gay couple walks hand-in-hand across campus. A man driving by in a car sees them and shouts, "Fags!" A black student is working late at a local coffee shop. A professor from one of her classes comes in and tries to order a meal. She explains that the coffee shop is closing. He insists, becomes more and more upset until he calls her a "*****" and a "nigger" and stalks away.
Both the gay couple and the young woman have been subjected to extreme verbal abuse. But should the people who said these hateful things be punished? According to Thomas Grey's article, "Civil Rights vs. Civil Liberties: The Case of Discriminatory Verbal Harassment," whether or not the speakers should pay a price for their words depends on whether one adopts a civil liberties point-of-view or a civil rights point-of-view.
The civil liberties point-of-view holds that the speakers, though undeniably obnoxious, did not do any "real" harm. To punish them for their words would be a violation of their rights under the First Amendment.
The civil rights point-of-view disagrees. It holds that members of traditionally stigmatized and marginalized groups like African-Americans, women, and LBGTs (lesbian, bisexual, gay, and transgendered people) have a right to be free of a hostile environment. The speakers violated this right with their hostile, harmful words; therefore, the speakers should face punishment.
Clearly, these are two diametrically opposed points-of-view. In the above mentioned article, Grey briefly outlines some of their major differences. These include disagreements about whether or not "psychic injury" is sufficient reason to curtail the right of free speech; differences in ideal realm of influence (public vs. private); differences in belief about whether or not any viewpoint is incorrect or invalid; and differences in focus (e.g., action vs. speech; consequences of speech vs. content of speech).
Perhaps the most obvious difference between the civil liberties proponents and the civil rights proponents is that the civil liberties proponents think that words have a very limited ability to cause a tangible injury. The government, they argue, has no right or duty to protect people from being offended or getting their feelings hurt. Their philosophy, as explained by Grey, is the classic, "Sticks and stones can break my bones, but words will never hurt me" (p. 339).
Civil rights proponents, however, believe that hateful words do inflict great harm, and that the term "hurt feelings" does not adequately address the agony endured by stigmatized groups. Civil rights proponents argue that, just as one person's right to swing his or her arm stops at another person's nose, so the right of one person to speak his or her mind stops when the words the person utters cause or are likely to cause psychic harm to another person. Or, as Grey explains, "[T]he civil-rights approach, with its roots in anti-discrimination law and social policy, is centrally concerned with injuries of stigma and humiliation to those who are the victims of discrimination -- conduct generating 'feelings of inferiority' that damage 'hearts and minds'..." (pp. 339-340).
Civil liberties and civil rights proponents also differ on the realms they wish to influence. According to Grey, "The active state is traditionally conceived as the sole or dominant threat to civil liberties" (p. 340). Thus, civil liberties proponents generally concern themselves with government or "formal" censorship and make little effort to protect people from "informal" expressions of disapproval.
Civil rights proponents, on the other hand, are concerned with both formal and informal incidences of discriminatory speech. Or, as Grey explains, "This 'anti-discrimination principal' goes beyond cleansing government action of bias; it also attacks discrimination on the suspect bases of race, sex, and so on, in other major institutions of civil society" (p. 340). Civil liberties proponents bristle when private citizens, as well as people acting in an official capacity, are banned from making racist, sexist, or homophobic remarks.
Another difference between the civil liberties and the civil rights perspective lies in the question of whether any viewpoint is so wrong as to be invalid and unacceptable. It should come as no surprise that to civil liberties proponents, the answer is no. After all, we live in a pluralist society with myriad viewpoints. One of the beauties of the Constitution is that it gives people the right to speak their minds without fear of government reprisal. Or, according to Grey, "The First Amendment recognizes no such thing as false ideas" (p. 343). In the eyes of civil liberties proponents, the government cannot and should not interfere with this right of free speech in order to protect the feelings of a stigmatized group. Rather, as expressed by Justice Brandeis, the best cure for hate speech is "more speech, not enforced silence" (qtd. By Grey, p. 343). After all, the argument goes, stigmatized groups also have the right of free speech, and if they disagree with another person's statements, they should speak out themselves rather than trying to silence the person with whom they disagree. Or as Grey states, "If questions that go to the core of human rights and social policy issues cannot be freely debated on campus, what issues can?" (p. 342).
Civil rights proponents take a very different view. To them, some facts are absolute. Two plus two is always four. The earth is always round. And racism, sexism, homophobia, etc. are always wrong. Furthermore, they argue, it is up to the government to protect its marginalized citizens from a hostile environment, not up to the citizens to "dialogue" for their own civil rights. Says Grey, "From the civil rights perspective, there are false ideas and ideologies, among which white supremacy and related forms of bigotry are the paradigm examples" (p. 347).
Another inherent difference between civil liberties proponents and civil rights proponents are differences the different focuses taken by each group in looking at issues of protection. Civil liberties proponents tend to look at speech as distinct from action. Moreover, in the few instances when civil liberties proponents are willing to look at curtailing speech, they look at potential injurious consequences rather than at the content of the speech.
As discussed above, civil libertarians do not consider "psychic injury" to be of the same magnitude as injury to person or property. Words by themselves rarely have the power to cause "tangible" injury (p. 339). Therefore, civil libertarians focus more on how words and action combine to create harmful circumstances. According to Grey, "The civil-liberties analytical framework tends to confine regulation of campus verbal harassment to prohibiting conduct verging on assault..." (p. 343), and later he adds, "[T]he civil libertarian insists that the practice of white (or male, or heterosexual) supremacy must be kept distinct from its preaching; while the former violates the anti-discrimination principle, the latter is protected by the principle of free expression" (p. 348). For instance, in the earlier example of the woman being subjected to racist and sexist epithets, civil libertarians probably would not be willing to intervene if the professor merely shouted the names and stalked out of the coffee shop. If, however, he subsequently banned the student from his class, his actions would create actual harm. Most civil libertarians would agree that the powers-that-be would not overstep their bounds in curtailing his behavior.
Similarly, when civil liberties proponents do look at harmful speech (such as shouting "Fire!" In a crowded theater), they are more concerned with its consequences rather than with its content. Grey explains why a vaguely-worded and expansive University of Michigan anti-harassment policy drew criticism from civil libertarians: "Under current First Amendment doctrine, no restriction focused on the communicative impact of speech is permissible unless it is necessary to prevent serious and eminent harm" (p. 343). Psychic harm not withstanding, verbal harassment is unlikely to result in "serious and eminent" harm and thus cannot be prohibited.
Civil rights proponents see things very differently. First, since they do consider psychic injury to be serious harm, they are more likely to look at words as separate from behavior and to prohibit even "polite" biased speech or speech with no hint of physical threat attached. Grey explains the much-maligned University of Michigan policy from a civil rights perspective: "Viewed solely through the lens provided by anti-discrimination law and policy, the kind of statements to which the regulation was applied might well appear as more polite but no less demeaning versions of the kind of racist, sexist, or homophobic insults routinely prohibited under anti-harassment codes in the employment area" (p. 342).
Similarly, civil rights proponents tend to look at the content of speech rather than at its potential for serious and eminent harm. In the example of the man hurling epithets at the gay men walking hand in hand, for instance, the risk of physical harm is fairly low. After all, the harasser is outnumbered two to one, and unless he has a weapon like a slingshot or a gun, he will need to park his car before he can even begin to think about causing harm to the…