Michael Dorf: What Does Trump Mean By Political Correctness?

This article first appeared on the Dorf on Law site.

Among the many apparent mysteries concerning the election of Donald Trump to the presidency is the matter of timing.

That people experiencing economic hardship would turn to a racist demagogue is not entirely surprising. The surprise is that it happened in late 2016, when the U.S. economy had mostly recovered from the worst of the Great Recession, rather than in 2008 or 2012, when the economic picture was worse.

The mystery is mostly solved when we take account of the unevenness of the economic recovery and the dislocations caused by long-running structural changes in the economy.

Mostly but not entirely solved because on top of Trump's seemingly odd economic timing we have Trump's odd rhetorical timing.

Trump campaigned against "political correctness," a phenomenon that—judged by the following n-gram and my own subjective impression having lived through the relevant periods—began to decline in significance after peaking in the mid-1990s, roughly two decades before Trump launched his presidential campaign. (Google n-grams cut off in 2008 but the trend is evident.)

05_07_political_correctness_01 Google

When libertarian conservatives (and unreconstructed liberals) complain about political correctness, they do so in the name of freedom of speech, but Trump—who treats the free press as "fake news" and the "enemy of the people" and wishes to "open up" libel laws—has little use for free speech.

His complaints about political correctness were always code for resentment of the groups—racial, ethnic, sexual and other minorities—that political correctness, not to mention simple decency, aims to protect.

Coupling his denunciation of political correctness with acting out the bigotries that political correctness and common decency condemn, Trump's seemingly decades-off timing enabled him to marry his economic nationalism to an ugly ethnocentric nationalism.

Yet even as Trump's cynical denunciation of political correctness serves chiefly to foment hatred and distract attention from the genuine threat that he and his administration pose to free speech, free press and much else, real examples of political correctness appear to have made a comeback.

In this column, I'll discuss three arguable instances based on recent news stories:

(1) the reaction to a feminist philosophy journal's publication of an article arguing that the persuasive justifications for respecting assertions of gender identity in conflict with sex assigned at birth should also lead to acceptance of "transracial" identity;

(2) UC Berkeley's inability to guarantee the safety of Ann Coulter at her preferred time and place to give a lecture;

and (3) the reaction of some readers to the decision of the New York Times to make Bret Stephens a regular columnist after he debuted with an essay that equated the fallibility of electoral predictions with the supposed uncertainty of climate science.

Related: Robert Reich : Coulter Should Be Allowed to Speak

I'll conclude that (1) is (at least by my lights) a genuine example of political correctness, that (2) might be, but whether it is depends on facts that are not fully known, and that (3) simply isn't.

I'll also acknowledge that distinguishing between legitimate offense-taking and problematic efforts to silence unpopular speech requires the exercise of some measure of contestable judgment.

Before diving into my three examples, I need to clarify what I mean by "political correctness." Because the term is used chiefly polemically, it has no universally accepted definition.

05_07_Colbert_Correct_01 Stephen Colbert at Lincoln Center's American Songbook Gala at Alice Tully Hall, February 1, 2017, New York City. Michael Dorf writes that right-wing political correctness is sometimes disguised as left/liberal political correctness—like right now, with Fox News asking the FCC to penalize Stephen Colbert for a joke about Donald Trump performing oral sex on Vladimir Putin. (The left/liberal disguise is the claim that Colbert's joke was homophobic.) Neilson Barnard/Getty

As I use the term, it does not include unconstitutional censorship. If a village maintains a public park in which it permits Democrats but not Republicans (or vice-versa) to hold political rallies, that is unconstitutional censorship that could be rooted in some version of political correctness, but the latter concept is unnecessary in thinking about the censorship.

Likewise, if a group of self-styled anarchists disrupt a political rally (of any ideological orientation), that is criminal conduct. It is not unconstitutional because it is not state action, but we still don't need the concept of political correctness to get at the core problem here: the coercive use of force or threats of force for unlawful purposes.

