America Needs a New Civil Rights Act
The 1964 law targeted racial discrimination. Today’s problem is the suppression of dissent.
By Philip Hamburger, WSJ
Oct. 16, 2022 5:35 pm ET
It is time for a new civil-rights act that addresses the dangers of our time, not merely those of the 1960s.
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.
One way to control such behavior would be to follow the example of civil-rights laws that tie antidiscrimination principles to federal funds and other privileges. Title IX, for instance, conditions federal education funding on the absence of sex discrimination. But as should be obvious from Title IX, conditioning antidiscrimination principles on federal funding leaves much discretion for abuse.
The funding justification for regulation increasingly reaches not only subsidized programs but entire institutions. And almost every major institution receives federal funding. So the potential for privatized government discrimination is nearly unlimited. In education, conditions on funding interfere with academic speech and the freedom of private institutions.
The first step in a constitutionally more modest approach would be to recognize that government power shouldn’t be exercised in ways that discriminate. On this basis, a new civil-rights act could bar discrimination in the exercise of government power. At the governmental level, this would prohibit viewpoint discrimination by federal and state officials and make their discrimination subject to suits for damages without qualified immunity.
The bar against discriminatory exercises of government power would also reach private bodies to the extent they exercise the power of government. Just because government power is privatized doesn’t mean it should escape the ordinary limits on such power. So when institutional review boards, Title IX committees, bar associations or other professional organizations exercise delegated legislative or judicial power, they should be vulnerable to pay damages for their viewpoint discrimination.
Second, government shouldn’t be able to use private organizations to evade the First Amendment. So when private entities cooperate with government to execute its policies that violate the First Amendment, they should be accountable. The social-media platforms, for example, shouldn’t be allowed to cooperate with the government in carrying out its viewpoint discrimination.
Third, private entities that generally hold themselves open to the public also shouldn’t be permitted to discriminate. This is especially important because such enterprises are often vulnerable to government pressure or inducements to discriminate—as revealed by Operation Choke Point. This Obama-era Justice Department program pressured banks to deny payment services to disfavored but lawful businesses—an effort at rule by boycott rather than by law.
The solution is to recognize and clarify the common-carrier antidiscrimination duties of private companies. The Texas free-speech statute recently upheld by the Fifth U.S. Circuit Court of Appeals (in NetChoice v. Paxton) requires large social-media platforms to live up their common-carrier duty by refraining from viewpoint discrimination. A new civil-rights act could apply common-carrier duties to payment systems, such as PayPal and GoFundMe, so they don’t discriminate (except as allowed in narrow circumstances by common-carrier principles or by antiterrorism and anti-money-laundering rules).
A civil-rights law encompassing these three principles would be much less intrusive than the old civil-rights laws, which apply broadly to private employers and otherwise take aim at private discrimination. This act would restrict private parties only if they exercise government power, if they cooperate with the government in enabling it to evade the First Amendment, or if they function as common carriers by holding their services open to the public.
We live at a time when government and private parties unite in censoriousness. Government runs its power through private entities and uses them to discriminate, and many of them discriminate in crucial services that traditionally have been open to all. Such discrimination will further divide our society by making dissent a basis for exclusion. A new civil-rights law is profoundly necessary.
Mr. Hamburger is a professor at Columbia Law School and CEO of the New Civil Liberties Alliance.