Wednesday, September 23, 2015

Trump, Political Correctness, and the Public/Private Distinction

by Michael Dorf

My latest Verdict column discusses some constitutional issues raised during and by last week's Republican presidential debate. I don't say much about most of the substance of the debate, which seems to have gelled into the following storyline: Carly Fiorina "won" the debate and is now climbing in the polls, mostly at the expense of Donald Trump, who nonetheless remains the frontrunner--although sophisticated political observers beleive that Marco Rubio is the plausible candidate who benefited most from the debate and from the general torpor of the Jeb Bush campaign and the exit of Scott Walker from the race. Despite the fact that I think the chance of Trump securing the Republican nomination, much less becoming president, is quite small, I continue to find the Trump phenomenon interesting. Here I'll use the latest Trump controversy as the launchpad for some observations about so-called political correctness.

As was widely reported, at a Trump rally last week, a supporter stated that Muslims in America--including Preisdent Obama, who is "not even an American"--are "a problem." The questioner then said that "we have training camps" and asked Trump "when can we get rid of them?".  Trump responded that he's been hearing similar things and he's looking into it. Trump was widely criticized for failing to correct the questioner's assertions about Obama's religion and nationality, though was subject to less criticism for seeming to take seriously the questioner's policy suggestion to "get rid" of American Muslims.

How? By mass deportation? Genocide? I suppose the questioner could have meant--and/or Trump could have understood him to mean--that the U.S. ought to be getting rid of terrorist training camps (where?) rather than getting rid of Muslim Americans. Still, the questioner opened that "we have a problem in this country; it's called Muslims," and so a candidate who was interested in opposing rather than courting bigotry would certainly have clarified that he's against painting with the broad brush that the questioner was using.

Needles to say, Trump did no such thing. Instead, Trump quickly resorted to his go-to move when someone objects to the latest offensive thing he has said: He labeled the complaint "political correctness." Here is an n-gram chart I created for the term "politcally correct" using Google Books.

A nearly identical graph appears for "political correctness." As you can see, the term "politically correct" doesn't really exist until 1980, then skyrockets into the 1990s, peaking in 1997. A similar pattern appears for "politically incorrect" but it continues to rise for a few more years before falling, perhaps because of conflation caused by the Bill Maher show "Politically Incorrect." In any event, it is clear that by complaining about political correctness, Trump is making a somewhat stale charge.

Perhaps recent controversies over so-called "trigger warnings" (criticized here by one of my Verdict colleagues and discussed sympathetically here by one of my Cornell philosophy department colleagues) give it new salience, but I don't think that Trump's core audience has even heard about, much less is reacting to, the trigger warning controversy. Given the demographics, I think it much more likely that anyone for whom the Trump anti-political correctness message resonates has a more traditional, i.e., 1990s-style, objection to political correctness: They don't like that they can't say offensive things about women and members of minority groups.

But of course they can say whatever they want. Unlike other constitutional democracies, the U.S. doesn't restrict hate-speech and cannot do so under the First Amendment (as construed by the Supreme Court). When people complain about political correctness they don't mean that the government is censoring their speech. They mean that private actors are.

In most other contexts, however, conservatives reject the notion of allowing people to assert against private actors the same sorts of rights that they can assert against the government. For example, if private protesters intimidate doctors so that abortion becomes effectively unavailable in a state or region, conservatives (and for the most part the case law) will say that this is not a violation of the right to abortion because that is a right against state action, not private action. Likewise, old-fashioned conservatives (and hard-core libertarians) oppose public accommodations laws that extend public anti-discrimination norms to private businesses.

Some progressives (but not all liberals) have sometimes criticized the tendency of American law to draw a sharp public/private distinction. Threats to rights (or at least to the interests that give rise to those rights) can come from private actors, they say, and in a complex society such as ours, all private action occurs against a backdrop of regulation that at least facilitates it. At least since the Progressive era (fittingly enough), progressives have argued for extending many of the norms we apply to limit the state so that they also limit private actors.

Seen in the light of progressive efforts to explode the public/private distinction, the right's complaints against political correctness can thus be seen as progessive--even though in substance they are anything but.

Postscript: Although this post is going up at 7 am on Wed., Sept. 23, I wrote it earlier. I'll be atoning for my (many) sins today, so I won't respond to comments.


Shag from Brookline said...

