In 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
Although 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.
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.