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© St. Petersburg Times, published March 3, 2002
Civil rights activists and civil libertarians are locked in a battle that neither side wants to acknowledge. The problem begins with their fundamentally incompatible view of the role of government. Proponents of broad, far-reaching civil rights laws look to the government as a source for good and rely on its overarching enforcement powers to keep businesses and institutions free from discrimination. Civil libertarians see government power as the enemy of individual freedom. Their goal is to diminish the role of government and prevent it from interfering in people's private lives.
These two groups may see themselves as ultimately desiring the same thing: an utterly tolerant society. But they get there very differently. Civil libertarians understand that a tolerant society includes the right of each person to hold and express any and all views, even those that are highly discriminatory. Racist, sexist, and hate-filled speech is to be protected because to shut it down is to grant the government the power to make repressive judgments.
Alternatively, civil rights activists point to the real-life consequences of discriminatory speech. They say speech that causes minorities to feel oppressed and women to feel objectified is directly harmful and therefore should be banned.
As the body of civil rights laws have been used increasingly to attack bad speech, as opposed to bad acts, civil libertarians and civil rights activists have been put on a collision course.
Professors have to worry about using a classroom example that includes a racial stereotype for fear they will be punished for creating a hostile learning environment. Employers have to worry about an off-color joke for fear they will be sued for sexual harassment. Civil rights advocates are pushing for an expansive reading of antidiscrimination laws in order to silence those whose speech they find distasteful. Civil libertarians -- at least those who are honest enough to admit it -- find this state of affairs appalling.
Take a look around the legal landscape of public interest filings and you will find this collision in stark relief. Around the country, affiliates of the American Civil Liberties Union have been forced to come into cases in opposition to civil rights claims.
For instance, the Washington D.C. affiliate of the ACLU -- one of the best in the country due to its legal director Art Spitzer -- is representing a community group that has been sued by Boys Town, a Nebraska-based children's charity. Boys Town has brought a federal suit under fair housing laws against the Southeast Citizens for Smart Development, a small group of neighborhood activists agitating against the construction of group homes for disadvantaged youth. Because most of Boys Town's clients are black, the charity charges that SCSD's opposition to its project constitutes housing discrimination.
The suit obviously trenches upon free speech and one's right to petition the government, which is precisely what the ACLU has argued in its brief to dismiss Boys Town's lawsuit.
Add this case to the dozens of times the ACLU has had to oppose hate speech codes on college campuses and the places where the group has had to intervene on behalf of public school students who wish to sport the Confederate flag on book-bags or T-shirts and you have an organization that spends a chunk of its time and resources fighting the civil rights community.
The discomfort this has caused has resulted in compromises to its core mission. The ACLU's national board of directors put Mari Matsuda, a nationally renowned proponent of hate speech codes, on its advisory board. And, more important, the organization has shied away from aggressively attacking the free speech consequences of sexual harassment law. In order to avoid liability for on-the-job sexually oriented conversation, employers now feel compelled to impose strict speech codes on employees. The ACLU should be out front on this, demanding that antidiscrimination law be interpreted so as not to punish sexual speech at work. But the organization, for the most part, has skittishly watched from the sidelines as the gouging of the First Amendment continues.
When Jim Crow laws existed and when women were held back through legal constraints, civil rights activists and civil libertarians were in perfect concert. Both groups fought to remove the government's foot from the neck of women and blacks. Yet, with the extinction of de jure discrimination, the interests of these two camps have seriously diverged. It all comes down to one's view of the proper role of government: civil rights activists believe the government must be powerful enough to control all forms of discrimination. For civil libertarians, less is more.