I restrict the use of the term political correctness to refer to presumptively lawful conduct—such as the decision of what speech to publish or what speech to subject to social sanctions—that has a chilling effect on the expression of unpopular opinions and/or reflects listeners' hair trigger for taking offense. I'll draw these distinctions out a bit in the examples.

In each of my examples, the candidate for politically correct view codes as left/progressive, which corresponds with the way the term political correctness is typically deployed, but nothing in my understanding of the term political correctness entails this orientation.

Right-wing political correctness also occurs, sometimes even disguised as left/liberal political correctness—like right now, with Fox News asking the FCC to penalize Stephen Colbert for a joke about Donald Trump performing oral sex on Vladimir Putin. (The left/liberal disguise is the claim that Colbert's joke was homophobic.)

Related: Michael Dorf : Trump's Honeymoon Went Sour From the Start

Now onto the chief examples.

(1) Rebecca Tuvel is an assistant professor in philosophy (at Rhodes College in Tennessee) whose article "In Defense of Transracialism" in the journal Hypatia sparked what I consider an excessive backlash.

As noted above, the article argues that people like her, who favor transgender rights, also ought to favor a right for people to identify with a race different from their race assigned at birth. She uses the controversy over Rachel Dolezal to illustrate her argument, although she reserves judgment on Dolezal's case itself.

Tuvel's argument can be challenged in both directions. Given the history of blackface and white appropriation of black culture, attempts by (conventionally) white people to identify as black meet with understandable suspicion. Even with good intentions, such efforts might reenact problematic stereotypes.

Meanwhile, without denying that gender is socially constructed, one could view Tuvel's endorsement of "transracialism" as implicitly belittling transgender individuals' internal experience of their sex as different from the sex assigned at birth.

By assimilating the argument for transgender rights to a broader principle of "people get to choose their identity," Tuvel could be seen to be understating the harm that transgender folks experience when they are denied the ability to express their gender identity.

No doubt some people who read Tuvel's article were unpersuaded, based on the foregoing or other concerns. Yet over five hundred people, including many professional philosophers, chose not merely to express disagreement with Tuvel but to send an open letter to the editors of Hypatia demanding that they retract Tuvel's article on various grounds. The Board of Associate Editors then took the extraordinary step of apologizing and stating that Tuvel's article should not have been published.

As explained in this helpful essay on the Daily Nous , the complaints about Tuvel's article look like political correctness. That's not because Tuvel's article is beyond criticism. As noted above, I'm not persuaded by her argument.

And even Tuvel herself (in a response quoted by the Daily Nous piece) accepts some of the criticism in the open letter—such as criticism of her practice of "deadnaming," i.e., referring to the name assigned at birth to identify a trans person who has adopted a new name that conforms to their gender identity, and the contention that she could have engaged more thoroughly with the work of various trans scholars, scholars of color, etc. But none of this rises to the level of retraction-worthiness.

I don't think that the open letter and the Board's apology necessarily amount to defamation of Tuvel—as Brian Leiter suggests they might—but to my mind they do constitute very unfortunate political correctness.

(2) UC Berkeley has been heavily criticized for its decision to deny Ann Coulter the opportunity to speak at her preferred venue on the ostensible ground that the university could not guarantee her safety and the safety of her audience, in light of credible threats of violence. The student group and a national affiliate have filed a lawsuit alleging First Amendment violations.

As Eugene Volokh and I discussed in a recent Bloomberg Law radio segment, whether the lawsuit succeeds will depend on the resolution of factual questions.

Despite its invocation of security concerns, does UC Berkeley really discriminate against conservative viewpoints?

Even if not expressly discriminating, does the university have sufficiently specific guidelines for making security decisions on a content-neutral basis (as required by the time, place, and manner doctrine)?

Does its response to the threat of violence give private opponents of unpopular speech an impermissible heckler's veto?

That last question turns on more than just facts. It also turns on value judgments.

Suppose that providing a reasonable guarantee of Coulter's safety would require UC Berkeley to pay three extra campus police officers overtime. That would seem like an expense that the First Amendment requires the university to bear.

