Thursday, February 09, 2006
Reconciling rights and identity politics: What do Denmark, the Philadelphia Inquirer and Northwestern University have in common?
In the version of the play that ran until last week, Muslims the world over were oppressed people whose sensitivities needed to be respected whatever their actions. This was easy to do, because leftist academics argued that Muslim political society was a mess because of Western imperialism. We had, in effect, only ourselves to blame.
The curtain went down on that production when the Muslim "street" demanded the right to regulate what was by Western standards extremely innocuous speech inside a small, inoffensive Western democracy. The oppressed people to whom -- under the left's model of identity politics -- we owe so much deference are now insisting that our rights are not our own, and that we may not hold the opinions that we hold and discuss them under the blanket of our own constitutions.
This idea that we must bow with particular depth to the sensitivities of historically oppressed people pervades our culture. It is embedded in our nation's employment laws. For roughly the last ten to fifteen years, it has been possible for an offended employee in a "protected class" to sue his or her employer because somebody in the workplace uttered speech that the plaintiff found offensive. Pure "hostile environment" cases do not require any discriminatory job action -- the speech itself is tortious if it sufficiently offends the plaintiff that a jury can say that the conditions of the plaintiff's work have changed. Indeed, plaintiffs can collect damages under this theory even if the speech comes from somebody who has no authority, including bottom echelon employees or customers, if the employer does not crack down on that speech. Employers now have to police the speech of their employees or their customers, lest somebody in a protected class be offended. We police what our employees read, write or say, not just on company time but through company laptops, company servers and company networks. We have to do this, or a court can order us to pay huge sums in damages all because of an expressed opinion.
Since almost everywhere outside the home is somebody's place of employment, we now effectively police speech in a huge segment of American society, because we -- meaning supporters of the hostile environment line of employment law cases -- feel that sensitivity to the feelings of historically oppressed peoples is more important than unfettered speech.
Sometimes, these principles collide. We deal with this by carving out implicit exceptions for certain kinds of employers. Employers who happen to be newspapers or universities do not -- yet, anyway -- face the same constraints that other employers do. The Philadelphia Inquirer can get away with publishing the famous Danish cartoons without running the risk of a hostile environment lawsuit from Muslims who happen to work there (if there are any), only because it knows that a court will simply give a newspaper slack that it would not give to an ordinary company that reproduced those cartoons in its employee newsletter. There is nothing that I know of in the law that permits this different standard, but I assure you that the Inquirer's legal staff nevertheless assumes that it would prevail.
This same double standard applies to universities. Look at the case of Northwestern University and its Holocaust-denying professor Arthur Butz (CWCID: The Emirates Economist). He uses Northwestern's servers to host a web page devoted to denying the central defining fact of 20th century Jewish history. This is rank anti-Semitism, insofar as it accuses millions of Jews of lying about their experiences during the 1940s for political advantage. And lest you think I'm being too tough on Butz, consider that he has recently volunteered to assist Iran's president Ahmadinejad in building the case against Jewish historical fact.
Now, if Butz used the servers of any commercial enterprise for such purpose, it would be running a risk of enormous liability. Northwestern, though, is defending Butz's right to use its systems to spew his filth.
On Monday, Northwestern’s president, Henry S. Bienen, issued a statement denouncing Butz, but affirming his right to free expression. Bienen called Butz’s most recent statement “a contemptible insult to all decent and feeling people” and said that Butz’s views “are an embarrassment to Northwestern.”
But Bienen noted that Butz has never discussed the Holocaust in class and has made clear that he does not speak on the university’s behalf. “Like all faculty members, he is entitled to express his personal views, including on his personal Web pages,” Bienen wrote. “We cannot take action based on the content of what Butz says regarding the Holocaust — however odious it may be — without undermining the vital principle of intellectual freedom.”
In America today, it is astonishing that any employer can allow this sort of thing to go on. Northwestern is able to do this only because it enjoys an unwritten exception to the constraints that otherwise pervade American law and society. I actually agree with both Northwestern University and the Philadelphia Inquirer, but neither institution would be able to allow such speech if the logic of group identity "hostile environment" cases were extended to media corporations and universities. It hasn't been, because of an ugly truth that few on the left will admit: pure "hostile environment" cases cannot be reconciled with the right of free speech that Denmark, the Philadelphia Inquirer and Northwestern University have all decided to uphold.
If a couple of Danish embassies have to burn for us to understand what has happened to our own right to read, write, speak and draw without restraint, then it is a small price to pay.
8 Comments:
By 
TigerHawk, at
Thu Feb 09, 11:36:00 AM:
By TigerHawk, at
Thu Feb 09, 02:14:00 PM:
Hype -
So what's your point? Newspapers decline unsolicited material all the time. That, too, is part of unfettered free speech.
