a1 Law, Stanford University
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.”
* My thanks for excellent research assistance go to William Boyle, Jay Fowler, and John Tweedy. And I am also grateful for the editorial suggestions of Barbara Babcock, Barbara Fried, Mark Kelman, Richard Posner, Robert Rabin, Carol Rose, James Weinstein, Steven Shiffrin, and Steven Winter; of those who attended my faculty workshop at Boalt Hall, University of California, Berkeley; and of Ellen Paul and the other editors of Social Philosophy & Policy. Finally, special thanks, for inspiration, to Charles Lawrence III.