How many times have we heard someone defend a racist, belittling or otherwise nasty tweet or Facebook post by claiming that critics were attacking his or her “First Amendment rights”?
The First Amendment may protect that person’s right to spew vitriol against government censorship, but it also protects the speaker’s critics–including, for that matter, decisions to fire the speaker from a private-sector position. Beyond that widespread misunderstanding of just what it is that Freedom of Speech protects, however, is a lack of appreciation of the important role of civility in America’s marketplace of ideas.
I recently participated in a “civility training” for Women4Change Indiana, and dug out a brief introduction to the topic that I had delivered a couple of years ago. Given how very un-civil American discourse has become, I thought it might be timely to share.
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Twenty-five years ago, when I was Executive Director of Indiana’s ACLU, I mounted a campaign to promote civility and a more civil discourse. Several members let me know that they were upset, because they were convinced that an emphasis on civility somehow undermined, or was evidence of less than robust support for, Free Speech.
That misunderstanding is evidently shared by the Neo-Nazis who marched in Charlottesville, the creators of racist, homophobic and anti-Semitic websites, and participants in proliferating Facebook confrontations and Twitter wars. They defend vitriol as “Free Speech;” and disparage and dismiss civility as “political correctness.”
They couldn’t be more wrong.
This nation’s Founders understood that all ideas, no matter how noxious, should be available for discussion.They didn’t protect speech because they underestimated the danger bad ideas could pose; they knew how powerful –and dangerous–words and ideas could be. They protected free expression because they understood that giving government the authority to decide which ideas are acceptable—to decide what sort of speech should be permitted– was far more dangerous.
But that’s where civility comes in. If free speech is to achieve its purpose—if it is meant to facilitate a process in which citizens consider and vet all ideas, consider all perspectives—we need to listen to each other. Insults, labeling, dismissing, racial “dog whistles”—all those hallmarks of incivility—make it impossible to have the kinds of genuine conversations and productive disagreements that the First Amendment is intended to foster.
Screaming invective across political or religious divides actually undermines the purpose of the First Amendment’s Free Speech provisions. Is such speech protected? Absolutely. Is it useful? Absolutely not.
There are multiple reasons for the recent rise in incivility, but the anonymity and distance afforded by the internet and social media is clearly an important contributor. As many of you know, I have a daily blog, and I’ve found it necessary to impose standards of conduct for commenters. Civil disagreements are encouraged; ad hominem attacks, personal nastiness and unrepentant bigotry are not welcome and will not be tolerated– not just because they are unpleasant and hurtful, but because people engaging in those behaviors derail the substantive and instructive disagreements that people with different perspectives need to explore if we are going to live and work together.
Responding to a Facebook argument or Twitter blast with an insult may make you feel better, but it doesn’t advance the conversation, and it certainly doesn’t count as participation in the marketplace of ideas.
IU Northwest sponsored several lectures during its recent Public Affairs Month. I was asked to participate; here is the talk I gave, slightly edited for length. (Regular readers will notice considerable repetition of themes I revisit often.)
Americans talk a lot about civic engagement. What we don’t talk much about is civic literacy, and why effective engagement requires that we understand how our government is supposed to function.
In fact, in the wake of the last election, we are just beginning to understand the extent to which civic engagement depends upon two characteristics of the American polity that are currently in dangerously short supply: a basic understanding of the American constitution and legal system—what I call civic literacy—and the old-fashioned but essential virtue of civility.
Over the past several years, America’s political environment has become steadily more toxic. Partisan passions and previously suppressed bigotries have erupted, overwhelming reasoned analysis. Cable television and the Internet allow people to choose their news; it encourages citizens to indulge in confirmation bias and construct their own preferred realities. During the 2016 election cycle, voters often seemed more interested in scoring points than engaging in substantive conversation. Civility was scorned as “political correctness” and racist and misogynist expression was excused as “telling it like it is.”
As discouraging as today’s incivility is, I am firmly convinced that a significant amount of the rancor and partisan nastiness we see comes less from actual differences of opinion and more from a tribalism that is abetted by civic illiteracy—widespread ignorance of the history and basic premises of American government. Clearly, in our age of high-stakes testing, schools are shortchanging civic education.
