Third Party & Independents Archives

The Illegitimate Birth of Political Correctness

In the aftermath of World War I, Supreme Court Justices Holmes and Brandeis realized that speech could be used to express ideas that were loathsome to the vast majority of American citizens. However, they subscribed to the belief that loathsome speech merits the same constitutional protections as admired speech and brilliantly defended the rights of all Americans to express themselves freely. In its craven prostration before the altar of political propriety this courageous sentiment is sorely lacking from today’s Court.

After Brandeis and Holmes left the bench, their beliefs were put to the test again during the Cold War, only instead of prohibiting "seditious" speech on the street corner, as they did during World War I, state and federal governments banned it from the workplace. In the anti-Communist hysteria after World War II, the Smith Act, the McCarren Act, the Communist Control Act, and various state and federal programs that mandated loyalty oaths all proscribed the employment of individuals who advocated the violent overthrow of the United States government. Among the most controversial of these legislative enactments was New York's Feinberg Law of 1949. This law barred from employment as a teacher in the New York public school system any person who advocated or taught the overthrow of the United States government by force or violence, or belonged to an organization that did so either currently or previously. At first, the Supreme Court upheld most of these laws. As the Communist panic waned throughout the late 1950s and 1960s, however, they were all overturned. Finally, in 1967, the Supreme Court even invalidated the Feinberg Law with Justice William Brennan calling it "a highly efficient in terrorem mechanism".

Today, the freedom of expression within the workplace is under attack again, this time by the sexual and racial McCarthyites of the political left. Much like the original McCarthyites who demanded fealty to the economic and political dogmas of capitalism and democracy and sought to stifle all civic dissent, today's tyrannical federal bureaucrats who espouse the dogmas of social decorum and equality seek to stifle sexual and racial dissent within corporate America. Rather than repressing the freedom of American Communists and anarchists to express their opinions within the workplace, they repress the freedom of expression for American racists, misogynists, ethnic chauvinists and homophobes. Instead of enacting a Feinberg law to protect New York's schoolchildren, these neo-McCarthyites have subverted a landmark of federal civil rights legislation in order to suppress contrary opinions and ostensibly protect American workers from ideas and that they find to be either repugnant or dangerous.

Ironically, the "highly efficient in terrorem mechanism" they have expropriated is Title VII of the Civil Rights Act of 1964, a law that was a legislative victory for every American opposed to bigotry within the workplace. The doctrinaire zealots of anti-discrimination in the Equal Employment Opportunity Commission (EEOC), however, have usurped this law and imposed federal censorship within the workplace by misconstruing the original intent of one small section of the statute. The clause they misinterpret intentionally pertains to hiring and firing practices and states,

"It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."

The EEOC has altered the application of this law by redefining the obvious intent of the phrase "conditions . . . of employment" from its common and logical definition of "hiring practices" to include the nature of the workplace environment itself. In so doing, they discovered a device that they could employ to impose a prior restraint against discriminatory speech and thereby obtrude their rigid social credo into the workplace environment. Presumably, if Congress had intended to pass a law that prohibited some form of speech within a specific environment, such as the workplace, in 1964 or at any time thereafter, it would have done so. It is absolutely certain, however, that the Civil Rights Act of 1964, either in its original purpose or in its intended effect, was NOT such a law.

By intentionally subverting this phrase, the EEOC has expanded the authority granted to it by Title VII and rewritten the law from one that prohibits discriminatory employment practices to one that proscribes the expression of discriminatory opinions within the workplace. Even its name belies this usurpation: it is the Equal Employment Opportunity Commission, not the Equal Employment Environment Commission.

The puritans of the EEOC began their a priori censorship of discriminatory speech in the workplace in 1980 by defining sexual harassment as:

"Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature . . . ." [emphasis added]
Obviously, unwelcome sexual advances, as forms of assault, and requests for sexual favors, as forms of extortion, are clearly examples of pernicious and illegal harassment. As it pertains to the freedom of speech, however, the key issue concerns the final clause of this definition. Specifically, it pertains to the EEOC's distinction between verbal and physical conduct. If "verbal conduct" is speech, as it must be, then the EEOC's 1980 definition of sexual harassment must be a prima facie violation of the First Amendment.

