Features
06.19.2020
17 minutes

Anti-discrimination regulations are their own kind of soulcraft.

One might say that Arthur Milikh has written two essays: one explaining how a variety of laws and related developments work to curtail (or threaten to curtail further) freedom of speech, and another exploring the moral logic underpinning and arising out of those laws.

But it is precisely the insistence that these two dimensions of modern democratic life need to be considered together as a unity that is the greatest strength of his analysis. Milikh reminds us that politics, and especially contemporary civil rights politics, is as Aristotle would say “architectonic,” structuring the life we live in the social world, above all through the force of its moral categories.

The question of hate speech regulations, like the broader question of all the many different ways that the fight against discrimination works to limit speech and shape thought, is properly understood as an important part of a much bigger political picture. Milikh’s reflections on the question of hate speech could be expanded out in two important ways to emphasize the broader regime-level conflict at work.

First, the account of this one very narrow policy tool—hate speech restrictions—could be anchored in a fuller account of a broader question: what is it about the commitment to fighting discrimination that necessarily entails powerful efforts to restrict speech? By focusing on the challenge from this potential European import, Milikh understates the many different ways speech restrictions are already structured into anti-discrimination law in the U.S., a legal regime far more powerful than hate speech codes (with their ties to criminal law) ever could be.

Second, all of these debates over free speech must be seen from the point of view of the broader political demand that seems now to make speech restrictions necessary, urgent, and compelling. Here we are confronted with the anti-discrimination regime and our ignorance about it. Milikh’s appreciation of the moral dimension of the new order (his account of “a New Dignity” as adumbrated by hate speech regulation theorists) is an example of the kind of political science that we need to grapple with this aspect of modern democratic life.

Should We Be Worried About “Hate Speech” Regulations in the United States?

Milikh summarizes four different limitations upon free speech in the United States today: 1) anti-discrimination law and especially legal limits on harassment; 2) a new emphasis on dignity in the Supreme Court’s gay marriage decisions; 3) big tech companies that work to silence speech perceived to be discriminatory; 4) policies and practices of America’s colleges and universities. This summary helpfully begins to sketch in a concrete way just how pervasive the reach of the anti-discrimination regime has become. But I would emphasize, in a way that might seem simplistic or crude:the law, the law, and again the law provides the crucial ground of all of these developments.

Indeed, I count more than ten noteworthy ways of regulating speech, press, and media among American anti-discrimination policies. While the United States has not adopted blanket European-style bans on “hate speech,” which are Milikh’s focus (we do penalize “hate crimes,” but that is something different), the American speech restrictions, precisely because they do not rely on criminal law with its higher burdens of proof and procedural rights for defendants, are just as effective if not more so. The best known of these regulations are, first, anti-bias ordinances and speech codes (the latter especially in institutions of higher education, public and private). Now it is true that in 1992 the Supreme Court, in its unanimous R.A.V. v. City of St. Paul decision, struck down speech codes in the name of free speech. But the effect of the R.A.V. decision, it seems to me, has been to obscure the bigger picture. To begin with, speech codes in the year since have flourished unabated and, so long as they are framed correctly,can now avoid the Court’s scrutiny altogether.

Second, but much more important as a practical matter (indeed the most important American tool of anti-discriminatory speech restrictions), is the web of policies (most famously Title IX) penalizing “harassment,” rightly highlighted by Milikh. That step launched what must be said to be a pervasive program of public and private policing of speech, made extremely effective through legal inducements and the threat of loss of employment, unlike anything ever seen in American life. Third we may count, all as one, the many additional ways in which the world of American education is shaped by anti-discrimination law: multicultural education policies, policies in higher education governing student recruitment and faculty hiring, authoritative (and state-sanctioned) accreditation diversity standards, and similar measures (to say nothing of both categories one and two above as they apply to the sphere of education).

A fourth major limitation is to be found in the licensing policies of the Federal Communications Commission that have long prohibited (since the 1960s) overtly discriminatory content on the radio airwaves and on network television. Fifth, advertisers are restricted by several different anti-discrimination laws (to begin with, Title VII, the Fair Housing Act, the Equal Credit Opportunity Act, and the Age Discrimination in Employment Act). The importance of this set of restrictions is magnified in the internet age because it is one area where anti-discrimination lawsuits have been effective in changing the core business practices of dominant internet players like Craigslist, Facebook, Google, Twitter, and YouTube (and not touching their operations merely indirectly or incidentally, through employment discrimination claims, say). If internet search algorithms (and the sharing of information across the web they facilitate) are considered a form of speech, then recent lawsuits alleging discrimination against YouTube and Google by LGBT groups suggest a sixth important policy avenue of speech regulation under the civil rights banner.

