Evelyn Douek is an S.J.D. candidate at Harvard Law School, studying international and transnational regulation of online speech. Before coming to Harvard to complete a Master of Laws, Evelyn clerked for the Chief Justice of the High Court of Australia, the Hon. Justice Susan Kiefel, and worked as a corporate litigator. She received her LL.B. from UNSW Sydney, where she was Executive Editor of the UNSW Law Journal.
I am none of these things. However, I would like to criticize a certain “false meme” that Ms. Douek is, I believe, unwittingly circulating—“unwittingly” in the sense that she doesn't realize it isn’t true. Writing in Lawfare, in her article “Facebook’s New ‘Supreme Court’ Could Revolutionize Online Speech”, she speculates as to the the motivations of the notorious Mr. Zuckerberg as follows:
There is also the user-relations dimension. When Zuckerberg first floated the idea in April, I analogized Zuckerberg’s desire for restraint to the voluntarily segregated hotels and restaurants that counterintuitively supported anti-discrimination legislation during the Civil Rights Movement. They did so because they would earn more profits if they provided their services to everyone, but would pay a social cost in their white communities if they decided to voluntarily stop discriminating. Content moderation decisions on Facebook are hard and any call is likely to upset a proportion of Facebook users. By outsourcing the decision and blame, Facebook can try to wash its hands of controversial decisions.
I think the hand washing is very much on Facebook’s mind, but Douek’s “analogy” to the Civil Rights Act of 1964 struck me as dubious, because I wasn't at all sure that hotels and restaurants in the South wanted to be forcibly integrated back in the day, so I pursued the link to her earlier article, “The Supreme Court of Facebook: Mark Zuckerberg Floats a Governance Structure for Online Speech”, where I read the following:
In a recent article, Cass Sunstein describes how, during the civil rights movement, many segregated restaurants and hotels counterintuitively supported anti-discrimination legislation because they would earn more profits if they provided their services to everyone. Yet they wanted to be compelled by law to desegregate because social norms meant they would incur a high cost in their communities if they voluntarily decided to stop discriminating.
Okay, I still didn’t agree, so I pursued that link, to the article by the distinguished Professor Sunstein, who teaches at Harvard Law, succinctly titled “Unleashed”, which discusses a wide variety of topics relating to discrimination and norms, coming up with a little typology of behavior—four “cases”, defining “Case (4)” as the case “in which discriminators do not want to discriminate, but norms encourage or require them to do so.” According to Dr. Sunstein,
Case (4) may be the most interesting one. Here too, many discriminators will falsify their preferences. They will act as if they are sexist and racist, even though they are not. (In human history, that has often happened.) Faced with the stated conflict, what can discriminators do, short of defying the norm?
Here as well, norm entrepreneurs can act to alter the norm. They can also ask for or enlist law. Consider a revealing fact: Some of the restaurants and hotels that that were regulated by the Civil Rights Act of 1964 actually lobbied vigorously for the legislation. [Sunstein’s emphasis] Why – you might ask – would such companies affirmatively seek to be forbidden, by law, from discriminating on the basis of race? If they did not want to discriminate on the basis of race, they certainly could have stopped discriminating on the basis of race. Why did they need the law?
Norms help to explain what happened. The relevant companies had an antecedent preference: They wanted to make money. The best way to make money was to serve anyone who was willing to pay. For that reason, they did not want to discriminate. In fact they wanted not to discriminate, because discrimination, on their part, was costly. But in light of prevailing norms, they would incur a high cost for not discriminating, which would provoke a hostile reaction in their community. As Lawrence Lessig writes, “for a white to serve or hire blacks was for the white to mark him or herself as having either a special greed for money or a special affection for blacks.” In these circumstances, the force of the law was needed to alter the social meaning of nondiscrimination. Once the Civil Rights Act of 1964 was enacted, nondiscrimination was a matter of compliance. Profit-making companies were liberated.
Okay, I didn’t agree with Dr. Sunstein either, so I pursued the footnote he provided to his “revealing fact,” which reads as follows: “See Lawrence Lessig, The Regulation of Social Meaning, 62 U Chi L Rev 943 (1995). See also Richard H. McAdams, Cooperation and Conflict: The Economics of Group Status Production and Race Discrimination, 108 Harv L Rev 1003, 1065-85 (1995).
