WHEN A BUSINESS RESTRICTS WHO it will do business with on the basis of the content of goods and services. Such as what the idiot bluenoses at PayPal are attempting with their ban on funds transfer relating to erotica. They reason that the First Amendment is a proscription lain solely on Congress (and not even on other agencies of the Federal State, let alone the United States or municipal governments — or private actors) and therefor nobody but Congress — or agencies empowered by laws passed in Congress — can engage in censorship. It’s censorship when the Army cuts your letters home to ribbons, but not when a private business refuses to sell a DVD of Behind the Green Door.
But I say, “Nazzo fast, Guido!”
The Constitution is a charter of limits on the Federal Government. It does not pretend to be an exhaustive list of all of the protected rights of the citizen. In fact, the Framers — and those who understand this subject more than a little — would argue that, since rights descend from God, no charter of government can possibly list them all, or place any reasonable limits on their free exercise — with the one proviso that no right can include the right to initiate harm to others.
But PayPal, as a business, is vulnerable to antitrust provisions (to the extent that those laws themselves are not unconstitutional). And, due to the nature of its business, it must act as a common carrier, and accept all comers who can pay the freight. (I argue this is also the case for internet service providers, which would imply that they cannot act as content cops — the bluenoses’ current death grip on power notwithstanding.) And, as such, their discrimination is invidious, is, indeed, a violation of civil rights — without regard to those rights’ being enshrined or protected explicitly under the constitution. The right of free expression, as it inheres to the individual must be inviolate. The First Amendment to the Constitution enshrines that principle, even though it only bears a writ pertaining to Congress. It therefor follows, as the light of morning burns off a predawn fog, that no actor may vitiate the right, and that those attempting should bear not only society’s opprobrium, but that of the state as well — as agent for the People, in defense of liberty.
If smart lawyers can’t see a solution to this already extant in statutes, then perhaps one ought to be encoded. As “there ought to be a…” laws go, it’s less odious than most.