How to End The Censorship-Industrial Complex Through Straightforward Legislation
By Adam Garrie
Introduction
The First Amendment to the Constitution actively restrains the government from infringing on the right of all Americans to speak, worship and assemble freely. Taken at face value, this ought to prohibit most forms of discrimination based on a person’s ideology, public statements, viewpoints, political identity or activism. In reality, the First Amendment is not a direct guarantee of free speech per se. Rather, it is a restraint on governmental power to restrict these freedoms.
Historical background
Throughout the history of the United States, the public policy elements implicit in the First Amendment have been challenged. Among the most profound challenges to the spirit of the First Amendment have been slavery and the subsequent Jim Crow Laws in the southern states.
Although the 14th Amendment guarantees equal treatment and protection before the law, it can be argued that the spirit of the 14th Amendment was not fully realized until the passage of the landmark Civil Rights Act of 1964.
Arguments over Civil Rights
During Congressional debates over civil rights in the 1960s, there was a popular misconception that there were only two sides to the debate - those who wished to advance legislative protections against discriminated groups and those who opposed this on a racist basis.
In reality, there were three distinct arguments advanced at the time. Among those in favor of the Civil Rights Act were those who felt that the spirit of the 1st and 14th Amendments must be applied to areas of the private sector where discrimination had either been protected by courts, as well as in cases where state and municipal laws specifically negated elements of the 1st Amendment, namely the right to freely assemble.
According to many statutes that collectively comprise the Jim Crow Laws, a private business owner such as a restauranteur could not operate a racially integrated facility even if the owner wished to do so. This example has been offered by contemporary libertarians to justify support for the Civil Rights Act.
In the 1960s, proto-libertarians, including Senator Barry Goldwater (R-Arizona), objected to elements of Title II of the Act. This is the section which prohibits discrimination against protected classes in “public accommodations”. Included in the definition of “public accommodations” are all major privately owned facilities that are open to the public on a transactional basis. This includes (but is not limited to) retail stores, restaurants/cafes, lunch counters and bars, sporting facilities/venues, entertainment facilities, venues and hotels/motels.
Goldwater was in favor of most elements of the Civil Rights Act including Titles which guaranteed voting rights and equal access to state and municipal facilities. However, he felt that in forcing private businesses to accommodate individuals as a matter of law rather than on the basis of volunteerism, the act was in danger of being unconstitutional.
Goldwater’s objection was resolved by Supreme Court rulings which upheld the constitutionality of the Civil Rights Act. He said openly that so long as the Supreme Court found that Title II was constitutional, he would have no objective to the enforcement of the clauses therein.
In hindsight, Goldwater’s initial objection and later acceptance of the full Civil Rights Act represents the most important position held in the 1960s regarding the legislation. This is because while many supporters were motivated by altruism and many opponents were motivated by support of a socio-economic status quo that was dominant in most southern states, Goldwater’s views were unemotional and judicious.
It is with this approach that one must view the relationship between civil rights legislation and the phenomenon of the 21st century “Censorship-Industrial Complex”.
Protected classes
The Civil Rights Act established protected classes; groups identified as those which are specifically protected from discrimination under the law. These groups include race, religion, ethnicity, sex and national origin. Later judicial rulings found that sex is inclusive of sexual orientation, gender identity and pregnancy in addition to the initial spirit of the law which was to protect women from discrimination.
Other areas of federal law including the National Labor Relations Act of 1935, protects individuals against discrimination based on their membership of a labor union or their activism in favor of unionization.
California’s landmark Unruh Civil Rights Act established one of the country’s most comprehensive lists of protected classes when it was passed in 1959. This act was important in paving the way for federal legislation dealing with similar issues in 1964.
Notably absent from this list of officially protected classes is an acknowledgment of discrimination based on one’s otherwise constitutionally protected free speech.
Relevant litigation
Several landmark civil rights lawsuits regarding free speech are presently making their way through the federal courts. Such cases include Murthy v. Missouri, Kennedy v. Biden and Kennedy v. Google. Each of these lawsuits deal with similar merits, namely, the federal government’s alleged direct coercion of private companies for the purposes of censoring the constitutionally protected speech of Americans.
The resolution of this issue in favor of litigants including Robert F. Kennedy Jr., ideally by the Supreme Court, would set an important precedent in constitutional law. It would affirm that the Biden administration and federal agencies under its purview violated the First Amendment by forcing private companies such as Meta, Google and the company formerly known as Twitter into acts of mass censorship. This would be a major step in the right direction regarding the buttressing of existing civil liberties that have been infringed.
