This is a response to Hidden Under the Blinding Light of Victory.
The interrogation of public policy decisions to identify and assess the consequences of the decision—both unintended and intended—is fundamental to the function of the United States. In that sense, the Anonymous critique of the Civil Rights Act of 1964 posted on these pages last month serves an essential purpose. The article “advocate[s] for the slaughter of this most sacred of cows,” and performs this vital function. However, it is my belief that the reasons proffered in the critique are insufficient to complete this butchery.
My first gripe involves the characterization that the Civil Rights Act of 1964 implies victory in the proverbial war against bigotry in the United States. While the 1964 Act is undoubtedly a win for those advocating against discrimination in the public sphere, the problem of bigotry continues in America and the world even still. That is, of course, not to discount the progress made since the enactment of the Civil Rights Act, but to note that we have not yet won the battle. A clear example of this is the #MeToo movement, which shed light on pervasive workplace harassment of women half a century after the Act passed through Congress. Although this is not a central point of the article, it frames the issue in a somewhat misleading way. One cannot assume that past evils will stay at bay after dismantling the structure that has held them away.
Moving on to the main body of the critique, I should first say this: discrimination is wrong. It unjustly deprives people of opportunities on the basis of prejudice unrelated to their abilities. Anonymous creates a false equivalency between “breathing while thinking anti-government thoughts” and discriminatory actions. When breathing, people are not acting to deprive another of something they would otherwise have. As such, simply enforcing the Civil Rights Act of 1964 cannot be an “Orwellian thought crime” since a concrete loss occurs due to a palpably harmful act that is being redressed through the legal system.
The next point brought up by the author relates to proving intent in a suit. In suits regarding discrimination, the intent is necessary to prove harm. The author is correct in noting that there is uncertainty in establishing whether someone did act with invidious intent to make some adverse decision. However, the author merely states that uncertainty exists and does not differentiate from other areas of the law where intent is similarly essential. In criminal law, the concept of mens rea—or the state of mind when someone commits a crime—is vital. Whether a defendant knowingly injured someone or negligently did so has a bearing on the punishment they will receive. The short of it is that intent is and has historically been an integral part of the law, and the jurisprudence around discrimination is not doing something new or unprecedented.
In the same way that a manager may not text their colleague about their intention to fire an employee because of a protected characteristic, a murderer may not text their spouse their intention to run over their neighbor with a car the following day. In both this criminal situation and the Civil Rights situation, especially in employment law under Title VII, the onus is on the plaintiff or prosecution’s lawyers to prove this intent. While one may be reasonably skeptical of the process of proving intent and concerned about over-convicting people of wrongdoing, that concern implicates the entire American system of jurisprudence. It requires a much different and lengthier discussion.
Next, the author contends that the Civil Rights Act created “economic destruction.” I do not dispute the number that the author calculates in terms of the total cost of discrimination liability insurance; however, just because someone must pay does not, without more, imply societal loss. Framing here is critical: adverse acts based on invidious intent cause economic injury. Rather than being destructive, injured parties should be able to recoup damages from parties that wronged them. When a plaintiff in a civil rights case receives a judgment in their favor, that is efficient and just compensation for their injuries. Of course, firms may charge consumers higher prices, and wages may go down to compensate for this liability; but the justice concern of paying wronged parties outweighs the economic loss.
In the final section of the article, the author brings up an interesting point: to avoid liability in discrimination cases, employers regulate their employee’s speech. Effectively, the state has, through allowing liability for discriminatory actions, chilled employee speech. I am not convinced that the liability imposed by the Civil Rights Act of 1964—specifically Title VII—is the main reason for corporate policies that regulate private speech. Employers have many incentives, such as reputational harm. An insensitive or bigoted statement from an employee will only reflect poorly on the company, especially in the era of cancel culture. Even aside from that, forcing other employees to work with someone publicly known as a bigot may hinder corporate efficiency. Employees will be less productive on a team with someone who thinks they are inferior. While liability is undoubtedly a factor, the author attributes too much of the anti-bigoted-speech culture in American firms to it and not enough to cultural and economic reasons.
Even conceding that liability limits speech through implied state action, the first amendment is not a universal protection for all speech. One must balance all the relevant interests when determining whether something passes constitutional muster. While the general impulse for more speech is laudable, there is a very compelling state interest to protect people from adverse, invidious actions in the workplace. As discussed earlier, discrimination is inherently harmful to both the injured individuals and society, especially in the workplace. The economic and social costs of discrimination are incalculable, and limiting people’s ability to be racist, sexist, or otherwise uncouth in the workplace is a small price to pay.
For these reasons, the conclusions stated by Anonymous that the Civil Rights Act of 1964 is unconstitutional or must be repealed are erroneous. The specters of past wrongs still haunt us, and it would be tantamount to throwing the baby out with the bathwater to invalidate a law that creates a way for people wronged to receive redress. I appreciate the idea of deeply examining the costs and benefits of a policy, but here, the good done by the Civil Rights Act of 1964 over the last half-century overwhelmingly outweighs the costs.