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Civil Rights Vs. Civil Liberties: The Case of Discriminatory Verbal Harassment*

  • Thomas C. Grey (a1)
Abstract

American liberals believe that both civil liberties and civil rights are harmonious aspects of a basic commitment to human rights. But recently these two clusters of values have seemed increasingly to conflict – as, for example, with the feminist claim that the legal toleration of pornography, long a goal sought by civil libertarians, actually violates civil rights as a form of sex discrimination.

Here I propose an interpretation of the conflict of civil rights and civil liberties in its latest manifestation: the controversy over how to treat discriminatory verbal harassment on American campuses. I was involved with the controversy in a practical way at Stanford, where I helped draft a harassment regulation that was recently adopted by the university.

Like the pornography issue, the harassment problem illustrates the element of paradox in the conflict of civil-liberties and civil-rights perspectives or mentalities. This problem does not simply trigger familiar disagreements between liberals of a classical or libertarian orientation as against those of a welfare state or social democratic one – though it does sometimes do that. In my experience, the issue also has the power to appear to a single person in different shapes and suggest different solutions as it oscillates between being framed in civil-liberties and in civil-rights terms. At the same time, however, it remains recognizably the same problem. It is thus a very practical and political example of the kind of tension noted by Wittgenstein in the aphorism that heads this essay – a puzzle of interpretive framing, of “seeing-as.”

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Paul Brest , “Foreword: In Defense of the Antidiscrimination Principle,” Harvard Law Review, vol. 90 (1976), p. 1.

Patricia Williams , “The Obliging Shell: An Informal Essay on Formal Equal Opportunity,” Michigan Law Review, vol. 87 (1989), pp. 2128, 2133–37.

Steven Shiffrin , The First Amendment, Democracy, and Romance (Cambridge: Harvard University Press, 1990).

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Social Philosophy and Policy
  • ISSN: 0265-0525
  • EISSN: 1471-6437
  • URL: /core/journals/social-philosophy-and-policy
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