By Sissy Willis, at
Thu Feb 09, 03:28:00 PM:
I think it's going to be okay. The genie is out of the bottle.*
By 
, at
Thu Feb 09, 11:17:00 PM:
The freedom of speech that most people are concerned about is freedom from governmental content restrictions, not private liability. Slander and defamation laws are equal infringements of free speech as hostile environment harassment protection. In other words, the government isn't exercising an prior restraint on this "speech" (although most hostile environment cases involve long lasting and pervasive sexual/religious harassment that leaves its victims severely damaged), it is simply allowing entites to avoid incurring uncharged externalities.
By TigerHawk, at
Fri Feb 10, 11:46:00 AM:
Last Anonymous Guy: You're just wrong. The tort of libel is entirely constrained by the First Amendment, which is why it is almost impossible for a public person to win a libel lawsuit in the United States. To do so, he must prove that the defendant intentionally misstated a fact that damaged the plaintiff. The First Amendment provides an absolute protection to the expression of opinions even against plaintiffs in civil lawsuits, except in the curious and solitary case of our employment laws. That is the only circumstance under which a plaintiff may recover damages from a defendant who expresses an opinion. It is an inexplicable consistency that derives from astonishingly shallow thinking by our judges, and terrifically uncreative lawyering by the defense bar.
By , at
Fri Feb 10, 12:56:00 PM:
I am as left as you get. Much of this post is ridiculous, and I will tell you why.
First, the left isn’t some homogenous mush of absolute moral relativism. When you say liberals believe, “Muslims the world over were oppressed people whose sensitivities needed to be respected whatever their actions,” that is ridiculous. Just take one traditionally lefty issue, women’s rights and equality. Do you think people who want men and women to have equal rights really think we should without question respect the practice of covering women head to toe in cloth in part to keep their identity anonymous and subservient to men?
Shortly thereafter, you explain liberal apologetics for Muslim insanity, “leftist academics argued that Muslim political society was a mess because of Western imperialism.” I think the more accurate charge is that many leftists accept that some (meaning a subset, not all, a few) grievances are legitimate and should be redressed to improve world stability. Where do leftists get this foggy notion? By actually looking at specific instances where this holds and reading opinion polls that ask Muslims what their opinions are as well as why they have those opinions. Who else agrees with leftists? The State Department and Pentagon for starters. I quote from a Pentagon Defense Science Board 102 page study released in September, 2004: “Muslims do not ‘hate our freedom,’ but rather, they hate our policies. The overwhelming majority voice their objections to what they see as one-sided support in favor of Israel and against Palestinian rights, and the longstanding, even increasing support for what Muslims collectively see as tyrannies, most notably Egypt, Saudi Arabia, Jordan, Pakistan, and the Gulf states.” (There is much more, I selected this quote for the sake of brevity. The full report is here http://www.acq.osd.mil/dsb/reports/2004-09-Strategic_Communication.pdf
Your example of hostile environment employment laws as evidence of ridiculous “sensitivity to historically oppressed people” is confusing. For one thing, I fail to see where your point holds – unless you are referring to speech that would insult “historically sensitive people.” Are you suggesting that calling blacks “nigger” or telling women they don’t belong in the working world is ok? What is the link between sensitivity for historically oppressed people and the speech laws you are referring to?
One final point, you are claiming that speech is now regulated virtually everywhere outside of the home. This is because of liberal repression that holds no offensive speech is allowed. However, do you not recall your first paragraph? Let me refresh your memory. You wrote that one cherished idea of the American left is that “the natural born right of free speech is unbounded.” So are liberals trying to push out all speech that could possibly be offensive or are they married to an unbounded conception of free speech? Incidentally, do you truly not see the difference between a corporate newsletter and articles or commentary published by a newspaper or university?
-Justin
By , at
Fri Feb 10, 03:40:00 PM:
Tigerhawk, you misunderstood my post. Title VII workplace harassment law is no more of an infringement upon free speech than libel/slander/defamation claims are. None of those claims involve the prior restraint upon the content of a communication by a government.
The crux of our current misunderstanding involves the distinction between civil law and criminal law. The concept of "free speech" does not usually involve concern over private monetary actions. In other words, people are still "free" to espouse sexually charged, hate filled rhetoric at work under Title VII; they simply have to pay a plaintiff for the damage they cause.
P.S.: You are incorrect about opinions being absolutely protected. Milkovich v. Lorain Journal: (497 US 1) (1990): pure opinion may be actionable when it iss sufficiently factual to be susceptible of being proven true. Thus, defamation actions may be brought against communications that are pure opinions.
By TigerHawk, at
Fri Feb 10, 11:28:00 PM:
The First Amendment is not merely protection against prior restraints. If it were, one could simply allow speech, but execute people who have uttered objectionable speech. No prior restraint there, but I think most people would agree that the First Amendment was implicated.
I confess, I'm unfamiliar with the case you cite and too tired to read it tonight. However, you summary of the holding suggests that the case means that you cannot shield yourself from liability by couching a factual statement as an opinion. If your point is that a statement such as "In my opinion, that oak tree is blue" is sufficiently factual to be susceptible of being true, even though it is pure opinion, I would agree.
