Constitution

Some Jobs Are More Equal Than Others

All professions deserve the same constitutional protections that speech-heavy industries get.

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Should your right to earn a living depend on whether your job is considered "speech"? Say you're a comedian. The First Amendment protects your jokes, funny or not, and it's very hard for the government to put you out of business. Now say you run a food truck. Where you can sell your meals is almost entirely at the mercy of your city council, even if it simply wants to protect your competitors. Why? Because the courts have decided that some rights are more important than others.

This unfortunate fact sits in the background of today's controversies over Big Tech. Everyone seems to hate social media companies and has plans to regulate them. But what the politicians aren't saying is that many of their proposed laws would be unconstitutional. That's because Big Tech makes money with speech.

Big Tech proposals abound. In the Texas legislature, there's a bill that would allow people to sue a social media company if it "discriminates" against them—in other words, suspends someone's account or deletes a post—because of their "viewpoint." Meanwhile, in Florida the governor and other lawmakers are encouraging legislation regulating social media in a variety of ways, including fines for deplatforming a candidate for office. Members of Congress have thrown around a host of other similar restrictions.

These proposals would force private parties like Facebook and Twitter to host speech they disagree with. But the courts have repeatedly said that the Constitution protects anyone's right—even a mega corporation's—to say or host (or not say or not host) any speech they please. The same would be true if you or I made a website—or published a newspaper (remember those?)—and only let people we agreed with contribute to it. (By the way, this has nothing to do with Section 230, a law protecting websites from some defamation lawsuits. Amending Section 230 won't change whether Facebook has a First Amendment right to refuse to allow people to make posts it doesn't want.)

On the other hand, a number of laws that are just as sinister are already on the books in every state. They don't regulate what we say, but what we do. For example, the pandemic has shone a light on certificate of need laws, protectionist licenses that limit how many of a given business can operate in an area. Prevalent in health care, they needlessly block the opening of additional clinics and hospitals, and even the purchase of medical equipment, giving existing competitors a veto. The only real purpose of these laws is to protect the profits of incumbent businesses. 

Another example is occupational licensing. States don't only mandate traditional licenses, like those for doctors and lawyers. They license everything from manicurists to hair braiders to painters. Louisiana even licenses florists. Licensing laws do very little to protect the public from these "dangerous" occupations, and instead force aspiring entrepreneurs to spend time and money on unnecessary schooling and tuition, raising prices for consumers in the process.

These barriers aren't driven by a need to preserve public health and safety, but by special interest lobbying to protect established practitioners from competition. Given that background, the courts will find them unconstitutional, right?

Unfortunately, no. Because entrepreneurs like manicurists, florists, and medical clinic operators don't "speak" to earn a living, they don't get the same protections as Facebook, Twitter, or comedians. Courts enforce the right to earn a living with an exceedingly light touch, giving the government all kinds of power to regulate even when the public interest is nowhere to be seen. That changes for a handful of rights, such as speech, that judges happen to favor. 

This distinction has no grounds in constitutional text or the American experience. The right to earn a living is a long-established right at the center of the American Dream. Choosing the occupation of your calling unshackles you from what others think is in your best interest and allows you to follow your passions while providing for your family. Untold numbers of immigrants have come here because of the opportunity that right brings them. 

None of this is to say that the courts should not protect free speech. They absolutely should. But they should stop picking and choosing the parts of the Constitution that they like, and instead protect our constitutional liberties across the board. Just because you happen to speak for a living shouldn't determine whether you're protected from grandstanding politicians.

NEXT: Josh Hawley’s Toxic Populism

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  2. That’s because Big Tech makes money with speech.
    Funny, their finance reports indicate they make money selling ads.

    But seriously, folks; where is the difference between Twitter not allowing Trump to speak, and a photographer not taking pictures of certain ceremonies?

    1. Or a baker exercising their 1st amendment right to not include speech with which they disagree on a cake they make?

      It seems like only speech from one side is constitutionally protected; the “wrong” side can get f*cked (and frequently does).

