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Published online by Cambridge University Press: 13 January 2009
American liberals believe that both civil liberties and civil rights are harmonious aspects of a basic commitment to human rights. But recently these two clusters of values have seemed increasingly to conflict – as, for example, with the feminist claim that the legal toleration of pornography, long a goal sought by civil libertarians, actually violates civil rights as a form of sex discrimination.
Here I propose an interpretation of the conflict of civil rights and civil liberties in its latest manifestation: the controversy over how to treat discriminatory verbal harassment on American campuses. I was involved with the controversy in a practical way at Stanford, where I helped draft a harassment regulation that was recently adopted by the university.
Like the pornography issue, the harassment problem illustrates the element of paradox in the conflict of civil-liberties and civil-rights perspectives or mentalities. This problem does not simply trigger familiar disagreements between liberals of a classical or libertarian orientation as against those of a welfare state or social democratic one – though it does sometimes do that. In my experience, the issue also has the power to appear to a single person in different shapes and suggest different solutions as it oscillates between being framed in civil-liberties and in civil-rights terms. At the same time, however, it remains recognizably the same problem. It is thus a very practical and political example of the kind of tension noted by Wittgenstein in the aphorism that heads this essay – a puzzle of interpretive framing, of “seeing-as.”
1 Wingenstein, Ludwig, Philosophical Investigations 196e (New York: Macmillan, 1958).Google Scholar
2 United States v. Eichman, 110 S. Ct. 2404, 2410 (1990).
3 Brown v. Board of Education, 347 U.S. 483, 494 (1954).
4 Bohen v. City of East Chicago, 799 F.2d 1180, 1189–90 (7th Cir., 1986) (concurring opinion).
4 Ibid.
6 Strauder v. West Virginia, 100 U.S. (10 Otto) 303, 308 (1880).
7 See Brest, Paul, “Foreword: In Defense of the Antidiscrimination Principle,” Harvard Law Review, vol. 90 (1976), p. 1.CrossRefGoogle Scholar
8 I will often make the oversimplifying assumption that all these forms of discrimination can and should be treated the same. Each form of insult has its own unique features and problems, however, and may ultimately generate its own distinct body of legal doctrine, as does each form of discrimination recognized as “invidious” under equal protection law and civil rights statutes. I will, moreover, put discrimination against gays and lesbians in with the rest, though it has not yet been recognized as invidious under federal constitutional law. A number of state and local civil rights laws, and the anti-discrimination policies of many public and private institutions (including Stanford) do prohibit sexual-preference discrimination, as in my view all should.
9 Time, May 23, 1989, p. 89.
10 I was faculty co-chair of the campus judicial council at Stanford when this incident occurred; no disciplinary charges were ultimately brought. Thereafter I worked on the drafting of a disciplinary standard to deal with racial harassment, which was adopted by the campus legislative body and became effective in June of 1990. The Beethoven incident is treated eloquently, strictly from a civil-rights perspective, in Williams, Patricia, “The Obliging Shell: An Informal Essay on Formal Equal Opportunity,” Michigan Law Review, vol. 87 (1989), pp. 2128, 2133–37.CrossRefGoogle Scholar
11 The applicable legal provisions are (for most private employers) Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against employees on the basis of race or sex in the “terms or conditions of employment,” and (for public employers) the Fourteenth Amendment's requirement that no state may “deny to any person the equal protection of the laws,” which has been construed to prohibit race and sex discrimination in public employment.
12 Bohen v. East Chicago, p. 1191. Judge Posner alternatively analyzed the employer's inaction as analogous to a selective withdrawal of protection, as if a government denied police protection to blacks, or failed to punish rapes alone among violent crimes.
