This Petulant, Potty-Mouthed President Demeans Us All

This article first appeared on Dorf on Law.

In past years, I have marked the birthday of the Rev. Dr. Martin Luther King Jr. by discussing his oratory or noting the importance of the recognition of the day as an official holiday.

This year I want to reflect on what an official celebration of King's anti-racist legacy means when we have a racist president.

I'll use Trump's description of Haiti, El Salvador, and African nations as "shithole countries" as my jumping-off point, turning back to Dr. King at the end of this essay.

Here is what we did not learn from this latest outrage:

■ Donald Trump is a racist. We didn't learn that, because it was already clear from so much of Trump's past words and deeds that he is a racist. Not clear to everyone, mind you, but as a friend of mine put it on Facebook, if you still don't think Trump is a racist, that's because you are a racist yourself.

■ Donald Trump is a liar. Trump has sort of denied using the language in question, but his denial is not credible, because he lies constantly. As the purveyors of false equivalence will remind us, nearly all politicians say things that aren't true and even outright lie from time to time. Trump is in another category altogether.

■ Donald Trump is a vulgarian, regardless of the size of his hands or fingers.

Observing the media react to "shithole" was perhaps the only amusing aspect of this latest Trumpesty. WaPo broke the story by printing "shithole." Other outlets followed suit but some felt the need to explain.

During the 7 am hour of Morning Edition on NPR on Friday, I learned that "shithole" does not meet the network's standards, but then less than two hours later a different NPR news announcer pronounced the dreaded two syllables.

Comedy Central apparently thought that it was okay to have Trevor Noah say shithole, which then liberated him to say shit. Really? Shithole? After "Grab ’em by the pussy"? It makes you miss George Carlin.

■ Donald Trump may be suffering from the early stages of dementia. I know, I know. When even mental health professionals aren't supposed to diagnose from afar, a mere lawyer certainly shouldn't.

I'm just noting that unrestrained use of profanity can be a symptom of dementia.

Note, however, that attributing Trump's use of the particular word "shithole" to dementia does not acquit him of the other charges. Trump has long been a racist vulgar liar. Prior to the descent into dementia that we may be witnessing, he might have been careful to be a little less vulgar in lying or expressing his racist views on the record. That's not a defense.

So what did or can we learn from "shithole countries"?

On one account, it's a mistake to pay attention to Trump's outrageous language--whether in tweets or otherwise--because it distracts attention from the outrageous policies he is pursuing, and it's the policies that have real consequences. This strikes me as a fair point.

GettyImages-886425730 Donald Trump in the Oval Office of the White House in Washington, DC, December 5, 2017. SAUL LOEB/AFP/Getty

How much of the conversation around immigration has been shifted away from the fact that, just two days after stating he would agree to any DACA deal that Congress worked out, Trump nixed the bipartisan Senate deal on DACA? Not all, but some.

The context for Trump's "shithole countries" remark was his dissatisfaction with continued immigration and naturalization for people from the countries thus defamed, which is why he is siding with anti-immigrant hardliners.

Had Trump not dangled the shiny object of "shithole countries" and immigration preferences for Norwegians and other super-white people, the main story after Friday's meeting would have been how Trump had betrayed the Dreamers just two days after giving them hope.

Yet even as Trump's despicable rhetoric distracts from policy discussion, it has an impact. And some of that impact may even be helpful.

Litigation against various Trump policies has received a boost from Trump's openly bigoted rhetoric. Even if the Supreme Court ultimately upholds Trump's Travel Ban 3.0, Trump's campaign rhetoric ("total and complete shutdown of Muslims entering the United States") made possible findings of animus that played a role in the earlier rulings, which meant that  his administration had to revise the travel ban twice and delay its implementation for months.

A savvier but equally bigoted candidate or president would have said something like, "We need to take a really close look at our border security and visa policies to protect the national safety" before doing what Trump did and thus might have gotten away with it. In this view, Trump's vulgar bluntness produces a record that may then be used to challenge his substantive policies.

