The Supreme Court's "Citizens United" Decision Threatens the 1964 Civil Rights Act

Submitted by Brendan Fischer on

DiscriminationIn Glenn Beck's "Restoring Honor" rally last week, held on the anniversary of Martin Luther King Jr.'s 1963 "I Have a Dream" speech, Beck claimed that he and his Tea Party followers would "take back the civil rights movement." While King's speech led Congress to pass the landmark 1964 Civil Rights Act, Beck's movement could lead to that Act's abolishment. Although Beck has not publicly called for overturning the 20th century's greatest piece of equality-advancing legislation, the libertarian philosophy he espouses is at odds with the way the 1964 Civil Rights Act prohibits discrimination by private businesses. While Beck did not clearly state how he would reclaim the civil rights movement (he asserted that his rally was nonpolitical and aimed at "restoring America's traditional values") other leading libertarian right-wingers have called for abolishing some of the Act's most important elements, saying they constitute unnecessary government interference with the market. While undoing the Civil Rights Act through political channels would be almost impossible, the U.S. Supreme Court may have granted the right-wing a means to do so through the judiciary. The Court's reasoning in its January 2009 Citizens United decision could put some of the most important parts of the Civil Rights Act at risk.

How "Citizens United" Threatens the 1964 Civil Rights Act

In Citizens United, the Court ruled that corporations are "legal persons" entitled to constitutional protections, including the same freedoms of expression and speech the First Amendment protects for individuals. While the Citizens United decision only considered free speech in the form of political campaign spending, because our legal system relies on precedent the reasoning can (and will) be applied in a variety of contexts -- including challenges to the 1964 Civil Rights Act.

The First Amendment protects an individual person's right to "free expression," which includes the right to think discriminatory thoughts, use prejudiced words, print bigoted literature, and refuse to admit certain types of persons onto their private property. While there are some limits on the First Amendment's protection -- these forms of expression cannot incite actual violence, for example -- an individual person's freedom of discriminatory expression is protected under the Constitution.

While the 1964 Civil Rights Act doesn't attempt to regulate an individual person's biases or discriminatory words, it does prevent businesses from freely expressing themselves in a discriminatory fashion. Section 201, the so-called "public accommodations" section of the Act, states that: "[a]ll persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation . . . without discrimination or segregation on the ground of race, color, religion, or national origin."

Under the Act, a "place of public accommodation" is any business or building that offers services to the general public. Although incorporated businesses are "legal persons" for purposes of certain lawsuits and for tax purposes, this section of the Civil Rights Act has not been held to interfere with the First Amendment because businesses have traditionally not been entitled to the same free speech rights as individual persons.

The Citizens United decision broke from tradition, though, and found that because corporations are "legal persons," they are entitled to the First Amendment's protections. This may have serious implications for the 1964 Civil Rights Act. A future court could easily apply the Citizens United precedent to find that the public accommodations section of the Act unconstitutionally limits a "corporate person's" free expression right to discriminate.

The Libertarian Argument Against the 1964 Civil Right Act

Lyndon Johnson signs the 1964 Civil Rights ActAlthough it may seem difficult to believe that such an important piece of legislation could ever be overturned, a legal challenge to the 1964 Civil Rights Act that relies upon the Citizens United precedent is a very real threat. In addition to Beck's call for the right to "reclaim the civil rights movement," leading right-wingers like Fox News' John Stossel and Kentucky's Republican Senatorial candidate Rand Paul -- both libertarians -- have recently called for repealing the public accommodations section of the Civil Rights Act. They claim that governmental interference with business activities is unduly burdensome on the economy, and were defended in major publications by fellow libertarians. The libertarian economic philosophy has become popular as of late (particularly among the Tea Party), and adherents to this ideology are not necessarily fueled by racism -- they simply believe that the "market" will guarantee a free and equal society. Although libertarians believe private businesses should be permitted to discriminate without legal repercussions, they also claim that businesses will be deterred from such discrimination because they would fear boycotts. As Stossel stated, the public accommodations section is unnecessary because he believes "the free market competition would have cleaned the clocks of the people who didn't serve most customers."

Although we won't accuse strict libertarians of racism, we will indict them for naiveté.

The problem with a market-based system is that it allows persons to pay a premium for a segregated setting. In the housing context, for example, whites move to higher-priced suburbs as the people of color population increases in their community (the "white flight" phenomenon). Then, this segregation is maintained through restrictive covenants or the free market practice of "redlining," where residents of color are charged more for services such as banking and insurance, and denied access to credit and employment. Not only are such practices difficult to reveal, it would be difficult to organize a boycott against the only bank in town (especially if a person needed to borrow).

The free market hardly fixed racial discrimination prior to 1964. While the 1964 Civil Rights Act hasn't corrected racism and cannot remedy less overt forms of discrimination, it remains important by offering a legal means to counter discrimination where the market cannot. While the struggle for equality continues, the Act's legal prohibition on discrimination remains a powerful tool for advancing equality and promoting greater societal integration.

Take Action!

