Commentary

Civil Rights vs. Freedom of Speech

verywhere the Left gets in power, freedom of speech is crushed. That fact is so well known it's hardly worth repeating. Nicaragua, Cuba, North Korea, and even Canada and England have all lost much of whatever freedom of speech they had, either through outright suppression or through so-called hate speech laws.

That's why it's so troublesome to see the same thing happening in the United States. As the lights of freedom dim in America, we are increasingly forced to believe in an ideology created by fools with power, lest we lose our jobs. After Paula Deen, Brendan Eich, and so many others, few can seriously doubt that the Left would suppress all opposing speech if they could.

But we still have people who repeat the old canard about corporations having the right to fire their employees for any action. If you ever used the N word you're accused of being a R, and you get F'd. Even some old-time conservatives, who should know better, took part in the media bashing of that old cowboy Cliven Bundy for using the “other” N word (we'll have to start numbering them: N1, N2, ...) and for trying to state his opinion, however clumsily, about the welfare system.

Nobody can be sure exactly what Paula Deen actually said, because we're not allowed to print the word. Even if you put it in quotes and star out all the letters, you get accused of using it. You may not be able to fire the owner of a cattle ranch, but Paula Deen and lots of others were not so lucky. The fact that someone can be fired for using a “bad word” (or even something that sounds vaguely reminiscent of it, as a guy named David Howard discovered) shows that humans haven't evolved past the intellectual level of a third grader. But, say the defenders of this practice, it's all part of our glorious system, where anybody can suppress your constitutional rights, and as long as your name is not the United States Government, we're cool with it.

Except it is no longer true. The argument that it's okay for private individuals to violate the Constitution because you're a private citizen went out with the Civil Rights Act of 1964, which prohibits discrimination against race, color, religion, sex, or national origin. Originally, these were all characteristics over which the individual has no choice, such as race and gender. It was later extended to cover pregnancy, age, and disability, and then to individuals who participate in elective behavior, such as homosexuality, that offends the majority of people. It is now against the law, for example, for private individuals to discriminate on the basis of transgender status or “gender identity.”

Private employers may still discriminate on the basis of traits that are called “bona fide occupational qualifications,” provided that these are stated at the time of employment. For example, age discrimination (e.g., mandatory retirement) is permitted provided the employer notifies you of the policy before you're hired, and employers are permitted to discriminate on the basis of sex when it's essential for their job, as in the hiring of Playboy bunnies.

But anyone who doesn't believe that the Constitution doesn't apply to private individuals is invited to try refusing to bake a cake for a gay couple and see whether the government gets involved. Whether this is right or wrong, to say that the state is not part of this is inaccurate. The state already is involved. The law crossed the line of banning private discrimination years ago. This applies not only to race, but to a variety of freely chosen behaviors.

When the government crossed the line and began treating freely chosen behaviors on the same basis as genetically determined traits, it put itself right in the middle of regulating private behavior. Whether it belongs there or not, the result is that our laws have become inconsistent. Why should it be illegal for private individuals to violate some individual rights but not others? Why should companies be allowed to fire people for speech that is not only clearly not a bona fide occupational qualification, but is also a Constitutional right? According to the Constitution, those who wish to participate in their right to free speech are also a protected class. If a person's religion makes him or her opposed to homosexuality, they have a clear Constitutional right to express that personal belief. A religious belief, or any other kind of belief, is meaningless if the believer is not allowed to express it.

The argument becomes: If the government can prohibit discrimination to protect one Constitutional right, it has to protect all of them. Otherwise, the whole basis for civil rights legislation is now on shaky ground.

The goal of the Glaadcarthyists is to suppress our freedom to express opposing viewpoints in order to tilt the playing field in favor of their ideology. It is true that it was Mozilla, not the government, that forced Brendan Eich to resign. But freedom of speech is meaningless if employers can deprive you of your livelihood for engaging in it. By threatening it, the Glaadcarthyists and their allies undermine the very civil rights laws they claim to be defending.

And maybe these laws need shaking up. Despite what we're told to believe, it is not at all clear scientifically whether homosexuality is an immutable, inborn trait, an ordinary behavior, or even a manifestation of some underlying pathology. By prematurely taking one side, the government has opened up a can of worms. They've taken a perfectly good SNAFU and turned it into a FUBAR.

What the Glaadcarthyists really want, of course, is hate speech laws. They would use these to ban speech that conflicts with their political agenda. Corporations and academics alike have been going out of their way to appease them. But hate speech laws would not only invalidate the First Amendment, they would undermine the entire body of civil rights legislation. Our legal system is already in an inconsistent state: we are prohibited from firing people, but we can be fired for complaining about it. Hate speech laws would strangle our democracy.

If conservative or libertarian employers went on the offensive, and simultaneously fired a few thousand people for speaking in favor of abortion, the Left would be running to the government for new laws to prohibit firings based on personal belief. Maybe that's the purpose: guaranteed employment is their goal, and they're expecting us to get it for them. But guaranteed employment is not what they will get. What they will get is either an expansion of civil rights laws to block the nasty things they're doing now, or gutted civil rights laws that make their position even weaker. These days, it seems, the Law of Unintended Consequences, not the Constitution, reigns supreme.