Ultimately the worst danger of such a badly written law comes from bestowing on the state and the courts the power to regulate and intrude into our personal interactions and freedom. In a free, open, and diverse society, our encounters with one another are necessarily fraught with tension, disagreement, and conflict. The threshold of offense differs from person to person, or even from moment to moment in the same person. Given such a wide variety of standards and thresholds of offense, discomfort, distress, appropriateness, or insult, in a free society people have to accept the possibility of hearing or seeing something they don’t like, for the alternative is a government-enforced limitation of freedom that in the long run is more pernicious than hurt feelings.
Such restrictions are precisely what have happened in universities, the presumed bastions of free thought and expression. Many university “harassment codes” list jokes, cartoons, gestures, facial expressions, kidding, and “sexual” remarks as punishable harassment. For example, at California State University Monterey, sexual harassment “may range from sexual innuendoes made at inappropriate times, perhaps in the guise of humor, to coerced sexual relations.” At U.C. Berkeley, “humor and jokes about sex in general that make someone feel uncomfortable” counts as harassment. Alabama State University targets “behavior that causes discomfort, embarrassment or emotional distress.” And Iowa State University harassment “can range from unwelcome sexual flirtations and inappropriate put-downs of individual persons or classes of people to serious physical abuses such as sexual assault.” Leaving aside sexual assault or coercion, the effect of such broad and vague categories is to criminalize normal teen-aged and young adult behavior, not to mention leaving the interpretation of just what constitutes a “sexually harassing gesture” up to the alleged victim and whatever university commissar investigates the incident.
And if that “chilling effect” on individual freedom isn’t enough, earlier this year the Department of Education’s Office of Civil Rights sent a “dear colleague” letter that instructed schools investigating harassment complaints to use the “more likely than not” or “preponderance of the evidence” standard of evidence rather than the “clear and convincing” one. Worse yet, the right of the accused to confront his accuser is suspended, for allowing such questioning may be “traumatic or intimidating.” The DOE apparently is unconcerned with the “trauma” of being falsely accused of sexual harassment and subjected to an investigation stacked against him. “Due process” rights are acknowledged for the perpetrator, but only if they “do not restrict or unnecessarily delay the Title IX protections for the complainant.” As Wendy Kaminer observed, “Elevating the feelings of a complainant over the rights of an alleged perpetrator, who may have been falsely accused, reflects a presumption of guilt” rather than the presumption of innocence at the heart of our judicial system.
And here is the true significance of the attack on Herman Cain. The whole affair is made possible by a textbook case of the government regulatory overreach and intrusion that afflicts our society at every level. Behind these regulations lie the progressive ideology that believes a cadre of experts know better how to organize society and regulate our interactions in order to achieve some utopian goal of egalitarianism or “justice.” The consequences, however, include the further empowering of the state at the expense of individual rights, and the infantilizing of citizens that in the end compromises their freedom, for personal responsibility and self-reliance are the indispensable preconditions for political freedom. As de Tocqueville said about the necessity of self-reliance for democratic freedom: “It profits me but little, after all, that a vigilant authority always protects the tranquility of my pleasures and constantly averts all dangers from my path, without my care or concern, if this same authority is the absolute master of my liberty and my life.”
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