not available to their political enemies. The larger the corporation or monopoly, the more effective they can be in carrying out the will of their compatriots in government. 

    • #11
  12. Kelly D Johnston Coolidge
    Kelly D Johnston
    @SoupGuy

    SkipSul (View Comment):

    Anti-discrimination laws are tricky. They sound good in theory, but instead often create new bureaucracies while dividing people still further into protected classes. They also have the effect of restricting the ability of businesses to legitimately refuse to do business for reasons of conscience and ethics.

    Take the case of Masterpiece Cakes: In that case we had two different conflicting “civil rights”: religion vs. sexual orientation. At stake is the delineation marking where one is allowed to express one’s faith, and where one is not. One side or the other was bound to lose, and as far as the Left is concerned, religious freedom ends when you leave the church doors – it ceases to exist anywhere else.

    The more we stake out realms of civil right, the more we will have border clashes where the Right to X ends, and the Right to Y is supreme.

    This is because we keep defining “Rights” in the positive sense – as duties and property you can claim from other people. Any “right” you try to mark out, if it requires other private actors to cede you some right or property of their own, makes that “right” into a new political football and turf war.

    Too many things are already political battles over “rights” and obligations – tread carefully.

    I completely get that. It is a tricky area. Most conservatives and nearly all libertarians have naturally negative reactions. But that horse long left the barn, and we’re hanging onto an empty rope. We might at well ride it. 

    • #12
  13. Kelly D Johnston Coolidge
    Kelly D Johnston
    @SoupGuy

    Guruforhire (View Comment):

    I think that just enforcing the existing laws against the left would do most of the good work, but yes I think the parade of horribles has gotten to the must be dealt with.

    Yes, it would be nice not to have double standards, one for the left (none) versus the right, often the ones we impose on ourselves. It’s time to shove the left’s McCarthyism back into it’s ugly face.

    • #13
  14. OldPhil Coolidge
    OldPhil
    @OldPhil

    If they thought a few hundred goofballs running through the Capitol was bad, they’re going to be very surprised how this ends.

    • #14
  15. Guruforhire Member
    Guruforhire
    @Guruforhire

    Kelly D Johnston (View Comment):

    Guruforhire (View Comment):

    I think that just enforcing the existing laws against the left would do most of the good work, but yes I think the parade of horribles has gotten to the must be dealt with.

    Yes, it would be nice not to have double standards, one for the left (none) versus the right, often the ones we impose on ourselves. It’s time to shove the left’s McCarthyism back into it’s ugly face.

    I wouldn’t say it like that.  I just think that we either nip this now, or we will create parallel societies and that will result in a hot war.

    • #15
  16. Kelly D Johnston Coolidge
    Kelly D Johnston
    @SoupGuy

    Guruforhire (View Comment):

    Kelly D Johnston (View Comment):

    Guruforhire (View Comment):

    I think that just enforcing the existing laws against the left would do most of the good work, but yes I think the parade of horribles has gotten to the must be dealt with.

    Yes, it would be nice not to have double standards, one for the left (none) versus the right, often the ones we impose on ourselves. It’s time to shove the left’s McCarthyism back into it’s ugly face.

    I wouldn’t say it like that. I just think that we either nip this now, or we will create parallel societies and that will result in a hot war.

    Sometimes you have to call things for what they are, especially when history is repeating itself. It is McCarthyism. 

    • #16
  17. Hoyacon Member
    Hoyacon
    @Hoyacon

    Gary McVey (View Comment):

    Dbroussa (View Comment):

    I think that this was never an issue before the past couple of decades because people never thought that someone would lose their job for their political beliefs. This is a side effect of the totalitarian nature of politics in the modern life. When the gov’t provides and regulates everything…then they get a say in everything you do.

    In the Fifties, thousands of people were fired for being Communists, even if they’d quit the party in 1936. Conservatives didn’t breathe a word of complaint, as they were the ones doing the firing. Gay teachers were routinely fired right into the 1970s. The pendulum has swung far in the other direction now…but the notion that we were better and kinder about this than the Left doesn’t pass the laugh test.

    I disagree.  First of all, learning from history is not about one for one comparisons to the past without context.

    I’m not familiar enough about the matter of firing gay teachers to comment, but there was a seditious aspect to the presence of communists in Hollywood.  In its place and time, post World War II, in the era of Russia getting the bomb and spies actually being in our midst, analogies to today seem weak.

    I’ll qualify this by saying that this isn’t one size fits all, and I have no doubt that there were injustices committed and people were deprived of their livelihoods.  But the hagiographies of some of those affected courtesy of Hollywood films (see, e.g.,  Trumbo) have only served to muddy the waters.

    • #17
  18. SkipSul Inactive
    SkipSul
    @skipsul

    Kelly D Johnston (View Comment):
    Sometimes you have to call things for what they are, especially when history is repeating itself. It is McCarthyism. 

    Was McCarthyism broken by changing laws?  No.  The culture broke.  McCarthy over-reached badly, to the point where even those nominally on his side left him hanging.