Racism, sexism, homophobia and ethnocentricity and religious intolerance may be particularly abhorrent social philosophies, but regardless of the emotional distress their espousal might cause an employee, and notwithstanding the opinions of leftist ideologues imbued with legal power, their expression cannot be made illegitimate within a free society. Derogatory verbal conduct of a religious, ethnic, sexual or racial nature that substantiates or even advocates an illegal action, such as either direct or tacit discrimination within the workplace, serves an illegitimate purpose and must be proscribed. Derogatory verbal conduct that merely expresses offensive or repulsive personal opinions, regardless of the nature of those opinions, the hostility of the environment they engender, or the emotional distress they may inflict upon their audience, does not and cannot. Hence, the EEOC's definition of sexual harassment as verbal conduct of a sexual nature contains a prior restraint against free speech that is unconstitutionally indiscriminant.

By including "verbal . . . conduct of a sexual nature" in its definition of harassment, the EEOC has defined the term too broadly and transformed Title VII of the Civil Rights Act into a modern version of the Feinberg Law. As New York schoolteachers could not embrace or espouse the principles of an aberrant political philosophy during the Cold War, so too contemporary workers cannot embrace or espouse the principles of an aberrant social philosophy today. In the prescient words of Justice Hugo Black in his famous dissent in Alder v. Board of Education, the EEOC has transmuted a law intended to promulgate civil rights throughout the United States into another of:

". . . those rapidly multiplying legislative enactments that make it dangerous . . . to think or say anything except what a transient majority thinks at the moment. . . . [P]ublic officials cannot be constitutionally vested with powers to select the ideas people can think about, censor the public views they can express, or choose the persons or groups people can associate with. Public officials with such powers are not public servants; they are public masters."

Surely in this instance, therefore, the Supreme Court would recognize the EEOC's unconstitutional incursion into the American workplace. Surely it would rule that prohibiting "verbal . . . conduct of a sexual nature" was an unconstitutional restraint of free speech. After all, as Justice Brennan had written in 1963:
"Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity."

In a remarkable piece of judicial legislation, however, an activist Supreme Court allowed the EEOC to transform the Civil Rights Act of 1964 into the Anti-Discriminatory Speech in the Workplace Act of 1986. In the case of Meritor Savings Bank v. Vinson, it affirmed the EEOC's authority to proscribe speech within the workplace. In so doing, it fabricated a lower threshold of unconstitutionality in the restraint of socially repugnant speech than in the restraint of politically repugnant speech and opened the Orwellian specter of thought control within the workplace.

Ironically, the author of this repressive opinion was none other than William Rehnquist, an alleged paragon of judicial restraint. In his remarkable opinion, he first ignored the intent of Congress when it enacted the Civil Rights Act of 1964, as well as the language of the Act itself, and permitted the EEOC to regulate the workplace environment. Then he discovered a new right for employees; one that superseded the freedom of speech guaranteed by the First Amendment and had not been present in the Constitution heretofore. In an amazing example of judicial activism, he granted

". . . employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult."
He did not address from whence this novel right had originated, however, nor where it existed within the Constitution. Apparently, the EEOC had simply made it up, and that was good enough for him. Then, as a pièce de résistance, Justice Rehnquist wrote that he wasn't defining the word "free" in its most common and absolute sense of totally unencumbered but rather in some vague and undefined relative sense. For example, the
". . . 'mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee' would not affect the conditions of employment to [a] sufficiently significant degree to violate Title VII."

We were left to ourselves to wonder who would determine the arbitrary and subjective standard of the "sufficiently significant degree" of utterances that would constitute harassment and, hence, permit the censorship of opinion within the American workplace. We were left to ourselves to presume that the phrase "except for speech that creates a hostile workplace environment" had been inserted into Rehnquist's copy of the First Amendment surreptitiously. We were left to ourselves to speculate as to the quality and quantity of the epithets that would justify a prior restraint against speech and the suspension of the First Amendment within the workplace. And we have been wondering, presuming and speculating ever since.

In 1919, Justice Holmes wrote,

"Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart, you naturally express your wishes in law and sweep away all opposition. . . . But when men have realized that time has upset many fighting faiths, they may come to believe . . . that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market."
It is sadly ironic that the same Court from which these words were written now sanctions a de facto witch-hunt for racists, misogynists, homophobes, and ethnocentric and religious chauvinists within the marketplace itself. The vast majority of Americans reject these social philosophies as patently ridiculous and finds their espousal to be idiotic, offensive and repulsive. Nevertheless, our government cannot forbid discriminatory intimidation, ridicule and insult anywhere within a free society because we fear an offense to our sensibilities and yet remain free.

Posted by Chuck Hanrahan at August 5, 2005 10:42 AM