Protect Political Speech from the Tech Oligarchs with The Civil Rights Act of 2019

If you haven't noticed that freedom of political speech in America is under increasingly effective assault by the left, you haven't been watching.  Over the internet, over lunch with colleagues, in every university classroom, indeed, everywhere in America, the wrong word, the wrong thought, can spell banishment or professional and personal destruction, or both.

Among the worst aspects of this crisis is that high-tech forums, access to which is now essential to disseminating political argument and appealing for electoral support – Facebook, Twitter, and YouTube – increasingly bar or obstruct the sharing of conservative views.  Without a dramatic statutory restatement of Americans' First Amendment right to free expression, the nation is in the fast lane to an Orwellian world where "correct" thoughts and public statements are mandatory and "incorrect" ones lead to exclusion from polite society and personal destruction.

In 1964, almost exactly 100 years after the abolition of slavery by the Thirteenth Amendment to the Constitution of the United States, America faced a problem highly instructive for our present circumstances.  The Thirteenth Amendment abolished slavery, and its close relatives, the Fourteenth and Fifteenth Amendments, supposedly prohibited government denial of equal protection of the laws or discrimination in voting rights against former slaves.

But nothing in the Civil War constitutional amendments protected minorities from private discrimination.  In consequence, there followed one hundred years during which private racial discrimination, and not merely in the South, constituted a major barrier to full and fair participation in American society for the former slaves and their descendants.

The solution the nation found for this problem in 1964 was that year's great Civil Rights Act, which, among other things, prohibited discrimination on the basis of race by private employers and all places of public accommodation.

In 2014, the U.S. Mint commemorated the 50th anniversary of this landmark extension of civil rights to private behavior.  

The problem of free expression in America today is startlingly similar.

The First Amendment's protection of free expression is a limitation only on governmental action.  The Founders never dreamed that the major private institutions of the Republic they were establishing would seriously limit freedom of speech for Americans.  But beyond any dispute, the day has come when exactly that evil is occurring.

We have a historical template for the solution, or at least a major part of the solution, to the once creeping, now galloping, repression of free speech in America.  It is high time for a new Civil Rights Act extending First Amendment freedoms to major private actors – to internet forums, large employers, and the entire K-12 and university systems.  

If conservative leaders and Republican office-holders had pushed back consistently against the 30-year process that has brought America to this sorry point, perhaps we could have avoided the necessity of a statutory cure.  But, as on so many other fronts, they failed their voters and the nation.

Now, nothing less than a great new reaffirmation of First Amendment freedoms by Congress and the president can restore the unfettered right to open public inquiry and political discourse on which the United States was founded.

Where We Are: Some Examples

Specific manifestations of America's astonishing new repression are legion.  They give some idea of the scope of the crisis.

Facebook, YouTube, and Twitter – increasingly both the means of expressing political opinion and seeking electoral support, and the primary sources for information about political issues – ban or effectively bury the speech of political conservatives by direct human intervention and algorithms that either silence conservatives or make their opinions difficult to find.

Google, by now a near monopoly search engine for all subjects including political, historical, and social issues, massages its search algorithms to make it somewhere between difficult and impossible to find information favorable to conservative views or political leaders, while articles favorable to the left miraculously appear on the first page of search results.

Brendan Eich, founder of Mozilla, the creator of Firefox, resigned after intense backlash for contributing to a statewide ballot measure successfully urging the people of California to vote for retention of the traditional definition of marriage.

James Damore, a software engineer at Google, was fired for posting a ten-page memo on an internal company bulletin board entitled "Google's Ideological Echo Chamber" that was offensive to America's intolerant and authoritarian radical feminists.  Before his firing, he was subjected to a campaign of denunciation, harassment, and threats by leftist employees, all ignored by his employer.

Students and faculty at colleges and universities, including many owned by state and local governments, are required to tailor their speech to the sensibilities of the most easily (eagerly?) offended members of the usual designated victim groups by "hate speech" guidelines, the breach of which can lead to penalties ranging from censure to mandatory "re-education" to outright expulsion.

For humanities and social science graduate Ph.D. programs and teaching positions, open conservatives pretty much need not apply.  Those who might have slipped through undiscovered carefully frame their public utterances to avoid damage to their degree or tenure prospects.

Mobs of painfully ignorant undergraduate brats shut down college speakers who they fear will present facts, arguments, or truths uncongenial to their prejudices, while university authorities do little or nothing to stop them.

Members of the Trump administration are hounded from restaurants for having the temerity to serve a president who received the votes of 63,000,000 Americans along with 306 electoral votes.

A conservative think-tank, The David Horowitz Freedom Center ("DHFC"), a fact- and logic-based conservative voice, was barred from using Visa and MasterCard to process contributions, only for those companies to relent after a public outcry.  Among the DHFC's many sins in the eyes of the left and one of the left's principal thugs, the Southern Poverty Law Center, is its fact- and history-based discussion of Islam.  The institution and ultimate reversal of Visa and MasterCard's attempted economic strangulation of a conservative nonprofit may be the most egregious example of how easily corporate America rolls over to threats from the radical left.

Harvard professor seriously proposes an explicit ban on employment or even honoring anyone who dares to serve in any capacity in the Trump administration.

None of this could have happened in America as recently as a generation ago.  More, and worse, is coming if we sit by and hope the creeping tyranny will pass.

How We Got Here: The Schools

The erosion of free expression in American society has been going on for decades.  It dates back at least to the latter 1980s, when Americans first began to hear demands from the left that college course requirements be eliminated and speech guidelines be imposed.