Why legislation is needed
A future victory for the constitutionalist plaintiffs in the aforementioned lawsuits is only one piece of the puzzle that makes up the censorship-industrial complex. While it would prohibit discrimination in the form of censorship in cases where such censorship originates with the government, the litigation does nothing to prevent analogous discrimination by private sector actors.
Most public policy experts and more importantly, the Supreme Court determined that the Civil Rights Act of 1964 was not only constitutional but upheld the spirit of the Constitution. Moreover, the fact that there is widespread agreement that the Civil Rights Act was required to uphold constitutional rights, is a prima facie argument in favor of legislation that upholds specific instances where civil rights are historically or presently infringed upon by both private and public sector actors.
Proposed amendment to Civil Rights Act
The Civil Rights Act has grown rather than shrunk in scope since its initial passage in 1964. Most notably, in 1972, President Nixon signed Title IX into law - an amendment to the Civil Rights Act that protected women and girls from discrimination in educational facilities that receive federal funding.
Therefore, there is a clear precedent for amending and expanding the Civil Rights Act and related legislation.
The inclusion of free speech protections in an amendment to the Civil Rights Act is both necessary and beneficial in the fight against the censorship-industrial complex. Title II guarantees civil rights even in privately owned facilities while Title IX demonstrates the public policy impact of amendments to the original Act.
Therefore, what is needed is the inclusion of a new protected class into the Civil Rights Act. This class should be broadly defined as individuals engaging in public speech, expression of viewpoints or activism that is protected by the First Amendment.
Enforcement
The inclusion of individuals engaging in free speech and activism into Civil Rights legislation would protect individuals from censorship on privately held platforms including YouTube, X, Instagram, Facebook and others. The Civil Rights Act prevents such platforms from prohibiting individuals from using said platforms on the basis of race, color, ethnicity, religion, nationality or sex. There is no reason that the platforms should not be equally restricted from prohibiting the use of said platforms by individuals whose political views are different to those among the board of directors of the companies that operate the platforms.
An amended Civil Rights Act would also assure protection of individuals targeted for their beliefs/activism by employers or entities to which they are contracted for the purposes of conducting business.
This legislation would put an end to most legal forms of so-called “cancel culture” just as the Civil Rights Act ended many forms of habitual racism in the commercial sphere.
Additional benefits
Such legislation would also bring clarity to ongoing deadlock over Section 230 of the Communications Decency Act (CDA) of 1996. Section 230 classes social media and streaming services as “platforms” rather than publishers. This is relevant because it allows the companies operating these platforms to escape the liability normally associated with publishers.
While a publisher can be sued for publishing libelous information, social media platforms themselves cannot be included as defendants in libel lawsuits due to protections offered under Section 230. However, many legislators have highlighted issues of censorship of constitutionally protected speech on these platforms. Such behavior is associated with that of a publisher rather than a platform. While a publisher curates and edits the content it offers to the public, a platform is understood as functioning in a manner more similar to a public utility.
Amending civil rights legislation to protect discrimination against viewpoints, beliefs and activism would bring much needed clarity to Section 230 by expressly prohibiting discrimination against individuals based on their speech, just as there is clarity regarding discrimination in the private sector against people because of their race or sex. This would buttress and enforce the distinction between platforms and publishers.
Exceptions
Common sense exceptions to the proposed legislation outlined in this document will follow the precedent that is applied to existing elements of civil rights legislation. For instance, a privately owned women’s sports league such as the WNBA does not engage in discriminatory practices against men, nor does BET (Black Entertainment Television) discriminate against artists who are not Black. The judicial precedents for these exceptions is clear due to the stated mission of such organizations to promote or elevate traditionally marginalized groups.
At present, many Americans who speak freely on supposedly controversial subjects face discrimination, but this would not mean that a liberal advocacy group would be forced to allow conservatives to take a prominent policy making position in such a group. Nor would it force the NRA to admit gun control advocates to its board of directors.
However, apolitical roles in these organizations would have to be open to people with differing political/social viewpoints, so long as their employment does not involve political advocacy. For instance, if a conservative applied for a job as a cleaner at the office of a liberal advocacy group, he or she would have to be given the same consideration as a conservative applicant. This follows well established precedent in civil rights case law.
Conclusion
This proposal requires very little heavy lifting by legislators. It simply expands the classes of protected groups to include those who have exercised their free speech, activism and expression alongside already protected groups. It upholds both the letter and the spirit of the Constitution just as existing elements of civil rights legislation have been found by the Supreme Court to do the same.
This is the least restrictive and most efficacious solution to the problem of censorship in today’s America.