Libertarian right-wingers are motivated to overturn the 1964 Civil Rights Act, and the U.S. Supreme Court's Citizens United decision may give them the tools to do so. The Act must be maintained in the face of the threat posed by the Citizens United precedent. Visit www.movetoamend.org to learn more about the threat of "corporate personhood" and join the campaign to legalize democracy.

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Comments

Slashdot user t... replied on

At first glance, the libertarian position makes sense. Why should a sandwich shop owner, for example, be forced to serve people with red hair? It is arbitrary and rude for that shop owner to do that, but does society have a right to force the issue? Of course it does, because the shop owner is a benefits from the labor of the red head and society can force the shop owner to respect that effort. Independence and self sufficiency are fine things, say most libertarians, so the shop owner should be granted the same kind of exile they would arbitrarily impose on other people. Let the shop owner discriminate if the shop can do without city and state roads, electricity, telecommunications and all of the other goods and services that it makes sense for society to collectively share. That will place the sandwich shop somewhere in the middle of the woods with the best services the owner can provide for themselves but they are still not free unless they manage to only use supplies provided by other businesses that work the way theirs does. At this point, it should be clear that businesses are inherently collective activities and are not like real people. Anti-social business is not something a civil society should tolerate. Discrimination creates a kind of virtual slavery, where the victims are stripped of the fruits of their labor for the benefit of those who have singled them out.

Eyemakeupneeded replied on

I believe your analysis is far-fetched. I am old enough to have lived during the Civil Rights movement and fortunate enough to have become personally acquainted with the individuals responsible for the passage of the Civil Rights Act of 1964. Businesses have found that discrimination is costly, especially law firms who have hired and promoted outstanding law review graduates among people of color who have become partners in these firms. Had it not been for the climate of affirmative action promoted by the Civil Rights Act, Clarence Thomas himself, Elena Kagan and other women and minority group Supreme Court Justices would not have been appointed. Whatever their personal philosophy, these justices understand, unless they are arrogant beyond redemption, that but for the climate of love for all other humans engendered by Christian leaders such as the Reverend Martin Luther King, Jr., they would truly never have been appointed to the U.S. Supreme Court. If one believes that Americans are basically intolerant and without love in their hearts for all other human beings, and stripped of all pragmatic common sense, then one could believe in this blogsite's analysis of the destruction of the Civil Rights Act through Citizens United. Right now, unlike Germany, it is not illegal to be a Nazi. David Duke was a Nazi serving in a state legislature. The ACLU itself supported the right of Nazis to march in Skokie, Illinois, in a neighborhood of predominantly Jewish residents. Unless a David Duke becomes president of the United States, do we have much to worry about? I think not. Corporations by their overwhelming economic power can broadcast messages of hate but it is only governments that can uphold and compel its employees to carry out the message of hatred, as we have seen in the recent Appeals Court decision upholding the practice of torture and extraordinary rendition. I don't know what the Libertarians want, but we do need a third party that does not pay lip service to the Constitution's right of free speech, then do whatever it wants to do, including condoning and spearheading the practice of torturing prisoners. We need a government that carries out the spirit of the Constitution. We need a party that is responsive to the majority of voters and sensitive and protective of the rights of minority groups as well as minority opinions. I no more want to silence Ron Paul than I want to silence Alan Grayson. In fact, I recently learned that the two of them were sponsoring a bill together. I want to see a nation brought together in this way. As far as I am concerned, there is great value in what Ron Paul says and there is great value in what Alan Grayson says. I want an America that brings all of us together, not for the sake of political power, but, as our first national president for civil rights has pointed out about the nature of political truth, for the good of the people, all of the people, all of the time. I don't want a government good for some of the people some of the time or good for all of the people some of the time. I think that's what we all want. If you recall, the same president said, "A nation divided against itself cannot stand."

brothermartin replied on

I share your sentiments...that's why i've joined the Green Party. We're growing, mostly at the grassroots level so far, winning a lot of city- and county-wide races, just starting to get into state legislatures. I could not in good conscience remain a Democrat. The Green Party is much more responsive to its membership, and espouses the values you value. Thanks for the encouraging words~

freefall replied on

This whole discussion is a farce. More manipulation by the media to shape what the public thinks the public opinion is. The article states that "our legal system relies on precedent" without mentioning that the "Citizens United" decision was handed down by the supreme court DESPITE all the precedent against it. So to now use THAT unlawful decision as precedent to overturn the civil rights act would defy any semblance of intelligence. That's why you should consider the source FOX and its' band of criminals, propagandists, and fascists. What I would like to see is the "tea party", its' paid members and controllers march somewhere and get the dogs let loose on them and then see them getting beat down by the police before they talk any more about civil rights. Oh and lets see the traitors from the supreme court join them.

Anonymous replied on

comparing the "tea baggers" with libertarians and calling libertarians "right wing" is not only narrow-minded..but totally false...libertarians don't have a left or right...only liberty matters...that said the civil rights act was a huge mistake...by the way I'm of african descent...the act should be repealed..affirmative action is nonsense..private business' should only hire the best person for the job..not hire based on skin color or because the employees are all white..black..etc..this also holds true with smoking bans...its just another veiled attempt of the government meddling in affairs it has no business in nor the constitutional authority...