But what if it would require an extra hundred police officers? An extra thousand? And what if no amount of extra security could eliminate the risk of serious violence?

The case law does not definitively resolve these line-drawing questions, but, in any event, they do not strike me as implicating political correctness per se.

Does the Coulter/Berkeley case nonetheless indirectly implicate political correctness? Maybe. Even if the anarchists who threatened the safety of Coulter and others are not UC Berkeley students, one could imagine that a campus culture that shuns conservative ideas through non-violent means such as social opprobrium attracts hangers-on who engage in or threaten violence.

That is at least a prima facie plausible description of what happened at a lecture by Charles Murray at Middlebury College earlier this year—although it is worth noting that Middlebury itself has come down hard on students who engaged in more than peaceful protest of Murray's speech. If a campus culture of political correctness contributed to the lawbreaking at Middlebury, it is not a culture that is fostered by the university administration.

Related: Charles Murray: My Free Speech Ordeal at Middlebury

(3) The first column by Bret Stephens appeared in the NY Times on April 28. He argued that because the computer-based predictions that gave Trump little chance of winning the presidency proved to be wrong, the computer-based predictions of ecological catastrophe as a result of global warming could also prove to be wrong, even as he conceded the reality of "modest" human-induced warming.

Stephens did not expressly argue for any climate policy, but in saying that calls for "abrupt and expensive changes in public policy raise fair questions about ideological intentions," he left little doubt about his own ideological intentions.

In response to a storm of criticism, Stephens backpedaled. He cherry-picked examples of imprudent policy responses to climate change, such as promotion of diesel fuel in Britain, as though to suggest that he wasn't really promoting doing nothing, just opposing counterproductive measures.

Stephens also claimed that he was really only pointing out that global warming is just one of many environmental disasters looming. That's absolutely right. Richard Oppenlander makes that point at length in his book Comfortably Unaware (which makes a strong case for veganism, i.e., the abandonment of animal agriculture, as a means of combating nearly all of our environmental problems).

Related: Cows? Who Needs 'em? Stop Drinking Milk

The problem is that in his initial column Stephens did not say that we need to engage in environmental triage. The only environmental problem he mentioned was global warming, and he sought to minimize it. On May 4, Stephens wrote his third Times opinion piece, once again urging caution before addressing climate change, arguing in this one that biofuels and cap-and-trade have been bad bets.

In response to the initial Stephens column, the Times apparently received a large number of requests to cancel subscriptions. Here's an explanation by one climate scientist, noting that the Times knew when it hired Stephens that he was a longtime climate denialist posing as merely a guy raising questions.

Predictably, that led to a backlash by the Times and others arguing that the subscription cancelers were PC snowflakes who wanted to read nothing but opinion pieces that confirm what they already believe. The backlash is nicely summarized and taken down by Will Oremus in Slate.

Related: Michael Dorf : Beware the "Trump Isn't So Bad" Narrative

What should we make of the decision of various readers to cancel their Times subscriptions?

It's not the decision I made. I agree with Professor Buchanan's assessment that Stephens is intellectually dishonest. However, as Professor Buchanan has noted repeatedly (e.g., here), the bar for being a Times columnist is very low. Having maintained my subscription despite years of self-congratulatory blather by the likes of Thomas Friedman and Nicholas Kristof, I'm not going to cancel over thinly veiled climate change denialism by Stephens.

Related: Michael Dorf : Trump Can't Claim Immunity. Ask Paula Jones

But people who decide otherwise are not being politically correct in any meaningful sense. On the contrary, they are doing just the opposite. Criticisms of ostensible overreactions to offensive speech often take the form, “If you don't like what the speaker has to say, don't listen.” That's exactly what the people canceling their subscriptions are doing.

Ideological polarization of news sources may be a serious problem, and the reaction to Stephens could be a manifestation of that problem. However, it is not political correctness.

I'll conclude with two caveats.

First, not everything that might appear to be political correctness is political correctness. I have some notion of the concept from teaching constitutional law for over 25 years (at Rutgers, Columbia and Cornell). During that time, I have found that students sometimes seem hesitant to express conservative viewpoints on certain subjects, even when I know that they hold those viewpoints.