Why does civic literacy matter?
For one thing, when citizens don’t understand America’s foundational values and legal system, they don’t share a standard by which to evaluate the promises of candidates or the performance of public officials. During Donald Trump’s campaign for President, for example, he promised to uphold “Article 12” of the Constitution—an article that doesn’t exist. He said he would “make all Muslims register,” which would be a blatant violation of the First and Fourteenth Amendments. He was going to institute a national “stop and frisk” program that would have violated the 4thAmendment, and he accused Clinton of planning to unilaterally “get rid of” the Second Amendment—something she couldn’t legally do. (There’s a constitutionally-prescribed process for changing the constitution.) Since the election, his ignorance of such constitutional basics as separation of powers, Executive pardons, and freedom of the press have become even more obvious. Recently, he suggested that Congress could pass a law to overturn a Supreme Court decision that the line-item veto was unconstitutional.
Competent citizens would recognize situations in which a public official is betraying a total lack of familiarity with the Constitution and legal system he is sworn to uphold. Clearly, millions of Americans didn’t recognize that incongruity and unfamiliarity. Citizens’ ignorance is especially corrosive in a country as diverse as the U.S., because commitment to our Constitutional system is what unites us—it is what makes us Americans, rather than a collection of constituencies contending for power.
Only 26 percent of Americans can name the three branches of government. Fewer than half of 12th graders can describe federalism. Only 35% can identify “We the People” as the first three words of the Constitution. Only five percent of high school seniors can identify or explain checks on presidential power.
We can’t fix what we don’t understand.
Productive civic engagement is based on a basic but accurate understanding of the “rules of the game,” especially but not exclusively the Constitution and Bill of Rights– the documents that frame and constrain policy choices in the American system.
Pundits and politicians have spent the last thirty plus years denigrating both government and public service to citizens who are increasingly ill-equipped to evaluate those criticisms. With the current administration, we are paying the price for our neglect of civic education—not to mention our unwillingness to defend the importance and legitimacy of government and collective action supporting the common good.
The American Constitution was a product of the 18thCentury cultural, intellectual and philosophical movement known as the Enlightenment. Many people know that the Enlightenment gave us science, empirical inquiry, and the “natural rights” and “social contract” theories of government, but what is less appreciated is that the Enlightenment also changed the way we understand and define human rights and individual liberty. Very few students—even graduate students—enter my classroom with any knowledge of the ways in which this enormously consequential period of intellectual history shaped the United States.
Students are taught in school that the Puritans and Pilgrims who settled the New World came to America for religious liberty; what they aren’t generally taught is how those settlers definedthat liberty. Puritans saw liberty as “freedom to do the right thing”—freedom to worship and obey the rightGod in thetruechurch, and their right to use the power of government to ensure that their neighbors toed the same line. The Founders who crafted our constitution some 150 years later were products of an intervening paradigm shift brought about by the Enlightenment, which ushered in a dramatically different definition of liberty: personal autonomy. Liberty became your right to do your ownthing, free of government interference, so long as you did not harm the person or property of someone else, and so long as you were willing to accord an equal liberty to others.
America’s constitutional system is based on an Enlightenment concept we call “negative liberty.” The Founders believed that fundamental rights are not given to us by government; instead, they believed that rights are “natural,” meaning that we are entitled to certain rights simply by virtue of being human (thus the term “human rights”) and that government has an obligation to respect and protect those inborn, inalienable rights.
Contrary to popular belief, the Bill of Rights does not grant us rights—it protectsthe rights to which we are entitled by virtue of being human against infringement by an overzealous government. The American Bill of Rights is essentially a list of things thatgovernment is forbidden to do.For example, the state can’t dictate our religious or political beliefs, search us without probable cause, or censor our expression—and government is forbidden from doing those things even whenpopular majorities favor such actions.
In our system, those constraints don’t apply to private, non-governmental actors. As I used to tell my kids, the government can’t control what you read, but your mother can. Public school officials can’t tell you to pray, but private or parochial school officials can. If government isn’t involved, neither is the Constitution. Private, non-governmental actors are subject to other laws, like civil rights laws, but since the Bill of Rights only restrains what government can do, only government can violate it. I’m constantly amazed by how many Americans don’t understand that. (It’s quite obvious that Donald Trump doesn’t.)
