Tuesday, December 20, 2016

Legal Origins of Political Correctness

During the recent presidential campaign, there was a lot of talk the evil of “political correctness” or (PC).  A lot has been said about this concept on social media, and I got to thinking about the legal applications of what PC means. This post is my first look the concept from a legal perspective and looks briefly at the legal origins and applications of the idea. 

Speechwriter (and author and columnist) Barton Swaim has said that “Political correctness is an insidious presence in American life.” PC is generally seen (and criticized) as a product of the political left. 

And the political right has a companion, “patriotically correct,” and that idea was recently explained in a popular article by Alex Nowrasteh, an immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity. Nowrasteh notes that political correctness has been a “major bugaboo of the right” in recent years and explains:

[C]onservatives have their own, nationalist version of PC, their own set of rules regulating speech, behavior and acceptable opinions. I call it “patriotic correctness.” It’s a full-throated, un-nuanced, uncompromising defense of American nationalism, history and cherry-picked ideals. Central to its thesis is the belief that nothing in America can’t be fixed by more patriotism enforced by public shaming, boycotts and policies to cut out foreign and non-American influences.

As for a definition of political correctness, I will borrow from Swaim again:

Political correctness, if I could venture my own admittedly rather clinical definition, involves the prohibition of common expressions and habits on the grounds that someone in our pluralistic society may be offended by them. It reduces political life to an array of signs and symbols deemed good or bad according to their tendency either to include or exclude aggrieved or marginalized people from common life.

But where did the concept come from? The first cited U.S. legal use of it appears to be one of the foundational Supreme Court cases, which ultimately led to passage of the Eleventh Amendment, states:

Sentiments and expressions of this inaccurate kind prevail in our common, even in our convivial, language. Is a toast asked? ‘The United States,‘ instead of the ‘People of the United States,‘ is the toast given. This is not politically correct. The toast is meant to present to view the first great object in the Union: It presents only the second: It presents only the artificial person, instead of the natural persons, who spoke it into existence.

Chisholm v. Georgia, 2 U.S. 419, 462, 1 L. Ed. 440 (1793) (emphasis added). This doesn’t seem to apply to the modern concept of what it means to be politically correct.  The fact that the case draws a distinction between the artificial person (in this case, the United States of America) and the natural persons who make up the nation. That's concept that has application in the business law world, to be sure.  

The phrase “politically correct” appears in 259 cases per a search on Westlaw, and the phrase took 191 years off after Chisholm v. Georgia. The phrase resurfaced in 1984, with a use that seems to combine the more modern usage with the 1793 use. Am. Postal Workers Union v. U.S. Postal Serv., 595 F. Supp. 1352, 1362 (D.D.C. 1984), aff'd in part, vacated in part sub nom. Am. Postal Workers Union, AFL-CIO v. U.S. Postal Serv., 764 F.2d 858 (D.C. Cir. 1985) (stating that a union “could find out what party a worker is affiliated with and, if not ‘politically correct,’ exert pressure on the worker to change).

In 1991, the phrase comes into more common usage, and we see a particularly modern spin in a Minnesota appeals court dissent in a case upholding a trespassing conviction against abortion protestors:

Both the issues of war and abortion produce a deep split in America's fabric. Oftentime an ugly split. Although it is not pretty, at least it proves that Americans feel strongly on both sides of the issue. Courts do not determine whether anti-war protests are more “politically correct” than abortion protests. It is not up to courts to pass judgment on the “worthiness” of appellants' cause. Trespass is a crime. This is a criminal case. I do not bother my head with whether appellants should protest against “X” (because I disagree with “X”) but not protest against “Y” (because I agree with “Y”). As criminal defendants, appellants are entitled to certain constitutional rights. We do not differentiate between “good” defendants and “bad” defendants. We treat all the same.

State v. Rein, 477 N.W.2d 716, 723 (Minn. Ct. App. 1991) (Randall, J., dissenting).

From a legal perspective, this 1991 case is a jumping off point for modern legal usages of the PC concept. The idea almost always connotes something negative. Take, for example, the most recent case in which a judge used the phrase as part of the opinion (there are more recent cases in which the court quotes others using the phrase).  Here, again is a dissent, this time a Fourth Circuit case upholding a District Court order allowing a transgender student to use their restroom of choice: 

Somehow, all of this is lost in the current Administration's service of the politically correct acceptance of gender identification as the meaning of “sex”—indeed, even when the statutory text of Title IX provides no basis for the position.

G.G. v. Gloucester Cty. Sch. Bd., 824 F.3d 450, 452 (4th Cir. 2016) (Niemeyer, J., dissenting), cert. granted in part Gloucester Cty. Sch. Bd. v. G.G. ex rel. Grimm, 137 S. Ct. 369 (2016). 

I find it interesting that my quick search (admittedly not exhaustive), only revealed the term being used by courts in dissents.  As such, when in the majority, the label is deemed unnecessary, even in discussing a counterargument.  Is is just a matter of time, or is it more that the majority is deciding not to take a victory lap when on the winning side? 

That's the quick look at the legal landscape of political correctness. Does it lead us anywhere? I don't know. At a minimum, I think we should try not to offend others when we can avoid it. And if we do offend others, apologize and try to move forward.

Beyond that, I have to get back grading. So far, not one person has called an "LLC" a "limited liability corporation." Doing so would be decidedly un-PC.  

https://lawprofessors.typepad.com/business_law/2016/12/legal-origins-of-political-correctness.html

Case Law, Current Affairs, Joshua P. Fershee | Permalink

Comments

fwiw, I ran a Google ngram on the phrases "politically correct" and "political correctness." The phrases were almost non-existent until the 1980s.

https://books.google.com/ngrams/graph?content=political+correctness%2C+politically+correct&year_start=1800&year_end=2000&corpus=15&smoothing=3&share=&direct_url=t1%3B%2Cpolitical%20correctness%3B%2Cc0%3B.t1%3B%2Cpolitically%20correct%3B%2Cc0

Posted by: Evan Nelson | Dec 20, 2016 1:40:44 PM

"At a minimum, I think we should try not to offend others when we can avoid it. And if we do offend others, apologize and try to move forward." This used to be colloquially called "manners." However, we must also contemplate when we do wish to offend. There is rational and effect for doing so.

Posted by: Tom N. | Dec 21, 2016 7:29:49 AM

PC isn't about rudeness or how things are expressed, it's about controlling ideas that are offensive. For example, no matter how nicely you say, "Mothers who kill their unborn children are murderers," or "Same sex marriage isn't really 'marriage,'" or "We should build a border wall with Mexico," it's the ideas themselves that "offend" people. The point of PC (which does also occur on the right) is to stop people from expressing their political, moral, and social views at all. It's designed to make certain views simply illegitimate.

Posted by: Frank Snyder | Dec 21, 2016 6:20:36 PM

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