13 In sex discrimination cases under Title VII, the courts distinguish between “quid pro quo” harassment (efforts to extract sexual favors in return for job retention or promotion) and “hostile environment” harassment of the kind described in the text. Racial harassment takes only the latter form. The Supreme Court recognized hostile environment sexual harassment as a Title VII violation in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). On hostile environment discrimination, see Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971) (“sustained pattern of harassment”); Bundy v. Jackson, 641 F.2d 934 (D. C. Cir. 1981), and Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982) (sexual harassment cases involving mixed quid pro quo and pure verbal harassment incidents); Erebia v. Chrysler Plastics, 722 F.2d 1250 (6th Cir. 1985); EEOC v. Murphy Motor Freight Lines, 488 F. Supp 381 (D. Minn. 1980) (employer failure to take action against racist insults of black employee by fellow workers held unlawful discrimination).
14 As with public employers, the Fourteenth Amendment prohibits public universities from discriminating on the basis of race or sex in providing educational services. Private universities receiving federal grants are subject to similar prohibitions under Title IX of the Civil Rights Act of 1964. In some states, statutes also prohibit discriminatory practices by private universities. Finally, most private universities in the United States have committed themselves to non-discrimination policies, which may give rise to contractual liability when a student can show discrimination that would be unlawful for a public university.
15 Indeed it was evidently drafted on the model of the Equal Employment Opportunity Commission guidelines, which define sexual harassment to include “verbal or physical conduct of a sexual nature” that “has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.” 29 CFR §1604.11(a).
16 Doe v. University of Michigan, 721 F. Supp. 852 (E. D. Mich. 1989). See 856 for the text of the regulations.
17 Doe v. Michigan, p. 858. The Guide went on to warn students that “YOU are a harasser when… You comment in a derogatory way about a… group's… cultural origins, or religious beliefs” — a very sweeping restriction on the discussion of history and current events. Might not screening The Last Temptation of Christ or selling The Satanic Verses count as “derogatory comment” on a “group's religious beliefs”?
18 Under the University of Michigan regulation, a social work student was in fact prosecuted for expressing the view that homosexuality was a disease, for which he hoped to develop a counseling plan in a research class; Doe v. Michigan, p. 865. The other two statements propound views that I trust my readers will admit are widely held, or at least entertained, if relatively rarely expressed, on American campuses.
19 For example, a student who had recited a homophobic limerick in class plea-bargained the dropping of a charge against him under the Michigan regulations in return for a classroom apology, a letter of apology to the campus paper, and attendance at a “gay rap session;” Doe v. University of Michigan, p. 865. It has become a commonplace among civil-libertarian opponents of verbal harassment regulation to stress the utility of “education” (rather than disciplinary rules) as a remedy for campus discrimination, generally without much serious attention to the question o f what such “education” may entail. In my own view, the worst of both worlds is achieved when multicultural sensitivity training (valuable as it can be when done well) is imposed as a penal sanction for harassment. I would sharply separate punishment of harassment (which should be confined to cases of intentional wrongdoing) from orientation efforts aimed at acquainting students and others with the diverse cultural backgrounds, expectations, and sensitivities they are likely to meet in the contemporary university.
20 The plaintiff in the Michigan case was a psychology graduate student working on the biological basis of differences in personality traits and mental abilities. He alleged, quite plausibly, that certain theories in his field could be perceived as sexist or racist, so that their discussion might be sanctionable under the policy. Doe v. Michigan, p. 858.
21 An excellent and often-cited doctrinal analysis, distinguishing the key terms of art's “communicative impact,” “content,” and “viewpoint,” is Stone, Geoffrey, “Content Regulation and the First Amendment,” William and Mary Law Review, vol. 25 (1983), p. 189.Google Scholar
22 Hustler Magazine v. Falwell, 108 S. Ct. 876, 87 9 (1988); compare Gertz v. Robert Welch, 418 U.S. 323, 339 (1974).
23 West Virginia State Board of Education v. Bamette, 319 U.S. 624, 643 (1943). Compare Texas v. Johnson, 109 S. Ct. 2533, 2544: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea because society finds the idea itself offensive or disagreeable.”
