Shielded by section 230 of the Communications Decency Act, Big Tech actors like Google, Apple, Facebook, and Twitter, among others, have been demonetizing, censoring, and banning conservative voices on the internet. Despite President Trump’s occupying the White House and Republican control of the Senate for the past four years, section 230 has survived unchanged, and the right continues to suffer from political viewpoint-based discrimination that is only likely to worsen under a Biden administration.

Since changing section 230 will be even more difficult with a Democrat President, Senate, and House, some have proposed a state-level approach. The idea would be for states with Republican governors and state legislatures to enact laws prohibiting political viewpoint-based discrimination, elevating political viewpoint to the same status as race, religion, sex, age, and disability as illegal bases for discrimination. While this approach may be promising, I am not a lawyer, and I have concerns that such state legislation might run afoul of the constitution’s commerce clause.

There exists another approach to fighting political viewpoint-based discrimination that does not require new federal legislation, and is based upon established antidiscrimination law, namely, that Big Tech companies which engage in political viewpoint-based discrimination should be subject to lawsuit for violating the Americans with Disabilities Act (ADA).

While there is no ironclad relationship between personality and political views, there does seem to be a correlation between certain elements of personality and political viewpoint. This relationship can be detected as early as age 3. A 2005 publication by Block and Block from UC Berkely (https://www.berkeley.edu/news/media/releases/2006/03/block.pdfdescribed 128 3-year old nursery school students from the Berkeley area. Each child was evaluated following 7 months of observation by experienced nursery school teachers, with findings encoded into the CCQ, a tool for describing children’s personality, cognitive, and social characteristics. The following year, each child was again evaluated using the same criteria by three additional, independent observers. Twenty years later, as young adults at age 23, 104 of the original subjects were assessed, and data were available for 98. The young adult assessment included self assessment on a 5-point scale from very liberal to very conservative, agreement on 10 issues distinguishing the Democrat from Republican parties, McCloskey’s Dimensions of Political Tolerance scale, the Kerlinger Liberalism Scale, the Kerlinger Conservatism Scale, questions about political activism, and the Political Activism Scale. The results showed that trained observers’ assessments of the personalities of nursery school children correlated with these same subjects’ political views 20 years later. The psychological processes that affect political viewpoint are fundamental enough to be identified in pre-schoolers and to persist for at least 20 years.

These differences in political viewpoint appear to reflect neuroanatomic differences. A 2011 report by Kanai and colleagues from University College – London (https://www.cell.com/action/showPdf?pii=S0960-9822%2811%2900289-2) described 90 university students who were asked to self-identify on a 5-point scale from very liberal to very conservative, and then to undergo structural MR brain imaging. They found that increased gray matter volume in the anterior cingulate cortex correlated with liberalism, while increased gray matter volume in the right amygdala correlated with conservatism, and were able to replicate their findings on an additional sample of 28 persons. The investigators also found that with only these two measurements, they could predict whether a student was “very liberal” or “conservative” (there were no students who self identified as “very conservative”) with 72% accuracy.

Not only are there neuroanatomical differences between liberals and conservatives, there also appear to be differences in brain chemistry, as well. A 2015 report by Ebstein and colleagues from the National University of Singapore  (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4632631/examined 1,771 Han Chinese university students in Singapore. Political attitudes were measured by self assessment on a 5-point scale from very liberal to very conservative. DNA samples were taken from each particpant, and using PCR, the number of exon III tandem repeats of the dopamine D4 receptor (DRD4) were analyzed. The investigators found a significant correlation between DRD4 genotype and self reported political viewpoint, particularly in female students.

Finally, Bouchard and colleagues (https://www.theatlantic.com/politics/archive/2013/10/can-your-genes-predict-whether-youll-be-a-conservative-or-a-liberal/280677/ used the Minnesota Twin Study dataset to identify 1,400 monozygotic and fraternal twin pairs raised together in the same home, as well as 88 monozygotic pairs and 44 fraternal pairs raised apart, who were asked to take the Right Wing Authoritarianism political orientation test. Twins raised apart were typically separated at ~6 months of age. While there was a high correlation between the responses of both monozygotic and fraternal twin pairs raised together in the same home, there was no correlation between the responses of fraternal twin pairs raised apart, while the responses of monozygotic twins raised apart correlated as strongly as those of monozygotic twins raised together, implying that political orientation was heritable. In fact, many researchers have estimated the heritability of political viewpoint at ~40-50%.

The correlation between personality as assessed at age 3 and political views 20 years later, the correlation of political viewpoint with neuroanatomy and dopamine receptor genes, and the data from the Minnesota Twin Study dataset, all imply that there exist fundamental, and likely heritable, differences in certain brain function between liberals and conservatives. Since political viewpoint appears to be an inherent component of one’s neuropsychologic makeup, there is a strong argument that political viewpoint discrimination represents a violation of the Americans with Disabilities Act.

Some conservatives may bristle at the idea of being labeled “disabled.” I sympathize with this view. However, consider Attention Deficit/Hyperactivity Disorder (ADHD). Students with ADHD are routinely granted additional time to complete standardized tests like the SAT, MCAT, and LSAT on the basis of the ADA, and yet, people with ADHD can be particularly energetic, creative, and hyperfocused – a benefit in some settings – and most lead happy, successful,and productive lives. Should such individuals be considered disabled, or are they more accurately described as “differently abled?” Consider the Deaf culture among people who cannot hear. Such individuals do not consider themselves disabled, but rather consider themselves members of a distinct culture with its own language, literature and art, and customs, and yet they, too, enjoy protection under the ADA. Based upon the information above, could not individuals with a conservative viewpoint be considered to be in a similar situation, and nowadays subject to even more invidious discrimination than individuals who cannot hear or those with ADHD?

Some might argue that the evidence for a genetic predisposition to a conservative viewpoint is weak – after all, nobody has identified a “conservative gene.” However, nobody has identified a “gay gene,” and yet the left endorses affording homosexuals civil rights protections. Others might argue that the anatomic and biochemical changes described above might be result of, rather than the cause of conservative beliefs – in other words, those darned conservatives brought this on themselves. While the DNA-level findings and measurable differences dating back to early childhood argue against this, suppose it were true? Is an individual who is paraplegic as a result of a motor vehicle accident that he caused while driving drunk entitled to less protection under the ADA than an individual who has been paraplegic from birth due to spina bifida? Not to my knowledge.

I would love to see section 230 amended so that it no longer shielded Big Tech’s political viewpoint-based discrimination from redress. I also wish success to state level legislation to prohibit viewpoint-based discrimination, although this would leave individuals in other states without such laws still unprotected. An ADA-based approach would prevent political viewpoint-based discrimination on a national level, without the need for additional legislation. Furthermore, while amending section 230 would address political viewpoint-based discrimination on the part of Big Tech, it would not affect political viewpoint-based discrimination by educational institutions, financial institutions, or employers. An ADA-based approach to political viewpoint-based discrimination would address discrimination in these settings as well, and indeed in any setting subject to the ADA.

— Winston Smith

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