Kenneth W. Golish

Detroit, Michigan, 1993

Does political correctness threaten to erode freedom of speech guaranteed by the First Amendment? Has political correctness already done so? If not, do we need to fear the consequences of a later incursion of political correct thinking into the fabric of government?

It is not hard to find examples of political correctness at work. Most frequently we hear about the suppression of speech in the college classroom during debates on such contentious issues as affirmative action or abortion. Many conservative students feel intimidated by their professors and other students. They may be ridiculed, labelled racists or hounded for expressing contrary views. So more often than not, they are quiet.

From another approach, there are examples of conservative scholars facing controversy when their views draw criticism. In London, Ontario, politicians and fellow academics called for the firing of a professor over his theories of racial superiority based on studies suggesting correlations between brain size and intelligence. At Harvard, a professor decided not to teach a course after some students complained about his racial insensitivity. Although the university upheld his conduct in the course, the professor felt so devastated by the process, he chose not to face the same controversy again.

These two examples are part of the larger concern about academic freedom. Should decisions on hiring and tenure be made on the basis of political opinion? If it is illegal to exclude a person from employment on account of race or religion, are a candidate's political beliefs entitled to protection as well?

We have another example we heard about a few years ago at NYU Law School. The moot court board selected a problem involving a lesbian mother and lover in a custody fight with the father. The board first withdrew the problem after some students objected to it. The students complained that one side would have to take a position against the rights of homosexuals. When the board withdrew the problem, conservative students took exception. Why was the board seeking to suppress debate on such a topic? That the problem offended some students was not a reason for denying others the opportunity to tackle it. One NYU professor argued that withdrawing the problem was a declaration that some legal questions were not open for a debate, a proposition at odds with the basic principles of legal learning.

Most examples come from the educational community, but the arena is not exclusive. Politicians, the police, the judiciary must now conform their conduct to political correctness.

Politically correct people are for reform. Within the vision of political correctness are affirmative action programs for minorities and women, gay rights, and gender-neutral language. To be correct is also to support revising educational texts in history and the humanities. This revisionism contemplates recognizing the achievements of woman and people of color.

The basis of political correctness is reform. Reform being what it is, the politically correct are probably not in the majority, although the phrase and examples so often used suggest otherwise. PC people are of course not a small minority either, but a strong voice. Thus, political correctness has motivated government, business and educational organizations to reform the way they treat people. Since political correctness may not be the product of majority politics, it is perhaps this that is so disagreeable to the politically right: the silent majority is not heard for fear of the wrath of the minority.

If reform has irked the politically incorrect, the past few years have seen a reaction to political correctness from the right. Those at the forefront of the movement against correctness charge that liberals are intolerant of the views of those who do not follow the dogma of the left, that expression is suppressed and that Orwell's 1984 is upon us. So it is that while we were worried about the thought-police being Fascists about to take away our liberties, it is the PC's from the left who now threaten to do the same.

Interestingly, even liberals have expressed sympathy with this campaign. This is a good measure of its success. If one person had set out to orchestrate this onslaught against liberalism, the achievement would have been considered brilliant. Whether by accident or design, the attack on political correctness has succeeded largely because the usual defenders of free speech, the liberal left, have found some legitimacy in the attack. They have however, given it more credit that it was due.

True, political correctness suppresses speech, but that is what really happens in a democracy. That is what happens in a society that recognizes the rights of its citizens to speak as they wish. If the views of the politically correct Left did not now prevail in the press, education, big business and politics, it would be some other group. The private suppression of speech is really what the First Amendment is all about. It is only when government acts to suppress speech that our liberties are threatened.

Political correctness is the politics of inclusion. So much of the history of the human race involves the suppression of the rights of minorities and women. Having recognized that society has excluded so many from the rights of full citizenship for so long, the politically correct seek change in making all persons equal. This reform works on more than one level.

On one level we hear about reforms to change the way we teach and use language. It is now politically correct to recognize that the natives of North America were not mere savages, but had a highly developed culture. Columbus was more likely a brute, so why should we commemorate the 500th anniversary of what was questionable his discovery? It is not only the authors and publishers of historical texts who must change, but also all those who use language whether spoken or written. We expect politicians, judges, the press to use gender-neutral language. For example, why use the word 'fireman' when 'firefighter' conveys the exact same meaning without excluding the possibility that person described is a woman.

On this level, the campaign against political correctness seeks to lesson the importance of language while arguing that it is unfair to control normal patterns of speech. As for historical revision, they argue that the current historical perspective is valuable because it has survived and should not be rejected.