24 Whitney v. California, 274 U. S. 357, 377 (1927).
25 The moderate view is especially well articulated, by a present General Counsel of the ACLU, in Nadine Strossen, “Regulating Campus Speech: A Modest Proposal,” Duke Law Journal, p. 483. Strossen, like other moderates, is more skeptical of the “fighting words” than of the “emotional distress” rationale. The purist view is inferrable from Haiman, Franklyn, Speech and Law in a Free Society (Chicago: University of Chicago, 1981).Google Scholar Haiman altogether rejects the “insulting or fighting words” doctrine, (pp. 132–35, 256–59); he would confine sanctions for verbal infliction of emotional distress to cases of injury through intentional factual misrepresentation (pp. 148–56).
26 It has been my personal experience in debating this issue with colleagues and students that few causes attract more powerful emotional adherence than does First Amendment absolutism. I make the point not to disparage this aspect of their commitment, but because civil libertarians frequently pose the verbal harassment issue (typically with analogy to the flag-burning issue) as a clash between “reason” on their side and “emotion” on the other. On the other side, not a few civil-rights egalitarians take up the same binary opposition between “reason” and “passion” and turn it around to accuse free speech defenders of the moral defect of cerebral and unfeeling elitism.
27 Incommensurable conflicts are, roughly, those we have to resolve in the absence of a satisfactory determining norm (substantive rule, agreed procedure, or common metric). They are not contradictions and need not be resolved “irrationally.” A good discussion of value-incommensurability in the context of individual action can be found in Raz, Joseph, The Morality of Freedom, 321–66 (Oxford: Clarendon Press, 1986).Google Scholar
28 Wittgenstein, Philosophical Investigations, p. 194.
29 The text of the Stanford regulation is given in the Appendix.
30 One example of an alternative mediating solution was the situation at Stanford before adoption of the harassment provision. The university's president and general counsel had said publicly that face-to-face use of racial epithets could be considered to violate the long-standing “Fundamental Standard” which required of students conduct manifesting such “respect for the rights of others as is expected of good citizens.” Though that solution gave too little guidance to satisfy civil liberties concerns in my view, it was in the same ballpark as the one later adopted. Other examples of mediating solutions include the regulation adopted at the University of California and the one proposed at the University of Texas. See note 32 below.
31 315 U.S. 568, 572 (1942).
32 The University of California has adopted a prohibition on student harassment by “fighting words,” defined as “those personally abusive epithets which, when directly addressed to any ordinary person are, in the context used and as a matter of common knowledge, inherently likely to provoke a violent reaction whether or not they actually do so.” These “include, but are not limited to” terms abusive in terms of race, sex, or the other categories of discrimination law. Harassment occurs when fighting words are used to “create a hostile and intimidating environment” which the utterer should know will interfere with the victim's education.
A committee at the University of Texas has proposed a regulation of “racial harassment” tracking the Restatement of Torts definition of intentional infliction of emotional distress, with the addition of the element of intent to “harass, intimidate, or humiliate… on account of race, color or national origin.” Establishing a violation requires an actual showing of “severe emotional distress” on the part of the victim.
33 See Cohen v. California, 403 U.S. 15 (1971); Gooding v. Wilson, 405 U.S. 518 (1972).
34 Compare Gregory v. Chicago, 394 U.S. 111 (1969) with Feiner v. New York, 340 U.S. 315 (1951).
35 Restatement of Torts, 2d, sec. 46, comment (d).
36 “‘Outrageousness’ in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression.” Hustler Magazine v. Falwell, 108 S. Ct. 876, 882. The Court's decision, however, does not foreclose granting tort damages under the “outrageousness” test for infliction of emotional distress through speech alone in a private or face-to-face context, rather than in a published and nationally distributed lampoon of an important public figure, such as was involved in Falwell.