    The Left is already over-reaching, stupidly thinking that they somehow have a mandate, even as all the evidence points the nation wanting to just get on with life, away from the childish and incompetent partisan flame wars of Trump and moral crusades of the left that are spitting in the eye of the American middle.

    • #18
  19. Ontheleftcoast Member
    Ontheleftcoast
    @Ontheleftcoast

    Kelly D Johnston:

    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.

    Here’s a “worse“:

    Despite having no felony or domestic violence convictions and never been declared to be mentally unfit by a judge, [Laura] Loomer’s name has allegedly been placed in a secret Federal “no buy” list that the FBI keeps. This list is part of the federal government’s National Instant Criminal Background Check System (NICS).

    Loomer claims to have learned during her campaign for Congress that she was put on this “no buy” list, which led to the denial of her right to bear arms.

    She added further context to this move by the FBI:

    My name landed on this secret “no buy” list shortly after I questioned the former FBI director James Comey at his first book signing event about a number of lies in his published memoir. I was acting entirely legally in my role as an investigative journalist and as an attendee of the event.

     

    • #19
  20. Kelly D Johnston Coolidge
    Kelly D Johnston
    @SoupGuy

    SkipSul (View Comment):

    Kelly D Johnston (View Comment):
    Sometimes you have to call things for what they are, especially when history is repeating itself. It is McCarthyism.

    Was McCarthyism broken by changing laws? No. The culture broke. McCarthy over-reached badly, to the point where even those nominally on his side left him hanging.

    The Left is already over-reaching, stupidly thinking that they somehow have a mandate, even as all the evidence points the nation wanting to just get on with life, away from the childish and incompetent partisan flame wars of Trump and moral crusades of the left that are spitting in the eye of the American middle.

    That’s not quite the story with regard to McCarthy. Political leaders finally began to stand up to him and hold him accountable, along with his own self destruction and excesses. Margaret Chase Smith and the media finally began to do their job. The media is all in on silencing conservatives today. While the left almost always overplays their hand, I’m not sure we can afford to count on that. My point is this – we need an agenda that not only exposes theirs, but asserts our basic rights. The culture in the 1950’s was very different than the one we face today – not to mention the media.

     

    • #20
  21. SkipSul Inactive
    SkipSul
    @skipsul

    Kelly D Johnston (View Comment):
    My point is this – we need an agenda that not only exposes theirs, but asserts our basic rights.

    OK, but you have to be very specific here as to what rights you are asserting.

    Do you have the right to free speech?  Sure, but that doesn’t give you the right to hold a rally on my lawn.

    Do you have the right to print what you want?  Sure, but that doesn’t mean any printer or publisher has to take your business.

    Do you have the right to say what you want online?  Sure, but that doesn’t give the right to do so on any platform of your choosing.

    So the details here are of the utmost importance.

    • #21
  22. Columbo Member
    Columbo
    @Columbo

    The First Amendment is First … for a Reason! It is incredible the assault that has been permitted upon freedom, decency and the greatest Republic on the face of the Earth.

    Because Trump. Sad.

    • #22
  23. CACrabtree Coolidge
    CACrabtree
    @CACrabtree

    Hoyacon (View Comment):

    Gary McVey (View Comment):

    Dbroussa (View Comment):

    I think that this was never an issue before the past couple of decades because people never thought that someone would lose their job for their political beliefs. This is a side effect of the totalitarian nature of politics in the modern life. When the gov’t provides and regulates everything…then they get a say in everything you do.

    In the Fifties, thousands of people were fired for being Communists, even if they’d quit the party in 1936. Conservatives didn’t breathe a word of complaint, as they were the ones doing the firing. Gay teachers were routinely fired right into the 1970s. The pendulum has swung far in the other direction now…but the notion that we were better and kinder about this than the Left doesn’t pass the laugh test.

    I disagree. First of all, learning from history is not about one for one comparisons to the past without context.

    I’m not familiar enough about the matter of firing gay teachers to comment, but there was a seditious aspect to the presence of communists in Hollywood. In its place and time, post World War II, in the era of Russia getting the bomb and spies actually being in our midst, analogies to today seem weak.

    I’ll qualify this by saying that this isn’t one size fits all, and I have no doubt that there were injustices committed and people were deprived of their livelihoods. But the hagiographies of some of those affected courtesy of Hollywood films (see, e.g., Trumbo) have only served to muddy the waters.

    Yeah, I don’t believe I’d get too far out over my skis concerning any “laugh tests”.  It’s true that thousands of lives were ruined by McCarthyism but what is going on today has the potential to affect millions of lives.  

    • #23
  24. Fredösphere Member
    Fredösphere
    @Fredosphere

    It’s funny, I just started writing a post suggesting we apply existing public accommodation law to social media. I’d prefer a more pure libertarian approach but if we’re going to have public accommodations, then I think social media sites should be part of it.

    If a site bans a person, let them be forced to state specifically what rule has been broken, and let the rules be neutral as to political and religious views.

    • #24