David French Versus … the Civil Rights Act?

By John Zmirak Published on June 9, 2019

David French holds that the principles of classical liberalism are eternal and immutable, part of the natural law. So he has staked out firm positions on the freedom of contract and association. They must be virtually absolute. But this seems to conflict with his (presumed) commitment to the Civil Rights Act. Imagine reading the following by French:

Many of these racial discrimination controversies share a dreary sameness. A black patron appears at a public accommodation and faces consequences, while multiple white customers get served courteously.

The regularity of the controversies — combined with the persistence of the overt racial discrimination — is resulting in a demand that government “do something” to solve the problem. But the problem is far too complex and deep-seated for the government to solve. And if the government tries to step in with too heavy a hand, it’s going to violate the law. …

Let’s deal with the most serious issue first. American employers and consumer industries — especially in the South — exist in a largely common racial culture. While there of course exists some degree of overt discrimination against blacks, the reasons for the racial culture reach well beyond overt discrimination. …

The market in theory can rather easily correct the problem…. Persuasion, engagement, and market pressure are preferable to attempts to recruit the government to erode First Amendment protections that, in other contexts, stand as a firewall protecting black Americans. …

Conservatives Didn’t Build Facebook

Were you shocked to read that? Of course you should have been. French never wrote it. I adapted the above from French’s recent column at National Review. There he pooh-poohs the complaints of conservatives and Christians about social media censorship. I followed French almost word for word, just plugging in “blacks” for “Christians” and “public accommodations” for “social media platforms.” The principle in both arguments is that freedom of contract is a sacred, almost inviolable standard.

But of course French doesn’t believe that. When market choices contravene a principle he actually cares deeply about, such as racial equality? French is happy to back a vast government array of laws, agencies, and lawsuits designed to restrict such market freedoms. He rejects Barry Goldwater’s principled, consistent position that the market, persuasion, and “engagement” should be the tools of choice against racial discrimination.

I agree with the Civil Rights Act. But only because I believe in higher social goods than the procedural freedoms guaranteed by classical liberalism. In other words, I don’t think such liberalism is part of the immutable natural law. I don’t think Christians or conservatives betray their principles by sometimes overriding them. But unlike French, I take with great seriousness the power wielded by social media companies to silence Christian (and also conservative) speech. I won’t shrug at that any more than I would at “whites-only” lunch counters. Or say, “Let the market fix it.”

Over and over again, I’ve seen putative classical liberals shrug at Christian pastors whose sermons got deleted. Or immigration critics whose arguments were labeled hate speech, and banned. They note that conservative Christians “didn’t build” Facebook, and “don’t own” Twitter.

Sneering at the Silenced

Over and over again, I’ve seen putative classical liberals shrug at Christian pastors whose sermons got deleted. Or immigration critics whose arguments won the label of hate speech, and a ban. They note that conservative Christians “didn’t build” Facebook, and “don’t own” Twitter. Then harrumph at the thought of the government forcing private companies to take down their de facto “No Christians allowed” signs. They smirk as they say, “Go found your own Facebook.” Would they say that to black patrons who didn’t build McDonald’s or found Microsoft? Tell them to go open their own restaurants and start their own computer companies?

I’ve come back at such “freedom” advocates. I’ve asked them if they also oppose the Civil Rights Law. It intrudes much more aggressively on market freedoms. The act doesn’t just protect black Americans descended from slavery or victimized by segregation. It also covers women, immigrants, and other groups never persecuted by the U.S. government. The vast Leviathan of anti-discrimination law controls every hiring and firing decision. Every drawing of every school district. And every choice by a homeowner to rent the second floor of his two family house.

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A bureaucrat or plaintiff need not even demonstrate discriminatory intent. They need to show mere “disparate impact” caused by a totally neutral requirement. For instance an IQ test for accountants or physical fitness exam for fireman. If the outcome is unequal, that can be enough to prove discrimination. Hooter’s restaurant is not my lunch spot of choice. But it had to seek a special exemption designed for strip joints so that it could hire only buxom female waitstaff. If the Equality Act passes, God help us. Christian businessmen and even clergy may face a whole new set of attacks over sexual orientation discrimination.

The Online Civil Rights Act of 2019

This is a far, far more onerous set of impositions on freedom of contract than any conservative seeks. For instance, Will Chamberlain of Human Events. All he asks is that we add “viewpoint” and “religion” as grounds for protection. And only as narrowly applied to allegedly “neutral” social media “platforms.” As Chamberlain explained in an interview at The Stream:

Conservatives should frame access to large social media platforms as a civil right. In 2019, you don’t have meaningful free speech if you can’t speak on Facebook and Twitter. Sure, you could go to a public park and scream into the ether. And black people who were turned away from motels in the Jim Crow South? They could always sleep in their cars. …

[W]e should focus on passing laws – at the state and federal level – that codify platform access as a civil right.

You do that by creating a private right of action (a new type of lawsuit) for users who get banned for lawful speech. Let’s say Facebook takes away your account without demonstrating that you broke the law. You should be able to walk into court the very next day. Then walk out with an immediate injunction that forces Facebook to give you your account back.

There are only two reasons why any friends of conservative politics or Christian freedom would oppose such legislation.

  1. Either they believe in the absolute freedom of contract and association. So they support repeal of the Civil Rights Act and abolition of the EEOC. Or
  2. They don’t think religious or political freedom of speech are important enough to protect.

If 1., they’re politically quixotic, but intellectually consistent. If 2., they’re willing to trample market freedoms when it comes to racial bean-counting. But not when it means the right to speak up for the Gospel. So they’re just not on our side. Not when it counts.



John Zmirak is Senior Editor at The Stream. And co-author of The Politically Incorrect Guide to Immigration. Follow him on Twitter @jzmirak. Follow The Stream @streamdotorg.
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