37 Delgado, Richard, “Words that Wound: A Tort Action for Racial Insults, Epithets, and Name-calling,” Harvard Civil Rights-Civil Liberties Law Review, vol. 17 (1982), pp. 133–81.Google Scholar Professor Delgado has assembled on pp. 136—49 an impressive body of evidence and argument that supports the identification of racial verbal abuse as inflicting a distinctive and identifiable form of injury, and so qualifying as a distinctive wrong. His proposal is limited to racial insults.
38 Because I believe to this extent in the “no false ideas” strand of American First Amendment law, I reject group defamation and hate speech prohibitions of the kind called for by the International Convention on the Elimination of All Forms of Racial Discrimination: “States Parties… shall declare as an offence publishable by law all dissemination of ideas based on racial superiority or hatred….” Mari Matsuda ably argues the contrary view, urging modification of First Amendment law to permit the extension of a limited version of the international standard to this country in “Public Response to Racist Speech: Considering the Victim's Story,” Michigan Law Review, vol. 87 (1989), p. 2320. As Professor Matsuda's article documents, many Western countries have such laws. The Canadian hate-speech statute is currently under review by the Supreme Court of Canada for its consistency with the free expression guarantee of the recently adopted Canadian Charter of Rights and Freedoms.
39 It would be possible, in the interests of maximum clarity, to attempt a comprehensive list of the “discriminatory fighting words” and equivalent visual symbols (swastikas, burning crosses, etc.). I think this would be a mistake; new examples of such words and symbols are constantly being invented by the creativity of the collective bigoted mind. Even without a definitive list, however, the Stanford regulation gives clearer notice of what will count as an offense than any other similar proposal I know. I should add that as I understand the provision, derogatory epithets aimed at (white) national origin groups (“dago,” “Polack,” etc.) would come within its terms to the extent they were determined to be still “commonly understood” to “convey direct and visceral hatred or contempt” on the basis of national origin.
40 The narrow confinement of the harassment regulation to the use of the gutter epithets also emphasizes that it is meant as an anti-discrimination provision, not a “civility rule.” As a teacher, I would not let students address each other in class using personally derogatory terms of any kind, and would exclude students who persisted in doing so. That is a civility rule, similar to those applied in most American parliamentary bodies. Such rules are not, in my opinion, appropriate for campus-wide enforcement. The campus should be thought of as primarily a general public forum, and secondarily as a workplace (the work of education). I would add that values of residential privacy may justify more stringent regulation of offensive speech in student dormitories than in classrooms or in public campus areas, but this is a complex issue which I cannot treat adequately here.
41 This is the concern raised by Justice Black in his dissent from the Supreme Court's decision sustaining conviction of a white racist pamphleteer under a group libel statute: “If there be any minority groups who hail this holding as their victory, they might consider the possible relevance of this ancient remark: ‘Another such victory and I am undone.’” Beauhamais v. Illinois, 343 U.S. 250, 275 (1952).
42 Indeed in its usual sense, the term is implicitly racist toward people of color – with its implication of surprise that a white person would be “trash.”
43 I realize that others might disagree with this, citing terms such as “honky,” “gringo,” “breeder,” etc. But I myself do not know which of these terms are current and seriously-used epithets of hatred or contempt – evidence that they are not “commonly understood” as such. On the other side, no sentient black, Latino, or gay American has any doubt about the current standard insulting epithets for their groups.
44 A similar analysis applies to the unjustified use of the term “white racist,” which many of my white students have invoked as the equivalent, applied to them, of the standard racial epithets as applied to the students of color. Leaving to one side whether unjustified use of a term like this inflicts the same level of injury, it does not in any event come within the class of injuries that concern civil rights law and policy. The term “white racist” does not denigrate whites as such, any more than “black separatist racist” denigrates blacks as such. In addition, strong civil-liberties considerations distinguish the cases. Terms of political abuse like “white racist” (or “Stalinist,” “Nazi,” “terrorist”) are sometimes accurately and appropriately applied to individuals in robust debate; exactly when they properly apply, however, is politically controversial. In contrast, the Stanford provision rests on the premise that the racial (and other) discriminatory gutter epithets it deals with are never appropriately directed at individuals; enforcement of the provision, therefore, does not involve the politically charged task of discriminating between justified and unjustified uses.