This development was only one consequence of something that had been going on throughout much of the 1980s.  While Ronald Reagan still occupied the White House and conservative intellectuals were tediously bragging that freedom and liberty had permanently prevailed, the left was completing its takeover of the educational system, from kindergarten through university.  Before the end of President Reagan's second term, elementary, high school, and college students had already begun to be taught that it was more important to avoid giving offense than to discuss important subjects rationally, openly, and honestly.

At the same time, the school and university curricula began to be purged of solid historical and cultural content that would have provided a factual basis for the young's rejection of the left's failed ideas.

The products of this debased educational system began emerging in the late '90s, and, contrary to the  transparently false assurances of conservative leaders and intellectuals, those students retained the ideology they had been taught and the timidity of expression that had been urged upon them.

They became the natural prey of leftist politicians, who increasingly employed epithets rather than argument in discussing political issues.  As the '90s wore on, the terms "racism," "sexism," "homophobia," and "Islamophobia" increasingly served as the left's one-word answers to conservative fact-, experience-, and logic-based arguments.  

How We Got Here: "Hate Speech"

The most effective part of the attack on free speech in America was the country's infection by the "hate speech" concept.  This concept has never been anything more than a transparently fallacious attempt to justify outlawing ideas that can't be defeated by fact or logic.

The "hate speech" idea traces its ugly origins to the Soviet Union, which employed it to justify pervasive thought control and tried unsuccessfully in 1948 to incorporate some version of it into the Universal Declaration of Human Rights.  Unsurprisingly, today, the most vocal state promoters of the "hate speech" idea are Muslim-majority countries, which employ it to prohibit rational history- and fact-based criticism of Islam.

In Western Europe, post-World War II elites, weighted down by guilt and fearful of repeating past sins, were especially susceptible to the "hate speech" virus.  As a result, the disease is now widespread and far advanced all over Western Europe.  Freedom of political speech in most western European countries is all but dead – in France, for example, publicly asserting the obvious incompatibility of Islamic values and behavior with civilized Western norms is a quick ticket to criminal prosecution.  Germany, with its "Netzwerkdurchsetzungsgesetz," a pernicious attempt to limit free expression on the internet, is following hard on the heels of France.   

America, with its unbroken tradition of constitutionally guaranteed absolute freedom of inquiry and political expression, should have strangled the odious "hate speech" idea in its crib.  But while that idea marched through the universities and Silicon Valley, those who should have resisted it – Republicans and conservatives – were led by the Bush family's non-thinkers and non-fighters, and by effete, conflict-averse conservative writers huddled in the salons of the east coast.

So no real opposition was proffered in America, and the idea took root.  It has grown since the late '90s and gathered momentum over ensuing decades, until today, after eight years of Barack Obama's leftist presidency, it stands poised to achieve the left's goal of severely curtailing Americans' right of free expression guaranteed by the 1st Amendment.

 First Amendment Freedom of Speech: Brandenburg v. Ohio

Throughout this entire 30-year period – as Europe increasingly restricted free political expression and American universities (including government-owned universities) slowly forced "hate speech" restrictions on students and faculty – the United States Supreme Court never even slightly attenuated its near absolute protection of political speech under the First Amendment.

Brandenburg v. Ohio (1969), 395 U.S. 444, is still the salutary, if solitary, voice of freedom in the prison of thought control that the American left is trying to construct.  In Brandenburg, a per curiam decision (i.e., unanimous), the Supreme Court held that the only speech government may either suppress or punish is that which advocates immediate illegality or violence and (conjunctive!) is likely to produce such immediate illegality or violence.  The two-pronged Brandenburg test makes governmental interference with political expression all but impossible in America.

Despite the strength and clarity of Brandenburg, Justices William O. Douglas and Hugo Black filed concurring opinions that would have rendered the test still more absolute (though both of these civil libertarian luminaries joined in the Court's decision).

Besides Douglas and Black, the Brandenburg Court included such liberal and civil libertarian lions as Earl Warren and William J. Brennan.

In 1969, political liberals were firmly on the side of freedom of expression.

How far we have come.

The Civil Rights Act of 2019

Brandenburg should become the law of the land – a limitation not merely on government, but on public schools, universities, large employers, and – crucially – all internet platforms and search engines.

Under the new affirmation of America's core founding principle, there should be no policing of the internet, no restriction of student or faculty speech, and no political discrimination either in employment or public accommodation, beyond the extremely limited reach of the Brandenburg test: speech that both advocates illegal or violent acts and is likely immediately to produce such acts.

As with the Civil Rights Act of 1964, the protections of the new civil rights act should have teeth: a right of action for damages, with attorney's fees to the prevailing plaintiff where the act is violated, and generous venue provisions in federal court.  Let Harvard and Google and Apple, to name a few of the nation's new authoritarians, defend their ideological bigotry.  And let them dig deep into their pockets to pay for it.

The usual howls – repeated for years by those who opposed the Civil Rights Act of 1964 – will be heard.  It will bog us down in litigation, it will be too difficult to distinguish discriminatory conduct from conduct based on legitimate factors, private choice should not be limited by government (that last will come thick and often from "conservative" commentators who failed to defend us from the destruction of free expression in the first place).  The objections will be as poorly taken as they were for the Civil Rights Act of 1964.

The Civil Rights Act of 2019 will have the same effect that the Civil Rights Act of 1964 had: most private repression of free speech in America will stop, just as most private racial discrimination stopped after 1964, and for the same two reasons: first, as in 1964, the vast majority of Americans already believed that the goal of the statute was just; and second, as in 1964, most Americans still want to behave lawfully.

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