Seventh is what one law professor terms the “expand[ed] scope of public accommodations laws” enacted at the state and local level (mirroring Title II of the 1964 Act). In the related 2018 case (Masterpiece Cakeshop) that reached the Supreme Court, involving a baker who was penalized by the Colorado Civil Rights Commission for refusing to decorate a same-sex wedding cake, Justice Kennedy’s opinion refused to decide whether this was a matter of the government in effect “compelling speech,” a move generally thought to be forbidden by the First Amendment (Kennedy ruled on religious freedom grounds). But other cases dealing with photographers and printers and other private professionals in similar circumstances are sure to raise the question of whether free speech or anti-discrimination public accommodations laws are more important.

An eighth significant policy is to be found in anti-bullying laws passed over the past few years in all of the 50 states. While anti-bullying campaigns were first launched to deal with violence and school shootings, their legal architecture overlaps with the anti-harassment framework, a point driven home in an Obama-era Education Department “Dear Colleague Letter” on the subject issued in 2010. Ninth, though not technically a limit on speech or press, state and federal laws criminalizing hate and penalizing more severely hate “motives” in acts otherwise deemed criminal have advanced steadily since the 1980s and were declared constitutional by the Supreme Court in 1993. Tenth, efforts to restrict or remove public symbols associated with past discrimination (above all the Confederate flag and statues and monuments associated with the Confederacy or slave owners and the like) are opposed, when they are opposed, at least in part on First Amendment grounds. Eleventh, efforts of the Department of Housing and Urban Development to prosecute local opponents of public housing projects and to take other steps to silence them (accusing them of discriminatory practices) have come under fire from defenders of free speech. Finally, intellectual property law sometimes touches questions (racially offensive sports team names and trademarks, patents for race-specific products) that dovetail with civil rights efforts (a high-profile trademark case concerning the Asian-American band The Slants was one of the few recent wins for First Amendment advocates).

The Supreme Court’s contribution to the broad question of the relationship between anti-discrimination and freedom of speech in all of these controversies has mainly been to ignore it or, at best, to take firm stands (in unanimous or near-unanimous decisions) on both sides of the question (on balance it has sided mostly with anti-discrimination).

The force of these efforts, already cemented into American life through the law, suggests that hate crime laws would make less of a difference than Milikh suggests. This is conveyed in a simple way by examining the most important of America’s own tools for restricting speech, the idea of policing “harassment” (where “harassment” is understood as “hostile work/educational environment”).

To make a long story short, this strategy brings together three different civil rights legal frameworks (Title VII and Title VI of the 1964 Act and Title IX of the Education Amendments of 1972—the “T 7-6-9 nexus,” let us call it). The idea that “harassment” is discrimination, an invention of feminist lawyers (Catharine MacKinnon most famous among them), was made authoritative for Americans in opinions written by conservative Supreme Court Justices Rehnquist and O’Connor. It provides the foundation of a wide-ranging legal infrastructure for policing discrimination at the level of the individual, and not just institutions, with extremely powerful sanctions (above all the threat of loss of employment).

Because of the shape of the law here, any individual accused of discrimination now poses a threat to his or her employer because of the possibility of civil rights lawsuits against said institution (whether brought by the state or by private individuals; T-7 & T-9) and/or the loss of federal funding (T-6). To this must be added the power of civil rights agencies to investigate institutions for discrimination, even when charges are never brought—a tool used by civil rights watchdogs in the federal bureaucracy to great effect.

The force of the T 7-6-9 nexus means that employers and educational institutions have very powerful incentives to take action against individuals accused of discrimination—most importantly, to fire them. And because American employment law gives employees in such circumstances almost no recourse, the workplace has become an especially powerful kind of semi-official enforcement agency watching over almost everyone in the American workforce. Teachers and academics are doubly watched over, as employees subject to Title VII and as educators subject to Title IX.

The overall result is that the most effective enforcement tool of anti-discrimination law operates at the level of person-to-person interactions, in the quasi-public, quasi-private areas of the workplace and educational institutions. This is a form of law-enforcement power exercised, not by the state directly, but above all by one’s fellow citizens (acting as employer, manager, H.R. representative, dean, or the like). The fact that an individual as an individual faces loss of employment for prohibited discrimination, is not ever stated in straightforward language in the mass of American anti-discrimination law. But it is perhaps today the single most important fact about it.

From the point of view of the range and reach of the law we already have in place, I have to say that the threat from European-style hate speech rules does not seem so worrisome. Indeed, because they are embedded in the criminal law, hate speech codes are hard to enforce (stricter rules of evidence, higher standards of proof, due process protections for the accused). As Milikh himself points out, there are relatively few such prosecutions against speakers in the EU.

In the U.S. the closest thing to hate speech laws are hate crime laws (exacting more severe penalties for crimes committed from discriminatory motives). The enforcement of these has gone together with a drop in the number of reported hate crimes. No such decline is to be found for the T-7-6-9 nexus, as the number of employment discrimination lawsuits trends ever upward (to say nothing of the enforcement of all the other laws restricting free speech in America mentioned above).

Anti-Discrimination as “Regime” (Or Quasi-Regime)

All of this needs to be understood with a view to the broader change in our political life that is its deepest cause. The democratic soul is today being reshaped by a new kind of half-regime or quasi-regime, the civil rights or anti-discrimination regime.