Mike in his Verdict column on Trump and Fiorina somewhat excuses them on their constitutionality: "Neither has been to law school ...." Jeffrey Sonnenfeld's Politico article "Why I Still Think Fiorina Was a Terrible CEO" refers to Fiorina's "rags to riches" claim "from secretary to CEO," pointing out: "She just worked for a few months as a receptionist after dropping out of UCLA law school." Perhaps she dropped out without taking con/law.

I don't think this calls for atoning on Mike's part, especially since his Verdict column was otherwise on target.

David Ricardo said...

The activities of the last several months in the Republican campaign are strong evidence progressives should not move to regulate private speech or political correctness from private parties. The pronouncements of the Republican candidates have done more than any argument by the rest of us to demonstrate their sheer hypocrisy and lack of intelligence or even basic understanding of the Constitution and the rule of law.

Consider the following (not a complete list as space does not allow).

1. Donald Trump, the leader (thus far, not for long) in the polls professing a policy to round up US citizens and deport them to the country of their parents.
2. Ted Cruz pronouncing Supreme Court justices to be acting ‘illegally’.
3. Mike Huckabee stating that the Dred Scott decision is still the law of the land.
4. Carly Fiorini outright lying about the existence of a video tape.
5. Scott Walker (gone and forgotten) basing a campaign on the destruction of public and private unions.

The examples are almost endless and after the Republican campaign if one of them is elected no one can say they didn’t know.

And a special vote of thanks to Dr. Carson, who as one observer notes demonstrated that it turns out you don’t have to be smart to be a brain surgeon and thus has relieved all of us of having to use the clich√© about a simple task, “It’s not brain surgery” because as it turns out if you are stupid (I know, not PC but sometimes the truth isn't) you can do brain surgery. I think we can still use “It’s not rocket science” though until the Ben Carson of rocketry comes along.

Shag from Brookline said...

"Hoist by his own petard" comes to mind as Trump gets repetitive and more boring. He may claim Rick Perry and Scott Walker's scalps and soon Bobby Jindal and Mike Huckabee. But as the number of contenders diminishes, Trump sticks out as repetitive and even more boring. Does Trump really want to be President? How much of his own wealth is he really prepared to spend? If he doesn't prevail in getting the Republican nomination, will that make him a "loser" in the manner in which he has used the term on others? Can Trump afford to be branded as a "loser"? What might happen to his brand? If Trump fails to get the GOP nomination, he just might have to go third party in an effort to maintain or resuscitate his brand. But in the end would he be forever a "loser"?

Shag from Brookline said...

Trump is an outsider, who has an MBA. Carly Fiorina is an outsider also with an MBA. They clashed at the debate over which of them was successful in business. Fiorina gained at the CNN debate supposedly by castrating Trump. But Fiorina's gains may be temporary as more media focused on her business career. More revelations have followed Sonnenfeld's Politico article that Fiorina's campaign futilely attempted to challenge with another personal attack on Sonnenfeld. Keep in mind that George W was our first MBA President, but he had political experience. And how did that turn out?

In any event, though this post addresses Trump and PC, I feel obliged to tie-in Fiorina to Trumpian methods with this contribution:

(Secretary to CEO)

Watching Carly Firoina
Spin like a ballerina
Her “success” in the business arena:
Mushy like a bowl of farina.

September 21, 2015

Voters need a BULLS**T detector. If and when Trump and Fiorina (and add Carson) exit, unfortunately there is no cream to rise to the top.

Unknown said...

In case You come back and read this later, Professor, shona tova.

Shag from Brookline said...

The media, once known as the Fourth Estate, has bought into Trump. A second summit meeting is to be held by Trump with Roger Ailes of Fox News. Can we trust the Fox to guard the chicken little house of the GOP candidates? Consider the competition between Fox and CNN regarding their respective GOP debates. Where was the public good served? Trump threatens and Ailes jumps because of potential ratings impacts. Trump idly threatens to take Rich Lowry to the FCC for his remark that Carly Fiorina castrated Trump at the CNN debate. Trump contends that PC would deprive him of responding to Fiorina's surgery and that would be unfair for the rich, handsome, sexy Donald Trump. Maybe after this campaign is over we can expect a book on "THE UNMAKING OF THE MEDIA 2016." It is not just Congress that is dysfunctional. The media is letting Trump pull its strings, coincidentally improving its bottom line.