Does that phenomenon make Trump's racist potty-mouth a net benefit? I think not, because it fails to reckon with Trump's poisoning of our culture. To be clear, by that I don't mean the profanity; I mean the racism.

Trump's giving public voice to racism poisons our culture in much the way that the most thoughtful advocates of hate-speech regulation argue that hate-speech more generally does. I have in mind Jeremy Waldron's argument in his 2009 Holmes Lectures , subsequently published in the Harvard Law Review and then republished, more or less the same way, in his 2012 book The Harm in Hate Speech .

As readers of this column likely know, the First Amendment has been construed by our courts to forbid the banning of hate speech. I'm not now arguing that this construction is wrong, but even opponents of the regulation of hate-speech can recognize that the toleration of hate-speech exacts costs. What are those costs?

Much of Waldron's book aims to distinguish between "offense," which he thinks should not be a basis for regulation of speech, and attacks on "dignity," which he thinks can be and is the basis for hate-speech regulation in most other constitutional democracies.

I'm not now going to delve into the precise nature of that distinction or whether it can hold up in practice. But I can give some sense of what Waldron has in mind by quoting his description of how laws banning group libel might be defended. He writes that

certain forms of defamation might be seen as an attack on public order. It [is] a matter of keeping the peace, avoiding brawls and so on, in the context of egregious libel flowing over into fighting words.

But public order is a complicated idea, and preventing fighting or violence from breaking out--that very narrow sense of keeping the peace--is only one of its dimensions. Public order might also comprise society’s interest in maintaining among us a proper sense of one another’s social or legal status.

In an aristocratic society, this meant securing the dignity of great men or high officials with laws of scandalum magnatum, to protect nobles and great men from outrageous imputations on their breeding, their status, their honor, or their office.

The United States abolished titles of nobility in 1787, but it did not necessarily abolish that sort of concern for status. A democratic republic might equally be concerned with upholding and vindicating important aspects of legal and social status--only now it would be the elementary dignity of even its non-officials as citizens-- and with protecting that status (as a matter of public order) from being undermined by various forms of obloquy.

And that is what I think is the concern of laws regarding group defamation.

They are set up to vindicate public order, not just by pre-empting violence, but by upholding against attack a shared, public sense of the basic elements of each person’s status, dignity, and reputation as a citizen or member of society in good standing--particularly against attacks predicated upon the characteristics of some particular social group.

Again, one need not agree with Waldron that this sort of concern justifies hate-speech regulation to recognize that open expressions of racist views attack the dignity of millions of our fellow citizens and other members of society. The assault on dignity is all the more potent when it comes from the president--both because it carries civil authority and emboldens the worst of the president's supporters.

Dignity has two meanings. Both appear in King's autobiography. He sometimes uses the term in the way that Waldron does, as a status recognized by others. Thus, he describes the movement of which he was a key figure as pursuing a "goal" of "dignity and freedom."

But in other places King uses the term dignity to refer to how a person comports himself. For example, he talks about the importance of civil rights activists "evinc[ing] calm dignity and wise restraint."

In his dissent from the ruling recognizing a constitutional right to same-sex marriage, Justice Clarence Thomas conflated these two conceptions of dignity. He wrote

that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits.

The government cannot bestow dignity, and it cannot take it away.

That's hardly an original idea. Whitney Houston sang about it in Greatest Love : "No matter what they take from me, they can't take away my dignity." And there is a benefit to thinking this way, of acting with dignity even as the society around you, or the president of the country in which you live, treats you as though you do not deserve dignity. Acting with dignity in the face of indignities is noble and empowering. Dr. King understood that.

But King also understood that having one's dignity recognized by others matters. It matters to the material circumstances of one's life. It matters to one's emotional and (King, as a religious man, would have said) spiritual wellbeing. And it matters to all of us in our collective life--what Waldron calls public order.

So no, Trump's profoundly undignified words and deeds do not deprive anyone in the US, Haiti, El Salvador, Africa, or anywhere else of their right to dignity or of their inherent dignity.

However, they deprive many of us--and not a random cross-section--of the reality of dignified treatment to which everyone is entitled.

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

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