Regulating The Business of Racism

Not all rights in the Bill of Rights are equal. Every right you have depends on your ability to go before an impartial judge to complain of your treatment at the hands of the executive; and your ability to communicate your preferences to other people, including your representatives in the legislature. If all of your other rights were lost, as long as you still had the right to speak your mind and be heard, there’d still be hope. This is why government regulation of expression is so dangerous, no matter how well-intended it may be. The right to speak your mind is the most precious right you have. Reciprocally, the government’s power to censor human expression is its most dangerous.

Many countries have laws against “hate speech.” Depending on where you are, you can be imprisoned for advocating for genocide (Canada); for insulting or disparaging someone’s race, religion, skin color or sexual orientation (Denmark, Iceland), or for denying that the Holocaust happened (France, Belgium) – just to give a few examples. In the US, all such laws would be unconstitutional – leaving Americans relatively free to spew whatever madness or hatred that strikes their fancy.

Then there’s the US Civil Rights Act. While a private citizen can put up racially offensive signs on his front lawn, or publish newsletters denigrating particular ethnic groups, in business he is NOT free to discriminate against customers or employees on the basis of race or religion. This dichotomy is justified because commerce does not get the same protection as civil and political expression. (Up until recently, the US Supreme Court understood the difference between a person and a firm; and between speaking and spending.) Some conservatives complain that this is an overreach of government power – that forcing a restaurant owner, e.g., to serve whites is a denial of his property rights, if not his right to express a particular view by a specific means.

The NFL’s Washington franchise, as a business under US law, cannot discriminate against customers or employees on the basis of race. It is not clear whether a Native American working for the firm could sue the team on the theory that its use of the term Redskins constitutes a form of harassment. For illustration, one might imagine a black supremacist starting a business that prints racially disparaging bumper-stickers. (The Field Guide defers to its readership the imagining of a few especially offensive examples.) Clearly, a white person who applies for employment in such a firm must be treated equally for hiring purposes. But once hired, could he thereafter sue the firm because production of its only product constitutes a denial of his civil rights?

The aim is to demonstrate that several liberal principles are in conflict in this set of issues. Protecting the sensibilities of minorities is important. No less important in a polyglot society is the value of toleration – ensuring individuals a maximum of latitude to live and organize their lives. But free speech – and by free we mean specifically free of government regulation – is paramount. Compared to other western democracies, the US stakes out an extreme position re the government’s power to regulate the content of speech. The Field Guide submits that the US gets it right on this issue – even if in some instances, the result is distasteful.

The Washington franchise has been stripped of its trademarks – this is entirely appropriate and was long overdue. But empowering the government to prevent the firm’s use of a racial slur as its team name; or to forbid its use of a racially inflammatory logo, would be a mistake. One must have faith that liberal values, given time enough, will be borne out – as they always have. Empowering the state to censor the speech of racists – even big racist firms – gives the cause of liberalism a small victory, at too dear a cost. It is nothing more than the majority silencing the expression of a minority it deems unworthy. Though the end may seem attractive, the means, when stripped down to its bare bones, are as ugly as ever.

Consider the best argument against the flag-burning amendment: A flag sheltered by threats to personal liberty can never be a symbol of liberty, and as such, is worthless. Likewise, when liberalism manipulates the apparatus of government to stifle expression it finds noxious, it destroys its core precepts: that the condition of individual liberty will ultimately lead our species to the best of all possible worlds; that given free exchange in the marketplace of ideas, the best ideas will ultimately prevail. Even when progress toward that end is sometimes too slow, empowering the government to pick winners and losers among ideas is itself the worst idea of all.




Note to Field Guide friends and readers: the hazy, crazy, lazy days of summer are upon us, and the Field Guide’s stalwart staff is not immune. CT has commanded a two (2(!)) week cessation of all LFG-related activities, to commence not later than sundown on Friday – encouraging all to use some vacay to nurture the liberal spirit, and if that fails, to drink till inebriation and dialogue members of the opposite (or same) sex till accession.

CT will remain at the home office to oversee the fine-tuning of our trusty LFG woodchipper – and while he’s left open the possibility of reposting hidden gems from the Field Guide’s dusky past, we will return in full freshness on Wednesday July 16th –





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