Unlike the liberties protected against government infringement by the Bill of Rights, civil rights laws represent our somewhat belated recognition that if we care about human rights, just preventing government from discriminating isn’t enough. If private employers can refuse to hire African-Americans or women, if landlords can refuse to rent units in multifamily buildings to LGBTQ folks, if restaurants can refuse to serve Jews or Muslims, then society is not respecting the rights of those citizens and we aren’t fulfilling the obligations of the social contract that was another major contribution of Enlightenment philosophy.
The Enlightenment concept of human rights and John Locke’s theory of a social contract between citizens and their government challenged longtime assumptions about the divine right of the kings. Gradually, people came to be seen as citizens, rather than subjects. This new approach helped to undermine the once-common practice of assigning social status on the basis of group identity. It also implied that citizens have an affirmative responsibility to participate in democratic decision-making.
The once-radical idea that each of us is born with an equal claim to fundamental rights has other consequences. For one thing, it means that governments have to treat their citizens as individuals, not as members of a group. America was the first country to base its concept of citizenship on an individual’s civic behavior,rather than gender, race, religion or other identity or affiliation. So long as we obey the laws, pay our taxes, and generally conduct ourselves in a way that doesn’t endanger or disadvantage others, we are all entitled to full civic equality, no matter what our race, religion, gender, sexual orientation or other identity. When our country has lived up to that guarantee of equal civic rights, we have unleashed the productivity of previously marginalized groups and contributed significantly to American prosperity. And I think it is fair to say that—despite setbacks, and despite the stubborn persistence of racial resentment, religious intolerance and misogyny, we have made substantial progress toward creating a culture that acknowledges the equal humanity of the people who make up our diverse nation.
That brings us back to civic engagement, because in addition to equality before the law, respect for rights also requires democratic equality—an equal right to participate in the enterprise of self-government. We now recognize—or at least give lip service to—the proposition that every citizen’s vote should count, but on this dimension, we not only aren’t making progress, we’re regressing, as anyone who follows the news can attest.
One element of civic literacy that gets short shrift even among educators is the immense influence of systems in a society—an appreciation of the way in which institutions and conventions and laws shape how we understand our environments. Right now, a number of longstanding, systemic practices are obscuring the degree to which American democracy is becoming steadily less democratic—and the extent to which we are denying citizens the right to participate meaningfully in self-government.
Vote suppression has been on the rise, especially but not exclusively in Southern states that have not been required to get preclearance from the Justice Department since the Supreme Court gutted the Voting Rights Act. Thanks to population shifts, the current operation of the Electoral College gives disproportionate weight to the votes of white, rural voters, and discounts the franchise of urban Americans. (Estimates are that each rural vote is worth 1 1/3 of each urban vote). Unequal resources have always been a political problem, but ever since Buckley v. Valeo, which equated money with speech,and especially since Citizens United, which essentially held that corporations are people, money spent by special interests has overwhelmed the votes and opinions of average citizens. The outsized influence of the NRA is a recently prominent example.
The most pernicious erosion of “one person, one vote” however, has come as a consequence of gerrymandering, or partisan redistricting. There are no “good guys” in this story—gerrymandering is a crime of opportunity, and both parties are guilty.
Those of you in this room know the drill; after each census, state governments redraw state and federal district lines to reflect population changes. The party in control of the state legislature at the time controls the redistricting process, and its legislators draw districts that maximize their own electoral prospects and minimize those of the opposing party. Partisan redistricting goes all the way back to Elbridge Gerry, who gave Gerrymandering its name—and he signed the Declaration of Independence—but the process became far more sophisticated and precise with the advent of computers, leading to a situation which has been aptly described as legislators choosing their voters, rather than the other way around.
Academic researchers and political reformers alike blame gerrymandering for electoral non-competitiveness and political polarization. A 2008 book co-authored by Norman Orenstein and Thomas Mann argued that the decline in competition fostered by gerrymandering has entrenched partisan behavior and diminished incentives for compromise and bipartisanship.