45 Rawls, John, A Theory of Justice (Cambridge: Harvard, 1971), pp. 178–79, 440–46, 543–47.Google Scholar
46 Brown v. Board of Education, 347 U.S. 483 (1954); see also Mayor of Baltimore v. Damon, 350 U.S. 877 (1955) (beaches); Gayle v. Browder, 352 U.S. 903 (1956) (buses); Holmes v. City of Atlanta, 350 U.S. 879 (1955) (golf courses); Johnson v. Virginia, 373 U.S. 61 (1963) (courthouses).
47 Plessy v. Ferguson, 163 U.S. 537, 551 (1896), rejecting the claim that “the enforced separation of the two races stamps the colored race with a badge of inferiority” on the ground that “[i]f this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” Compare Brown v. Board of Education, 347 U.S. 483, 494 (1954).
48 Edmond Cahn early on offered this rationale as the proper interpretation of Brown:
As is observed in the ancient Babylonian Talmud, to shame and degrade a fellow-creature is to commit a kind of psychic mayhem upon him. Like an assailant's knife, humiliation slashes his selfrespect and human dignity. He grows pale, the blood rushes from his face just as thought it had been shed. That is why we are accustomed to say he feels “wounded.”…
So one speaks in terms of the most familiar and universally accepted standards of right and wrong when one remarks (1) that racial segregation under government auspices inevitably inflicts humiliation, and (2) that official humiliation of innocent, law-abiding citizens is psychologically injurious and morally evil…
“Jurisprudence,” New York University Law Review, vol. 30 (1955), pp. 148–59.
49 Lawrence, Charles III, “If He Hollers Let Him Go: Regulating Racist Speech on Campus,” Duke Law Journal, vol. 1990, pp. 901, 909.Google Scholar My treatment of Brown has been much influenced by this excellent article.
50 Nadine Strossen contests the Brown analogy in these terms in her article cited above.
51 Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978), cert, denied 436 U.S. 953 (1978); Brandenburg v. Ohio, 395 U.S. 444 (1969); Terminiello v. Chicago, 337 U.S. 1 (1949). The Court has reiterated the point in significant dicta in the flag-burning cases. “The First Amendment does not guarantee that other concepts virtually sacred to our Nation as a whole – such as the principle that discrimination on the basis of race is odious and destructive – will go unchallenged in the marketplace of ideas.” Texas v. Johnson, 109 S. Ct. 2533, 2544 (1989). “We are aware that desecration of the flag is deeply offensive to many. But the same might be said, for example, of virulent ethnic and religious epithets [citing Terminiello]….” United States v. Eichman, 110 S. Ct. 2404, 2410 (1990).
52 The reliance of traditional civil-liberties law on a public-private distinction much stronger than we recognize elsewhere is the theme of Michelman, Frank, “Conceptions of Democracy in American Constitutional Argument: The Case of Pornography Regulation,” Tennessee Law Review, vol. 56 (1989), p. 291.Google Scholar
53 Thus in Shelley v. Kraemer, 334 U.S. 1 (1948), extensive legal supervision of the kinds of enforceable covenants running with the land rendered enforcement of a racially restrictive private covenant discriminatory state action; in Terry v. Adams, 345 U.S. 461 (1953), extensive state regulation of elections rendered the exclusionary practices of the formally private Texas Jaybird Democratic Club (in effect the white Democratic Party) discriminatory state action; in Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), public ownership and operation of a parking garage constitutionally entangled the state in die racial exclusion practiced by a privately-owned restaurant leasing space in the building.