Sometimes that is probably due to fear of social opprobrium. For example, I find that when I teach the abortion cases, I really need to press students to express the pro-life argument because students do not voluntarily do so themselves, even though at least a substantial minority of them are pro-life.

The same thing happens when we discuss race-based affirmative action, but I would not necessarily chalk all of that up to fear of social opprobrium. In a school that practices various forms of affirmative action, expression of an anti-affirmative action view could be taken by other students in the class as denying their legitimate membership in the law school community.

A student who thinks that, all things considered, affirmative action is a bad idea, unconstitutional, or both might hesitate to say that—not because she feels chilled by an oppressive liberal orthodoxy but because she is quite appropriately sensitive to the feelings of her classmates.

To be sure, it's possible that the same phenomenon could explain reticence about abortion. A pro-life student might think, "I don't want to say abortion is immoral because some of my classmates may have had abortions and I don't want them to think that I regard them as immoral." However, I don't think that's what's going on with respect to abortion, where there is less of any student's identity wrapped up in the issue than there is with respect to affirmative action.

If I'm right about these issues, it's worth wondering whether a lot (albeit not all) of what gets derided as political correctness is actually just students and, in other contexts, others, being appropriately sensitive to people's feelings. Because cries of political correctness focus on areas in which there are calls for greater sensitivity, it may be difficult to untangle real from imagined instances of political correctness.

Second, to the extent that political correctness is a real problem, we will inevitably disagree about what counts as an instance of political correctness, even if we can agree about criteria.

We might usefully distinguish among five categories of attitudes towards speech: (1) I agree with the speaker; (2) I disagree with the speaker; (3) I not only disagree with the speaker but find his message offensive; (4) I not only disagree with the speaker but find his message so offensive that I believe that I should protest his speech; (5) I not only disagree with the speaker but find his message so offensive that I believe that I should try to silence him through social opprobrium.

Critics of what they see as political correctness sometimes talk as though category (5) should be the null set, but this position is held by almost no one.

Consider the reaction to the use of the n-word by a Boston Red Sox fan in reference to Baltimore Orioles center field Adam Jones. The fan was universally condemned, including by the vast majority of Red Sox fans attending the next game, who gave Jones a standing ovation to express their support for him and their disapproval of the offensive comment.

Given that (5) is not the null set, complaints about political correctness boil down to complaints about categorization. We can understand a complaint about political correctness as really a complaint that someone else has misclassified what ought to be in a lower category in a higher one.

Yet there is disagreement about where various views and means of expressing them fall. Where does support for Trump's immigration policy fall? Support for conversion therapy? Holocaust denial? Etc. The difficulty is made worse by the fact that views that are deemed category (4) or (5) in some sub-communities may be seen as category (2) or even (1) in others.

Thus, complaints about political correctness may sometimes serve as a kind of proxy for expression of extreme views. Precisely because it is socially unacceptable in polite circles to voice support for white supremacy or homophobia, people who are sympathetic to white supremacy or homophobia but wish to continue to move in those circles voice second-order concerns about the stifling of dissent.

That's not to say that political correctness is never a real problem. It is to say that the term can distract us from the real stakes of any disagreement.

Applying my analysis here to my own assessment of the Tuvel article and reaction, we might say that this is simply a categorization issue. I think Tuvel wrote a category (2) article—wrong but not offensive, except inadvertently in ways that were easily correctable by some friendly advice about what to do next time. The people who signed the protest letter thought Tuvel had committed a category (5) offense.

We need not focus on whether calling for the retraction of an article with which one merely has a disagreement is appropriate. Of course it isn't appropriate. But the letter signers didn't merely disagree with the Tuvel article. They found it category (5) level offensive.

A constructive way forward would focus on which category the article properly belongs in and how best to put it there—not on political correctness as such.

Michael C. Dorf is the Robert S. Stevens professor of law at Cornell University. He blogs at DorfOnLaw.org.

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