The Disciplinary Corporation, Redux

By Kevin D. Williamson

Sunday, January 17, 2021

 

Can you be fired from a job or denied service by a restaurant in retaliation for your opinion?

 

It depends on the opinion.

 

Some opinions are protected by American labor and civil-rights law. For example, “The employees of this business should organize a union” is an opinion the expression of which is generally protected by federal law, which prohibits employers from acting in such a way as “by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.” Other opinions enjoy protected status under civil-rights laws, e.g., “There is no God but Allah, and Muhammad is his messenger.”

 

Lawful actions taken to put those opinions into effect are generally protected as well, both in private life (as with religious worship) and in the workplace (as with union activism).

 

The protections given to such opinions and the actions associated with them are not, unlike the First Amendment, restrictions on government action, but on private action. This was (and is) a point of contention in regard to civil-rights law and, especially, the “public accommodations” doctrine, which strips from business owners what William Blackstone called the “sole and despotic dominion” over their own property. The practical rationale behind the public-accommodations doctrine may be problematic as a matter of libertarian principle, but its reasonableness as a response to real-world conditions is perfectly comprehensible. The de jure freedom and equality of black Americans was de facto a farce, because black people were unable to participate in ordinary life (including civic, political, and economic life) if unable to do such ordinary things as travel, work, rent or acquire real estate, or buy and sell in the marketplace.

 

“You can travel wherever you like, but don’t count on being able to buy gasoline for your car, eat, or rent a room in a hotel on your journey,” is not a slogan of freedom — it is a slogan of lightly reorganized oppression, with the work of oppressing mostly offloaded from the state onto private actors. As Potter Stewart put it while quoting the words of 13th Amendment author Lyman Trumbull: “Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom — freedom to ‘go and come at pleasure’ and to ‘buy and sell when they please’—would be left with ‘a mere paper guarantee’ if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man.”

 

Before I proceed, I want to make it clear here that my subsequent argument does not rest on the premise that the situation of contemporary conservatives vis-à-vis technology companies and the forces of “woke capital” is either morally or politically comparable to the situation of blacks in the Jim Crow South. In fact, my view runs in precisely the opposite direction — that the situation of black Americans was unique and was so extreme that the legal regime constructed to facilitate their integration into the mainstream of American life never should have been extended to other protected classes, including women and sexual minorities, who have had and continue to have legitimate and urgent complaints that, while considerable, nonetheless are in a category entirely distinct from the experience of black Americans from slavery through the present day.

 

At the same time, it is the case that we did not limit that principle to the situation of black Americans, and po-faced progressives who insist that, in excluding or sanctioning those with certain unpopular political views, Twitter et al. are simply acting as businessmen managing their own property as they see fit are being disingenuous.

 

It would be, I think, a mistake and unwarranted to stretch that model of civil-rights protection to even greater lengths so as to legally protect political orientation on social media the same way we protect sexual orientation in the federal workplace or in housing in New York. But there is some value in considering the real-world understanding behind the public-accommodations doctrine, workplace anti-discrimination laws, and the like: These limitations on the rights of property-owners were adopted because state oppression is not the only kind of oppression there is, and private actions that pass constitutional muster may nonetheless create objectionable burdens.

 

Take, for example, the recent meltdown over at Politico over my friend Ben Shapiro’s being asked to guest-write a newsletter. The people who wanted to exclude Shapiro, revenging his audacity in holding views at variance with their own, made arguments that were entirely unassailable and entirely immaterial: “He doesn’t have a right to a column in Politico! This isn’t a First Amendment issue!” No serious person thinks otherwise. But there is more to the debate over free speech, open exchange, and democratic discourse than the issue of official government censorship.

 

One question that was of intense interest to progressives until they became the predominating power in American corporations is: How much power do we want to give businesses over private life, including the private lives of their employees, particularly when it comes to political disputes and social controversies? Contrary to the progressive cartoon of conservative-libertarian thought, this question has been on right-wing minds for a long time. William F. Buckley Jr. famously pledged: “I will not willingly cede more power to anyone, not to the state, not to General Motors, not to the CIO.” The current conservative answer is, approximately: “Businesses should be able to do whatever they want, as long as I approve of it, and as long as there are no Mexicans or Chinese involved.” Which is, of course, no answer — par for the conservative course circa 2021 Anno Domini.

 

The current progressive answer to the same question is: unlimited power.

 

That is the policy of the single-serving libertarians who believe, for the moment, that unlimited corporate power in this particular theater serves their own political interests. It is comforting to have corporate power on your side: A few weeks before firing me, the editor of The Atlantic invited me to a panel at South by Southwest on which various posturing social-justice-grievance entrepreneurs moaned about their marginalization—at a forum sponsored by Google, PepsiCo, AT&T, NBCUniversal, Facebook, UBS, JPMorgan Chase, and Deloitte.

 

Of course, it’s all Calvinball: If a baker in Colorado wants to turn away a customer, our friends on the left will make a literal federal case out of it; if Facebook wants to turn away a customer — or attempt to hobble the operations of the nation’s oldest continuously published daily newspaper for obvious partisan political reasons — then that’s another story altogether. You will have the metaphysics of Google, PepsiCo, AT&T, NBCUniversal, Facebook, UBS, JPMorgan Chase, and Deloitte, and you will like it. You can tell yourself a legal story in which that is perfectly justified, which is why legal stories mean so little to thinking people.