54 See the language from Justice Brandeis's opinion in Whitney v. California, quoted in text accompanying note 24 above.
55 Thus in Bohen v. East Chicago, the plaintiff, a female fire department dispatcher, had to deal with a supervisor who was constantly “speaking to her entirely of sexual matters and describing his preferred sexual positions, Bohen's participation, and his expectations for her behavior.” Further, she was “a continual target for obscene comments by firefighters and other male employees and was forced to listen to their filthy talk and descriptions of their sexual fantasies of which she was the object.” A fire captain told her that “a forcible rape in some nearby flora would improve her disposition.” 799 F.2d, pp. 1182–83.
In EEOC v. Murphy Motor Freight Lines, 488 F. Supp. 381 (D. Minn. 1980), Ray Wells, a black dockman, was subjected regularly to racial slurs on chalkboards attached to loading carts: “Ray Wells is a nigger,” “The only good nigger is a dead nigger,” “Niggers are a living example that Indians screwed buffalo.” When Wells started eating in another room, his white co-workers wrote “niggers only” above the door. Management did nothing in response to complaints. See pp. 384–85.
56 Policy Guide of the ACLU (rev. ed. 1989), at 142, 400. The ACLU position requires distinguishing between (protected) verbal abuse that merely renders the environment “unpleasant” and that which crosses the line to inflicting actionable emotional distress – hardly a bright line. My thanks to Nadine Strossen for providing me the text of these ACLU provisions.
57 Which is not to say that verbal formulae may not be offered to supply formal or aesthetic resolution to liberal theory and hence present it as a closed system. John Rawls attempts such a closure with his lexical ordering of liberty over equal opportunity in A Theory of Justice; the difficulty is to defend the substance of this firm hierarchy. Joseph Raz supplies an attractive overarching account of “autonomy” as the supreme liberal value, resolving liberty-equality conflicts, in The Morality of Freedom. I myself prefer the frank pluralism of Berlin, Isaiah in “Two Concepts of Liberty,” Four Essays on Liberty, pp. 167–72 (London: Oxford, 1969).Google Scholar
58 Thus I sympathize with Owen Fiss's suggestions for moving First Amendment doctrine in a more realistically democratic direction in his “Free Speech and Social Structure,” Iowa Law Review, vol. 71 (1986), p. 1405. On the other hand, I stop short of endorsing civil-rights-based bans on potentially broad content-defined categories of speech: racist speech, as endorsed by Mari Matsuda, “Public Response”; or sexist pornography, as in the trafficking provisions of the Indianapolis anti-pornography ordinance invalidated in American Booksellers Assn'n v. Hudnut, 771 F.2d 323 (7th Cir. 1985).
59 Thus in the most “neutralist” of recent Supreme Court civil-rights decisions, City of Richmond vs. J. A. Croson, 109 S. Ct. 706, 721 (1989), invalidating a municipal minority business set-aside program, the Court majority stated the grounds for treating even benign racial classifications as suspect in terms instrumental to an anti-caste goal: “Classifications based on race carry a danger of stigmatic harm…. They may in fact promote notions of racial inferiority and lead to a politics of racial hostility.”
60 The First Amendment is also tied (as the free exercise and privacy rights are not) to the preservation of a functioning democratic system of government; however, there could conceivably be a working free speech guarantee, justified along the lines I suggest, even in a liberal but undemocratic state.
61 This romantic side of the civil-liberties mentality is very attractively presented in Shiffrin, Steven, The First Amendment, Democracy, and Romance (Cambridge: Harvard University Press, 1990).CrossRefGoogle Scholar
62 163 U.S. 537, 559 (1896). Actual current controversies that raise this issue (though less starkly) include the continued official use by southern states of the Confederate flag.
63 This isn't true of government in all societies; see Geertz, Clifford, Negara: The Theater Slate in Nineteenth Century Bali (Princeton: Princeton University Press, 1980).Google Scholar