Mann and Orenstein are political scientists who have written extensively about redistricting, and about “packing” (creating districts with supermajorities of the opposing party) “cracking” (distributing members of the opposing party among several districts to ensure that they don’t have a majority in any of them) and “tacking” (expanding the boundaries of a district to include a desirable group from a neighboring district). They have tied redistricting to the advantages of incumbency, and they have also pointed out that the reliance by House candidates upon maps drawn by state-level politicians has reinforced what they call “partisan rigidity” –the increasing nationalization of the political parties.
Interestingly, one study they cited investigated whether representatives elected from districts drawn by independent commissions become less partisan. Contrary to the researchers’ initial expectations, they found that politically independent redistricting did reduce partisanship, and in statistically significant ways. Even when the same party maintained its majority, elected officials were more likely to co-operate across party lines.
Perhaps the most pernicious effect of gerrymandering is the proliferation of safe seats.The perception that some seats are “safe” for one party or another breeds voter apathy and reduces political participation. After all, why should citizens vote, or get involved, if the result is foreordained? Why donate to a sure loser? (For that matter, unless you are trying to buy political influence for some reason, why donate to a sure winner?) What is the incentive to volunteer or vote when it obviously won’t matter? It isn’t only voters who lack incentives for participation, either: it becomes increasingly difficult for the “sure loser” party to recruit credible candidates. As a result, in many of these races, voters are left with no genuine or meaningful choice—the perception of inevitability ends up creating the reality, because if everyone in a safe district were to vote, it probably wouldn’t be safe.
Ironically, the anemic voter turnout that gerrymandering produces leads to handwringing about citizen apathy, usually characterized as a civic or moral deficiency. But voter apathy may instead be a highly rational response to noncompetitive politics. People save their efforts for places where those efforts count, and thanks to the increasing lack of competitiveness in our electoral system, those places often do not include the voting booth.
If the ability to participate meaningfully in self-governance is a bedrock of democracy, partisan game-playing that makes elections meaningless should be seen as an assault on both democracy and the American system.
Safe districts do more than disenfranchise voters; they are the single greatest driver of governmental dysfunction. In safe districts, conventional wisdom has convinced us that the only way to oppose an incumbent is in the primary–and that almost always means that the challenge will come from the “flank” or extreme. When the primary is, in effect, the general election, the battle takes place among the party faithful, the so-called “base”—and they tend to be the most ideological voters. So Republican incumbents are challenged from the Right and Democratic incumbents are attacked from the Left. Even where those challenges fail, they create a powerful incentive for incumbents to “toe the line” in order to placate the most rigid elements of their respective parties. Instead of the system working as intended, with both parties nominating candidates they think will be able to appeal to the broad middle, the system produces nominees who represent the most extreme voters on each side of the philosophical divide. If you wonder why Republicans in Congress aren’t standing up to President Trump, the answer is that they are in effect being held hostage by that party “base”—a small group of empowered, rigidly ideological voters intent on punishing any deviation from orthodoxy and/or any hint of compromise.
Of course, vote suppression and civic ignorance aren’t the only reasons for a lack of civic engagement. There are other challenges to equal political participation. Poverty is one. A citizen working two or three jobs just to put food on the table doesn’t have much time for civic engagement, and in Indiana, that’s a lot of people.
Poverty and the growing gap between rich and poor threatens social stability and democratic decision-making in a number of ways, but one clear effect is that people engaged in a daily struggle for subsistence are unable to participate fully in the political activities that characterize democratic societies, and as a result, the national political conversation is skewed. The voices of the poor aren’t heard.
Poverty and inequality are huge problems in America right now, but they certainly aren’t our only challenges. Climate change, the loss of jobs to automation, the worrisome tribalism and racism that is tearing at our national fabric, inadequate funding of public education, the multiple, obvious flaws in our justice system…a majority of Americans realize that these and other major problems—far from being solved or even addressed—are being exacerbated by an administration that ranges from inept to corrupt.
Let me end by acknowledging that the 2016 election has also had positive consequences: for one thing, this administration’s bumbling is reminding the American people of the importance of competent government, and the damage that can be done when those in office have no idea what they are doing. The election has also rebutted—pretty conclusively— the widespread belief that any successful businessperson or celebrity can run the government. People who would never go to a dentist who hadn’t gone to dental school or filled a cavity were nevertheless perfectly willing to turn the nation and the nuclear codes over to someone who had absolutely no experience with or knowledge of government. We shouldn’t be surprised by the result.