      1. Your freedom to work and speak and believe things only matters in our society if you’re a faggot, tranny, or nigger. It’s almost literally the law. Everyone else can go get fucked, fired, and cancelled.

        (Let this be a lesson about freedom)

        1. Thanks for proving what a bigot you are.

          Traitor

    2. The difference is that there are only two sides. Our side and the wrong side.

    3. They make selling other people’s speech. Further, Big Tech is property. There are obviously constitutional grounds to protect property but generally it ain’t the First and what IS protected under the First is generally person not property.

      I find it appalling that PEOPLE here are making a constitutional case that they themselves are equal to property (of someone else). They aren’t making a policy case – which I would agree with. They are making a constitutional case – for the purpose of stifling all possible response. What a fucking repugnant philosophy this is.

  3. What we really need is amendment to section 230 to broaden the speech protections to include everyone. Maybe the first in a series of such amendments. So that Congress can ensure the internet has those rights.

    God this magazine is fucking retarded.

    1. Ben Shapiro has recently described Section 230 as well intentioned legislation whose exceptions have eaten the rule. The intent was to allow limited moderation of outright illegal or prurient offensive material without it being seen as an endorsement of the user generated content that remained. Now it is a demand that even mildly controversial content that the mainstream disapproves of be eliminated.

      1. I think it was an ill-intentioned law that got a bright red-and-yellow ‘Good Intentions!’ sticker stuck on it. SCOTUS threw out the rolling scrap pile of a law and in a demonstration of their finite wisdom decided to keep the sticker.

        Some people look at the sticker and say “It’s a ‘good intentions!’ sticker, how can it be bad?” as a highly subjective moral/emotional judgement while others look at it more objectively as a lie that was used to sell a hunk of junk.

      2. The intent was to recognize that it is simply not practical to require websites to have the same editorial and moderation procedures as a traditional publisher. And nobody is using Section 230 to censor websites, how would that even be possible when S230 provides legal protection for content?

        1. The intent was to recognize that it is simply not practical to require websites to have the same editorial and moderation procedures as a traditional publisher.

          This is willful self-retardation. It’s *easier* for websites to publish content unmoderated than it is for print publishers. It’s *easier* for websites to edit and moderate content in real time than it is for broadcasters. What you’re saying is that it’s harder for website moderateors to craft narrative in real time. Which is/would be fiction.

          how would that even be possible when S230 provides legal protection for content?

          It’s called regulatory capture. Congress selectively protects preferred speech. This is why section 230 is a prima facia violation of the 1A. It creates speech that is more protected by Congress, which the 1A explicitly forbids.

  4. “Everyone seems to hate social media companies and has plans to regulate them.”

    It might help if the social media companies were not giving people reasons to hate them by seemingly politicized (acting under pressure of one major party’s official), arbitrary (unequal), unexplained (they do not inform the person being banned exactly how they broke a rule) enforcement of an ever shifting TOS rules. The social media companies have brought this climate upon themselves by their bad behavior.

    1. That’s true, but a right isn’t a right unless everyone enjoys it regardless of how big a scoundrel they are.

      Also, when a bar owner kicks a patron out, is he obligated to tell them exactly why he did so? If the drunk thinks the owner went overboard, then the drunk is free to never return. Same with social media sites.

      1. One of the provisions of Section 230 protections is that the platform must “act in good faith” when moderating, and they largely do not act in good faith. Explaining what rule was broken to the user would be an act of good faith.

        There are also many choices in bars. There is not much choice in social media, less so, when they act collusively

        1. Also, if you plunk down $20 for a drink at the bar and the bartender tosses you out on your ear and keeps your $20, you have every right to sue to get your $20 back.

          Not to mention that in many places, if a bartender lets you get blind stinking drunk and jump in your car, they can in fact get sued and/or lose their license.

    2. They did bring it upon themselves by creating a product that is as addictive to its users as crack cocaine. Tell a diehard Twitter user to just stop and see what kind of reaction you get.

    3. Nope. Repeal section 230. That’s a de facto regulation. What happens in the courts happens on a case by case basis, can be overturned at virtually any point and while it may serve as precedent it is not, in fact, at the lowest levels anyway, regulation.

