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.