This is a strange development, hard for us to understand and see for a variety of reasons. The commitment to fighting discrimination was not first a political theory or ideology—there is no Marx, Burke, or Locke of anti-discrimination politics. Not even the civil rights activists of the 1960s who helped to pass the civil rights laws that now govern us foresaw the world that those laws would usher in.

There is a “regime” associated with anti-discrimination politics, a “who,” a roster of groups now familiar to all. But with the important exception of American Blacks, whose archetypal experience of resistance to discrimination provides a crucial touchstone for others, the groups that were covered under the second and third waves of civil rights law are in a way the products of the law as much as they are its cause.

All of the groups we now associate with anti-discrimination politics existed prior to 1964. But only after the new legal framework came on the scene, with its leverage and its great moral power, did those groups begin to understand themselves so fully as victims of discrimination as they now do. It is not simply true that a coalition of groups working to advance their perceived self-interest created laws to that end, though that is part of the story. Instead, more fundamentally, a legal framework burst on the scene more or less fully-formed, and then its logic went to work on the souls of democratic peoples sufficiently to push many of them into a new view of themselves, of the group-characteristics they shared with some others, of the social plane, and of the claims they could make upon the world.

It is probably best to say that what we witness here is above all a new regime of laws, as strange as that may sound. To see this, in turn, is hard because understanding all the complexity of civil rights laws is hard, and mapping out the broad causal force of those laws with precision is nearly impossible.

Another reason we have a hard time seeing the architectonic force of anti-discrimination law is that any sensible discussion of American politics must also use the language of the liberal democratic tradition. Two very different problems arise as soon as liberalism is interjected into the mix.

First is the tangled relationship between the anti-discrimination revolution and liberalism. Brown v. Board of Education represents the U.S. Constitution’s (14th Amendment Equal Protection Clause) answer to the problem of discrimination, one framed in terms of the crucial liberal divide between public and private.

That answer was deemed inadequate by history and, one might say—Left and Right today agreeing about this—from 1964 onward because the world of Brown would have left intact a realm of “private” discrimination. But such private action shaped much of life in obvious and important ways, so obvious indeed as to endanger the legitimacy of the public-private divide itself (probably the single greatest “intellectual achievement” of the civil rights era is a running critique of the public-private divide and its legalistic twin, the “state action doctrine,” two massive academic literatures).

The idea that anti-discrimination policy is “not liberal” may seem odd. How could something called “civil rights” not be tied in some fundamental way to liberalism? A full answer to that question is complicated, but compelling evidence that anti-discrimination politics turns modern democracy onto new and different paths is readily available to anyone willing to look.

The free speech debate is the most obvious place to look. Likewise, civil rights law poses deep challenges to the public-private divide (going beyond the regulation of the private sector of business/commerce to reach now also “society,” interpersonal relations, and the domain of private thought). From this there naturally emerges also a new view of “group politics,” of the kinds of groups that count most, of what those groups may demand, and of the role of the state for groups and inter-group conflict. Changes to our understanding of such issues as the relationship between religion and politics—no small matter—follow from all of this (conservatives now embrace anti-discrimination logic to challenge the separation of church and state).

Most fundamental in my view are changes to the democratic understanding of the relationship between politics and morality on the one hand (legislating morality is no longer bad) and to the substance of democratic morality on the other (identity, inclusion, recognition, respect—and the “new dignity” explored by Milikh). The ends of democratic politics change, and with them go the means we deem acceptable and the logic of moral justification that is suddenly nigh-impossible to resist.

The second obstacle for good liberals who wish to understand what is happening is liberalism’s own reluctance to see politics through the lens of politics in a strong sense, with a view to the idea of “the regime” and such like talk, with all its connotations of rule, rulers, ruled, and claims of “deserved” rule. The idea that citizens are shaped by regimes flies in the face of claims of free individuals, rights-bearers, that are to be understood first and foremost in terms of limitations on the power of government.

Whether its lessons are wanted or not, anti-discrimination politics is a great teacher of liberals about the limitations of liberalism—and the emerging order will continue to teach all of us in this way for as long as it predominates through the law. It is a great question whether liberalism can sustain the faith of citizens, or for how long, under what is by now a massive pressure of legal-political pedagogy.

What is to be Done?

What to “do” with Milikh’s analysis? It is not enough to say that European-style hate speech codes deserve to be examined carefully. Certainly liberalism ought to be defended in the broad contest over the shape of modern democratic politics that comes to sight here. But are liberalism and the liberal tradition strong enough to contain the political energies unleashed by the anti-discrimination revolution?

If not, is the recent embrace by some conservatives of “nationalism” not in a way a kind of engagement with something like the raw democratic politics we see in the anti-discrimination regime itself, but now on behalf of some vaguely perceived and articulated majority (the American “nation” outside of liberal ideas being necessarily a vague idea)? That doesn’t seem likely to help either. I might end by saying that the answer is to be found inAristotle—or, more precisely, in an Aristotelian account of the new order. But would anybody believe me?

is associate professor of political science and great ideas at Carthage College.