      1. That’s a de facto regulation.

        Sorry, deregulation. Unless you can point to a law on the books regulating social media that S230 reverses, which S230 goes to great lengths not to do, repealing it is a deregulation.

        1. I’ll point to the state laws referenced in this article.

          1. So wht you’re saying is S230 is a shield or decoy for attacks against the commerce clause.

  5. “Because the courts have decided that some rights are more important than others.”

    Nope. The courts, and other agencies, continue to fight over whose rights are more important than those of others, not which types of rights have priority.

    And it has been this way since before humans. (If in doubt, watch how tribes of chimps or even hyenas behave, as they fight and posture over status and associated privilege.) Our tenuous social and political experiment in equality of rights for all people will probably fail (more) someday, since it contradicts biology.

  6. This article weirdly conflates federal government protection of civil rights with local government ordinances.

  7. Suppose you’re an artist. You make art from paint and canvas, or from clay, or from marble, or from found objects. Does the Constitution allow the government to tell you what art you can make, what art you can’t make, or what art you have to make?

    Of course not, even if you sell your art to collectors. You’re an artist. You have the right to make what you want, sell it if you want, or even to turn down commissions to make a particular form of art. Say you’re a sculptor, and a Trump supporter from Mississippi offers to pay you the going rate to make a statue of Robert E. Lee. You are free to turn her down, of course.

    Now suppose your artistic medium is wedding cakes.

    1. I believe that was the argument they won the case on.

      Do you know what they charge for those things? Damn well better be art. Or the caterer, florist band, or photographer could make the same argument.

      But it is a rather narrow bridge I think. What about other services?

      1. We are talking about customized and gig work. Any sort of contract work is/should be able to be freely rejected at the proposal stage. It makes sense that no discrimination can be used for a business selling a standardized product (with perhaps some reasonable accomodations.) One can reasonably expect a kosher deli to make you a sandwich on their menu regardless of your personal characteristics as long as you can pay. What you can’t expect is to get a ham sandwich piled with bacon at that shop. While maybe this isn’t an apples to apples comparison since one is, in part, a physical stocking issue; the product/service is not offered due to religious/personal preference of the business.
        Let’s flip this. If the baker would lose business after providing a gay wedding cake because the community is anti-homosexual, then is he not allowed to make such a choice on purely economic grounds? Likewise, should the baker have to produce NAZI imagery if the community would then boycott their products (or as we’ve seen with recent “protests” burn down the shop)?
        Companies are bowing to woke bullshit because they fear their bottom line. They make business decisions to cater to one set while actively pushing away another because the alternative is facing harsh media campaigns, boycotts, and potential property destruction. Even without considering the personal motovations behind whether a business owner would accept a contract, there are economic reasons and external ramifications behind such decisions.

  8. “All professions deserve the same constitutional protections that speech-heavy industries get.”

    I disagree . Some professions are involved in areas where constitutional rights are involved. Others are not.
    We should distinguish that from state regulation of the economy as in licensing.

    1. Some professions are involved in areas where constitutional rights are involved. Others are not.

      What profession takes place outside the bounds of free (dis)association?

      1. Trauma medicine.
        When two motorcycles crash, I take the best care I can of both the skinhead and the guy with the anarchist tattoos.
        Even though I can’t stand either of them.

    2. Nonsense, economic activity should be protected by rights too. All economic activity involves rights, ones that would have been well understood by our founding fathers – just because they weren’t specifically enumerated does not disparage them (see 9th amendment).

      All economic regulation which doesn’t prevent restrictions on economic activity (ie, the actual purpose of the commerce clause – for the federal government to stop the states from restricting trade) should be presumptively wrong and violating the rights of Americans.