Political correctness also operates in moving government and industry to enhance the rights of those formerly excluded from full participation. Thus we have affirmative action programs and human rights legislation. Those opposed to political correctness are often those opposed to affirmative action. The correlation is not merely accidental. The political right now finds traditional rights abridged. With society seeking to enhance the rights of those formerly denied them, it is done at the expense of those who have never been denied such privileges. The white male is now the victim. These of course are legitimate concerns, but they depend on a debate that goes on now and will continue to do so for a long time.

The problem is that the campaign against political correctness has more than one aspect of hypocrisy. Harvard Law Professor Randall Kennedy in a lecture in 1991 criticized the campaign against political correctness as hypocritical. Those who would oppose the politics of inclusion, the politics of victimization of persons other than white males, now cast themselves as victims of political correctness. Yet another aspect is that those on the right by their very criticism are doing what they are critical of; attacking their opponent's politics of illegitimacy because of their opponent's intolerance.

Are there examples of political correctness that should concern us in the context of the First Amendment? There are. The proliferation of hate codes on university campuses is perhaps one example.⁽¹⁾

Assuming that these codes should always be subject to First Amendment analysis, considerations of vagueness and overinclusiveness should apply. These are principles that have been part of First Amendment jurisprudence. Last term, the Supreme Court dealt with the issue in the strikingly similar context of a municipal by-law. The Court struck down a law that prohibited cross-burning for the sake of racial intimidation. Most such prohibitions will fail under such jurisprudence. The same doctrines will apply to laws attempting to deal with pornography. That such laws may be of concern under the First Amendment is not a basis for suggested all political correctness is repressive. In fact, in these areas, many of the politically correct are not on the side of such prohibitions.

So what of the other examples of political correctness? Perhaps the best case against political correctness can be made in the area of academic freedom. Here though, there is nothing new and there is no reason why traditional First Amendment analysis should not apply. Under that analysis, the speech of public servants, teachers and others may be legitimately constrained in the context of their work. For those in the higher levels of the administration of government, the state may decide what speech is appropriate and may make appointments purely on the basis of politics. Recently in Washington, we saw Clinton's political appointments enter the front door of the administration while former Bush officials quietly packed their things and left through the back. The outgoing administrators did not grumble about the process. What could they say? Politics may, in certain circumstances, be a basis for making hiring decisions. It all depends. According to the Supreme Court, a police dispatcher may not be fired for expressing her approval of the Reagan assassination attempt, but a prosecutor can be removed for being critical of her superior's policies. suggest be done. The analysis thus depends on the nature of the position. For that reason, protecting against political discrimination should not be an entitlement in every instance.

Such an analysis may legitimately apply in the high school setting as well as at the university level. To test this proposition, we might simply ask whether conservatives would favor the employment of left-wing radicals for high school teaching positions or university professorships, notwithstanding their politics.

What about those students who feel their speech has been suppressed by the political views of their teachers and their fellows. It may be legitimate to criticize those who are intolerant, those who would be so quick to label others as racists for example, but what would the political right do? Should the professor be obliged to be open to all views and punish those in his class who label others as racists? In that instance, what about the rights of the professor or the other students to free speech? To ask the question is then to answer it. What should we do? We do nothing. Free speech works. The marketplace of ideas renders some opinions worthy, others not. If the professor decides not to teach a course or the student doesn't speak because he or she fears criticism, so be it. There can hardly be anything new in all this or anything to fear.

Finally, what about the decision of the moot court board to drop the case of the conflict over the rights of homosexual parents? Well, were anyone's rights infringed? Did anyone have a right to have the particular problem debated? Was this the only problem that could have provided students exercise in constructive lawyering? The answers must be no. In the end, it was the board's independence that was at issue, and they exercised their independence by responding as they did, by giving students a choice.

I know the politically incorrect are concerned with manners. Recently, I found it interesting to sit with two judges who complained about having now to conform their comments in their judge-making. They had to be politically sensitive to the views of woman in sexual assault cases and be circumspect in their language. They also had to be sensitive to minorities. One of the judges is the same judge who I have always known to be a stickler for court decorum. He once sent somebody home for wearing shorts in court. Not being concerned about that individuals rights, I have trouble understanding how he feels himself constrained.

Political correctness is about manners. We now have a revised code of behaviour. Manners have changed over the ages and it does from culture to culture. Political correctness is largely part of a new code of etiquette. Manners may be taught. That some or even most do not like this new code is unfortunate. We should however expect that our public servants, our politicians and judges not to act like boors, even if that were formerly acceptable. That means not making politically incorrect statements. It does not mean that the free speech protection is under attack. It will continue to thrive stronger than ever.

1. An interesting side issue is the application of the First Amendment when the college or university is state-run and when it is private. The right to freedom of speech is simply a guarantee that governments cannot pass laws that limit the rights of persons to speak. It is not about the rights of private entities to control the speech of those under its control. Whether a university or college is private or public, is it not logical to expect that the same principles of freedom of speech apply regardless?