PHIL HAMBURGER: America Needs a New Civil Rights Act: The 1964 law targeted racial discrimination. Today’s problem is the suppression of dissent.
The threat again comes from discrimination, but now by the federal government as well as states and private organizations. Most worrisome is federal and state encouragement for private entities to discriminate against Americans with dissenting views. Also significant is discrimination that bars Americans from participating in services ordinarily open to the public.
An example of the latter is PayPal’s recent announcement that it will confiscate $2,500 from customers who spread “misinformation.”
The company later claimed the announcement was “incorrect information”—dare one say “misinformation”? But it turns out that PayPal still threatens to take $2,500 from customers for promoting “intolerance that is discriminatory.” Perhaps it should fine itself.
At least PayPal’s sharp treatment of its customers ensured a sharp reaction. Many canceled their accounts, and the company’s stock price dropped 6% in one day. When companies are too crude in their censoriousness, cancellation can go two ways.
Too often, however, private and government discrimination isn’t as candid and doesn’t provoke a concentrated response. Private professional organizations—for example, those overseeing lawyers and even real-estate agents—are taking aim at practitioners who don’t have the most up-to-date views on race under the guise of barring racial discrimination. Yet the response is muted because the assault on dissent is subtle and many critics within the professions are fearful. PayPal is exceptional only in its ham-handedness, and we can’t assume market remedies will suffice for more sophisticated discrimination.
Private organizations don’t always act on their own. Government works through social-media platforms to censor Americans who refuse to follow orthodoxy on Covid-19 and election fraud. It uses interpretations of Title IX, which bans sex discrimination in schools, to require private regulation of speech about sex, including dissent on sexual politics. For decades the federal government has demanded that universities establish institutional review boards to license much academic inquiry and publication, predictably with a tilt against scholars whose views are deemed old-fashioned or insensitive.
States are no better. Many leave the regulation of lawyers to bar associations, some of which are adopting rules that penalize lawyers for “discrimination,” understood to include insufficiently advanced opinion. Some police forces tie promotions to education—provided by organizations that discriminate against the unwoke.
If federal or state governments engaged in viewpoint discrimination, they would violate the First Amendment. But they seem to think they can evade constitutional limits by getting private entities to do their dirty work.
Prior to the Civil Rights Act, people said “they’re private companies, they can discriminate if they want to.” That changed, and it can change again with regard to censorship.