 

(Both of us.)

 

Twitter is not as important as Jack Dorsey and the media figures who adore it believe it to be, and it is not half as important as Donald Trump believes it to be. As a purely legal matter, it has the right to ban Donald Trump or anybody else it chooses to. As a purely legal matter, American book publishers have the absolute right to reject books from controversial figures and people with unpopular opinions. As a purely legal matter, the New York Times and Harvard can, with perhaps a few narrowly circumscribed exceptions, command all kinds of intellectual, political, and moral homogeneity from those associated with them. Dillard’s may get dragged into court for “discriminatory surveillance of customers,” but Google probably won’t. None of that raises any serious First Amendment questions. The First Amendment is critical. But First Amendment questions are not the only kind of question. As a matter of law, the persecution of homosexuals and political radicals in Hollywood in another era was entirely permissible.

 

My own view is that excessively narrow-minded editors and publishers invariably descend into tediousness and philistinism, and that their institutions eventually become disabled from intellectual arthritis. Often, this has been met with market innovation: The narrowness and conformism of the postwar American press gave rise to such alternatives as Playboy (founded 1953) and Rolling Stone (founded 1967), which became literary homes of many of the most vital writers of midcentury America. Fahrenheit 451 was almost entirely unread until it was serialized in Playboy, which also published Roald Dahl, Norman Mailer, and Vladimir Nabokov, all of whom faced various kinds of censorship efforts over the years, and all of whom have been denounced, at times, as indecent. Admirers of the feminist writer Margaret Atwood may be surprised to learn that many of her early works appeared in Playboy, while Rolling Stone’s hippie ethic somehow accommodated Tom Wolfe and P. J. O’Rourke. The Village Voice and National Review were founded within weeks and walking distance of each other in 1955, two very different reactions to the same enforced homogeneity.

 

Social media itself represents a similar kind of reaction against the broad stylistic homogeneity (and standardized spelling, grammar, etc.) of professionally edited mass-market media — the top conservative magazines and the top left-wing magazines resemble one another more than they resemble the kind of discourse that one can consume on Facebook.

 

(Pity the poor rage-monkeys on Facebook.)

 

From at least the (entirely lawful) execution of Socrates on charges of impiety to our own time, public and private suppression of unpopular beliefs and identities has been presented the way Facebook presents it: as a question of community safety. This was particularly true of the persecution of homosexuals and radicals in the 20th-century United States, with the suppressors arguing that the nation at large would be put at serious risk if sexual deviants were allowed to star in movies, thereby giving the impression that we approve of that sort of thing. (The rhetoric of homosexuality as contagion was as common in the 1950s as Wonder Bread.) But it also was true of anti-Catholic laws and censorship in Great Britain and colonial America, as well as anti-dissident censorship more broadly in both the Protestant and Catholic countries. Similar arguments are made by Hindu nationalists in India who today advocate restricting the rights of Muslims and Christians. Public safety was the cited concern in 1980s efforts to censor and marginalize various kinds of popular music that were not pleasing to the ear of Tipper Gore and her ilk, millennial campaigns against video games such as Grand Theft Auto, etc. The Apostle Paul was hauled before judgment on those grounds at Areopagus, and John Milton challenged such intellectual bondage in his Areopagitica. Milton’s classic defense — that grappling with falsehood is the path to truth — is entirely relevant to our own time:

 

Errors, known, read, and collated, are of main service & assistance toward the speedy attainment of what is truest. I conceive therefore, that when God did enlarge the universall diet of mans body, saving ever the rules of temperance, he then also, as before, left arbitrary the dyeting and repasting of our minds; as wherein every mature man might have to exercise his owne leading capacity.

 

I have a difficult time accepting the premise that there is a matter of urgent national security, much less one of high principle, at stake in the frenzied effort to get sad Trumpkin knuckleheads, Flat Earthers, and QAnon lunatics (but I repeat myself) dismissed from their jobs at burrito shops, or to turn away an incoming college freshman for having said the verboten word when she was 14 years old. And that is the underappreciated part of the story: Ban Donald Trump from Twitter, and he is not going to have any trouble communicating with the public beyond the fact that he cannot form a complete sentence unaided. Fire me from the Atlantic, and I’ll write about it in the Wall Street Journal. Josh Hawley has lost a publisher, but his insipid impressions will no doubt find their way into print, if he wants them to. More serious is the situation of ordinary citizens attempting to participate, in the way most convenient to them, in the conversation of American democracy — while having to remain vigilant in ensuring that their employers, from Google to Starbucks, aren’t looking over their shoulders. “Accountability,” our progressive friends call it. Revenge is the more accurate word, a kind of soft social terrorism.

 

The recruitment of corporations as the enforcers of political discipline is the avant-garde progressive project of the moment. Our friends on the left are too greedy, too stupid, and too short-sighted to understand that at some point in the future this very likely will be turned against them, and against vulnerable social minorities to whom they are sympathetic, as it is elsewhere in the world today and as it has been in the past here in the United States. There isn’t anything unconstitutional about Alexandria Ocasio-Cortez’s blacklist. There wasn’t anything unconstitutional about Senator McCarthy’s blacklist, either.

 

Perhaps it will occur to some of these worthies, someday, that that isn’t nearly good enough — that the practice of liberty in the world involves more than the question of that which is permissible under statute and that which is formally forbidden.