Most important, however, the election unleashed more civic engagement and political activism than I’ve seen in my adult life.
The question is, can this impressive wave of civic engagement turn the tide? Can engaged Americans reverse the declines in civility and civic literacy, and reinvigorate the American idea?
Reviving America’s democratic norms, turning back the assaults on the rule of law and equal access to the ballot box, fixing the gerrymandering that feeds apathy and makes too many votes meaningless…the list of needed repairs to the system is long, and it will require political action and persistent civic engagement by an informed,civically-literate citizenry.
A few nights ago, I participated in a panel discussion devoted to the revival of civility, as part of the annual Spirit and Place Festival sponsored by IUPUI. The evening began with a soliloquy of sorts on the subject by former Congressman/Statesman Lee Hamilton, then segued to the panel. I’m not sure any of us had especially useful recommendations for how we might inject mutual respect into political conversations, or ensure that those discussions are based upon verifiable fact, but we tried.
Since I have no idea how Americans of good will might revive civility, or rescue it from the Trumpian depths of Twitter and media comments sections, I took a somewhat different approach to the subject, which I am sharing, below.
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When I was asked to participate in this panel, my mind went back twenty years. I was then the Executive Director of Indiana’s ACLU, and I had mounted a major campaign to promote civility and encourage more civil discourse about hot-button civil liberties issues. Several members objected. They let me know that they were upset–that they thought such an effort was inappropriate because they were convinced that an emphasis on civility somehow undermined, or was evidence of less than robust support for, Free Speech.
That misunderstanding is evidently shared by the Neo-Nazis who marched in Charlottesville, the creators of racist, homophobic and anti-Semitic websites, and participants in proliferating Facebook confrontations and Twitter wars. They defend their vitriol as “Free Speech;” and disparage and dismiss civility as “political correctness.”
They couldn’t be more wrong.
This nation’s Founders understood that all ideas, no matter how noxious, should be available for discussion. They didn’t protect speech because they underestimated the danger bad ideas could pose; they knew how powerful –and damaging–ideas could be. They protected free expression because they understood that giving government the authority to decide which ideas are acceptable—what sort of speech should be permitted– was far more dangerous than the bad ideas themselves.
But that’s where civility comes in.
If free speech is to achieve its purpose—if it is meant to facilitate a process in which citizens consider and vet all ideas, consider all perspectives—we need to listen to each other. Insults, labeling, dismissing, racist “dog whistles”—all those hallmarks of incivility—make it impossible to have the kinds of genuine conversations and productive disagreements that the First Amendment is intended to foster.
Screaming invective across political or religious divides actually undermines the purpose of the First Amendment’s Free Speech provisions. Is such speech protected? Absolutely. Is it useful? Absolutely not.
There are multiple reasons for the recent rise in incivility, but the anonymity and distance afforded by the internet and social media are clearly important contributors. As many of you know, I have a daily blog, and I’ve found it necessary to impose standards of conduct for commenters. Civil disagreements are encouraged; ad hominem attacks, personal nastiness and unrepentant bigotry are not welcome and will not be tolerated, not just because they are unpleasant and hurtful, but because people engaging in those behaviors derail the substantive and instructive disagreements that people with different perspectives need to explore if we are going to live and work together.
Responding to a Facebook argument or Twitter blast with an insult may make you feel better, but it doesn’t advance the conversation, and it certainly doesn’t count as participation in the marketplace of ideas.
Defending obnoxious and uncivil behavior as “Free Speech” is the ultimate hypocrisy.
Finally, the alarms are going off in what is left of the rational GOP. The question is: is it too late? Has the party slept through earlier signals and bells, hitting the “snooze” button too often?
Okay, enough with the strained analogy.
Bill Brock recently wrote a “must read” column for the Washington Post. For young people and those with bad memories, Brock, from Tennessee, served as both a Representative and a Senator from that state, and for four years, was Chair of the Republican National Committee.