  9. At least one profession I can think of (social work) is regulated by state boards that have ethical codes. The one I’ve seen has a section stating social workers “should” advocate at a social and political level for equal access for all people to employment and opportunity (and other things).
    I like the “we are all individuals and have human rights” part. The part that landed like a ton of bricks was, can a “social worker” advocate for the use of e-verify? Or is that equivalent to advocating for unequal access? And why should a state licensing board’s professional guidelines contain standards for the political involvement of licensees? Of course, it’s a complaint-based code, so if no one ever files a complaint on the behavior or actions of an individual social worker, that person can hold whatever beliefs and never get in trouble. However. The National Association of Social Workers’ code of ethics is taught in masters-level curriculum and I was actually surprised when I realized the NASW doesn’t issue licenses, they just advise the states that do, and every state has a licensing board and *probably* an NASW-derived code of ethics as well (I have not yet read them all.) Medical boards, licensing makes sense; to the extent that social work overlaps with psychology, it makes sense to license and regulate social work. Incompetent medical practice is a problem. But mission creep from preventing medical incompetence, to influencing political involvement, is significant. It seems to require a licensee to consider only the individual-level suffering present in a situation of social or political inequality. Or it certainly can be used to create that impression. “If you disagree politically, don’t be a social worker,” is the flip side of that impression; or, one has to ignore certain rules. Codes where you have to ignore part of it in order to do the job on a daily basis, need to be changed. I’d even buy into “social workers *may* advocate…” But “should” is a bridge too far.

    1. Could you give any examples where such conflicts are brought out?

    2. But mission creep from preventing medical incompetence, to influencing political involvement, is significant.

      Be ready for more of it. The American Psychiatric Association (which accredits therapy training programs) is adopting an SJW requirement.

  10. This is the second article I’ve read today calling social media companies “mega corporations”. I wish people would stop using that term. It conjures to mind omni-powerful conglomerates who exercise more control over society than the government. Even if those exist Facebook and Twitter wouldn’t be it. Disney, Google, Amazon, china’s national government; these are mega corporations.

  11. “Why? Because the courts have decided that some rights are more important than others“

    Those who wish to gain or maintain power over others want to be entitled to violate any rights anytime they want.

    We just witnessed the sitting president of the United States get canceled under the illegitimate pretence of impeachment. He and everyone who identified evidence of election fraud had their inalienable rights violated by the democrats and the media oligarchs they are in collusion with.

  12. Wow. That first paragraph is one hell of a false equivalency.

    Put your food truck where you like, but let’s not say that it’s speech.

  13. This distinction has no grounds in constitutional text

    As long as we ignore the First Amendment.

    Seriously, the courts don’t protect anyone’s right to earn a living from speech. They just protect their freedom of speech, whether or not money is involved. Since there isn’t an enumerated “right to braid hair”, they don’t protect the right to braid hair, whether or not there’s money involved.

    (Anyone yelling “the Ninth Amendment” has a decent point, but the vagueness gives courts lots of scope to ignore it.)

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  16. Let’s just get to the shootings and bombings already. Neither side is ever going to negotiate, the media has them brainwashed.
    My favorite thing about the Iraq war was touring the burned out, stripped out mansions of the wealthy. Saddam and his family had over 100 mansions, the US military used them for HQs.
    Wealthy Americans should really consider allowing the media to get the rubes hopped up on rhetoric. When a country goes to hell, the wealthy always get targeted first. The poor have nothing to lose. I can’t wait to tour Jack Dorsey and Zuckenweirdo’s houses after BLM and ANTIFA strip it in the name of reparations.

  17. The problem I have with article is with lines like this.”These proposals would force private parties like Facebook and Twitter to host speech they disagree with.” If this is such an abomination, then why is Reason apparently okay with a bakery in Colorado being forced to bake a wedding cake for a gay couple when homosexual behavior runs counter to religious belief of the baker? Both are protected under the First Amendment. One right is no less important than the other. If deplatformed and censored conservatives can simply “go elsewhere” or “build their own,” then the offended gay couple could just as easily gone to another bakery or “baked their own.” There are certainly a lot more bakeries than Twitters. The old saying is “sauce for the goose…” If liberals are going to force conservatives to do business with people they disagree with – despite their First Amendment rights – the why shouldn’t Twitter and Facebook be forced to do the same.

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