Civil libertarians – who find political correctness as offensive as state-sponsored censorship – can frequently be heard to express the opinion that there is, after all, no constitutional right not to be offended. There are all sorts of annoyances that we can and must put up with as the price…
Civil libertarians – who find political correctness as offensive as state-sponsored censorship – can frequently be heard to express the opinion that there is, after all, no constitutional right not to be offended. There are all sorts of annoyances that we can and must put up with as the price for living in a society with other people.
Why, then, do we bring lawsuits that, at least at first glance, seem directed at fairly trivial transgressions?
Recently, the Indiana Civil Liberties Union brought a lawsuit against a school corporation for expelling a fifth-grade boy because he wore an earring. A pending lawsuit by the Michigan Civil Liberties Union challenges the refusal of the State of Michigan to issue a license plate reading “4 RU486,” on the grounds that it would be “offensive” to some who might read it. And every holiday season, it seems, there is a lawsuit somewhere challenging government for erecting a creche or menorah on public property.
Aren’t these really de minimus violations of the Constitution? Why don’t we cranky civil libertarians just get a life and overlook these things? Or to frame the issue in more neutral terms, what is the proper balance between reflexive litigiousness and appropriate recourse to the law?
There is no easy answer to that question. A violation which may seem trivial or unimportant to me may seem quite significant to you, or vice versa. Nevertheless, it is possible to establish some standards for determining whether a wilful violation of individual rights warrants legal action. I would suggest two: the principle involved must be a significant one, even if the manifestation is not; and the case should offer an opportunity for wider education about that underlying principle.
In each of the examples given. the principle is the same: How much authority should government be given? Can a local school board decide to expel male students (but not female students) because members do not approve of boys wearing earrings? Who shall have authority over a child’s appearance – his parents or an agency of local government? In the absence of any misbehavior (and assuming all important body parts are covered!) how far do we let the government go?
Once the state decides to issue “vanity” license plates with messages on them, can it approve the messages it likes but not others? Can it make those decisions based upon political content?
Do we want government to have the power to endorse certain religious beliefs and impliedly disapprove others?
Phrased in this way, the issues no longer look so frivolous. People may. agree or disagree about the proper resolution of these issues, but they cannot be dismissed as unimportant.
In each of these and many other cases we are in the same quandry that the schoolboy faces when confronted by the bully on the playground. Do we wait until the bully inflicts real damage before we resist? Or do we draw the line when he just harasses us?
Sheila Kennedy is the Executive Director of the Indiana Civil Liberties Union, headquartered in Indianapolis. The ICLU is an affiliate of the American Civil, Liberties Union. If you do not have a photo on file, please call 317/635-4059. Also, feel free to use statements in this submission as direct quotes.