I am just as concerned about the destructive tone of the Trump campaign as I am about its demagogic content. How can you hear what someone else is saying, no matter how important, when you’re shouting? How can you bring people into a constructive search for solutions to our national problems when you do nothing but belittle them, and even suggest they are stupid, weak or corrupt?
A truly free society, one that gives its citizens the responsibility of participation, can function only to the extent there is civil discourse. We can engage in a mutual search for solutions only to the extent that we agree a problem exists. That can never happen unless we talk to each other, listen to each other and respect the fact that honorable people can reach different conclusions. When that sense of comity is missing, we are at risk.
Before readers dismiss Brock’s column as just one more heart-felt but ultimately feckless appeal for civility, I would call attention to an important paragraph in which he identifies the structural elements—what he calls “root causes”— that have brought us to this (very unpleasant) place in our national life:
Shouting is only part of it. There are also root causes. They include, but are not limited to, the ever-widening gap between our two parties caused by redistricting abuses and the undeniable sense that the election process itself is being swamped by unlimited and too often undisclosed funds from a select few. There is one more I fear — the too-often cable-TV-driven sense that only the dramatic, only the negative, only the ad hominem attack can garner sufficient attention to assure electoral success. The public disgust is palpable, and rightly so, but in a more fundamental sense, the results are disastrous.
Redistricting. Unlimited and unreported money. The rise of sensationalist, propaganda radio and TV.
We can and should do something about these causes of our political pain. It won’t be easy, but we need to move from today’s pervasive gerrymandering to nonpartisan redistricting. We need a Constitutional Amendment to overturn Citizens United, and far more transparency about political funding.
And–most difficult of all, but also perhaps most important–we need to reclaim what has been called the journalism of verification. We need a journalism that fulfills its constitutionally-protected function of acting as government’s watchdog, a journalism that is trusted because it has demonstrated that it is trustworthy.
Let’s take Brock’s wake-up call seriously—and hope that it isn’t too late to restore both civility and a government that functions.
In a response to a prior post–made in the middle of a somewhat heated discussion generated by that post–a commenter complained that his contributions to the debate had simply been ignored by others, even though they’d been accompanied by links to what he described as “liberal” references.
As regular readers of this blog know, I rarely participate in the conversations triggered by my daily posts/rants. (I do read most of the comments.) There are two reasons for that, one practical and one more-or-less philosophical: the practical reason is that I have a day job, and I can’t afford the additional time thoughtful engagement would take; the “philosophical” reason is that the blog is intended to generate responses and in a very real sense, to allow readers to educate me–which many of you, especially my “regulars” regularly do.
But the complaint was that no one was responding to points made by this particular individual, and that such non-responsiveness–at least in the eye of the commenter–was characteristics of the disinclination of “liberals” to engage with those who disagreed.
To the extent that complaint is justified, I don’t think it’s a consequence of political orientation, conservative or liberal. I think the problem is trolls.
I firmly believe that trolls–and this blog has a couple of persistent ones–want nothing more than to stir the pot. They present themselves as angry and troubled individuals whose goals are limited to insulting and “bomb throwing.” For whatever reason (I’m no psychiatrist) they are uninterested in genuine dialogue, so responding to them is a waste of time.
Given the amount of time they spend spewing, it’s a good guess that they don’t have what the rest of us call “lives.”
I firmly believe that responding to such people is counterproductive; it simply draws otherwise reasonable people into whatever game they are playing.
The problem occurs when people who aren’t trolls, but who may have made their points in fairly antagonistic ways, enter the conversation. Readers lump those folks in with the trolls, assume that they are uninterested in real conversation, and thus don’t take what they perceive to be the bait.
This is precisely why civility is so important in this context. When dissenting opinions are offered in a civil fashion, it invites dialogue and engagement. Civility is especially important online, because online discussion doesn’t allow us to see body language or hear tone of voice–the cues that we get in other contexts that flesh out the sender’s intended message and help to prevent miscommunication. It’s really easy to be misunderstood on line (especially for people like me, who tend to be rather snarky), which is why it’s so important to frame our online communications with care, and to avoid sharing our passions in a manner that comes across as offensive or insulting.
If the perfectly appropriate response to trolls–ignoring them–puts a damper on the exchange of ideas between people genuinely interested in engaging in conversation, it may be understandable, but it’s a shame.