Via the miracle of the modern Internet, which has made Mr. Zuckerberg rich and me verbose, I discovered both Dr. Lessig’s and Dr. McAdams’ articles residing on the “Chicago Unbound” website, which I guess could also be called “Lawyers R Funny”.1 I confess I did not read either article in full, but did search for “Civil Rights” in both. I did not find anything in McAdams’ paper, “Cooperation and Conflict: The Economics of Group Status Production and Race Discrimination” about the history of the Civil Rights Act. But Lessig’s article, “The Regulation of Social Meaning” did discuss the act’s genesis. Pursuing what I would call an exercise in “fresh water” thinking, Dr. Lessig had this to say:
During the legislative hearings on the Civil Rights Act of 1964, supporters of the bill called before the committee white, southern employers and business owners whose discrimination against blacks was the prime target of the legislation. Some of these employers and businessmen supported the bill, and some of them supported the bill for reasons quite relevant to our analysis of social meaning construction.
…
[W]hat business leaders feared was the retaliation of whites against their voluntary efforts to integrate. This retaliation had both a behavior and a meaning. The behavior was simply the shift of business to another local business. The meaning was a form of stigma, this time stigma suffered by whites. In a context where voluntary integration was permitted, for a white to serve or hire blacks was for the white to mark him or herself as having either a special greed for money or a special affection for blacks. As one restaurant owner said, “If I'm the only one, how can I face my fellow citizens with pride?”
Despite his statement that “supporters of the bill called before the committee white, southern employers and business owners,” and despite summarizing their (alleged) testimony, Lessig doesn’t cite that testimony, buttressing his statement instead with a footnote that reads as follows:
See the testimony of Burke Marshall in A Bill to Eliminate Discrimination in Public Accommodations Affecting Interstate Commerce, Hearings on S 1732 before the Committee on Commerce, 88th Cong, 1st Sess 216 (1963) (stating that an overwhelming number of southern businessmen favor desegregation, but face serious collective action problems). See also Leslie A. Carothers, The Public Accommodations Law of 1964: Arguments, Issues and Attitudes in a Legal Debate 20-21 (Smith College, 1968) (same).
I confess that I did not pursue either Marshall’s testimony or Dr. Carother’s book but point out that Lessig is largely relying on Marshall’s conclusory testimony, which I would scarcely describe as unbiased. (The statement from the anonymous “restaurant owner” comes from Time magazine, not an unimpeachable source.)
Marshall was head of the Department of Justice’s Civil Rights Division, given the job by Robert F. Kennedy largely because Marshall wasn’t known as a civil rights advocate. Contact with southern racism both disgusted and enlightened Marshall and he became a passionate advocate, probably far more of one than Kennedy expected or desired. Marshall was a leading, if not principal, author of the Civil Rights Act. He had ample reason to argue that “an overwhelming number of southern businessmen favor desegregation”, but no way of knowing if that were true, and I have no doubt that that statement was in fact quite inaccurate.
It’s “likely” that the northern owners of the national chains of hotel and restaurants that operated in the South wanted integration forced upon them because they were embarrassed to be operating segregated facilities. They were also under heavy pressure from the federal government, which, in the “crusade” against communism, was deeply embarrassed on the international front by the South’s blatant racism. There was a particular problem caused by the fact that many non-white nations used the same diplomatic staff for both the United Nations and Washington, DC, meaning that they often had to travel through Maryland. They were frequently denied service at restaurants, because Maryland had been a slave state, and explicitly racist traditions and practices continued in that state.
But what northern sophisticates wanted was not what the people of the South wanted. To sit at the same lunch counter as a black person, to “serve” a black person—these were degrading things to a southerner, a violation of the “southern way of life”—the South’s preferred euphemism for racism. Marshall was telling Congress that passage of the Civil Rights Act would not be “controversial,” which was entirely inaccurate. Southern senators staged the longest filibuster in history (75 or 83 days, depending on how you count). Only one southern senator, Ralph Yarborough of Texas, voted for the bill. Over 90% of southern representatives in the House voted against the bill, including one George Herbert Walker Bush. Said Georgia Senator Richard Russell, “We will resist to the bitter end any measure or any movement which would have a tendency to bring about social equality and intermingling and amalgamation of the races in our states.”
In fact, the integration of businesses—as far as customers were concerned—did not prove nearly as “controversial” as school integration—but the process was not without difficulties. The “Heart of Atlanta Hotel” challenged the constitutionality of the Civil Rights Act. According to Justice Tom Clark’s majority opinion upholding the law, “The appellant contends that Congress in passing this Act exceeded its power to regulate commerce under Art. I, s 8, cl. 3, of the Constitution of the United States; that the Act violates the Fifth Amendment because appellant is deprived of the right to choose its customers and operate its business as it wishes, resulting in a taking of its liberty and property without due process of law and a taking of its property without just compensation; and, finally, that by requiring appellant to rent available rooms to Negroes against its will, Congress is subjecting it to involuntary servitude in contravention of the Thirteenth Amendment.”
Sunstein, Lessig, and McAdams are all connected with the University of Chicago, famous/infamous as the home of laissez faire, “all is for the best in the best of all possible worlds” thinking, in particular with Nobel Prize-winning economist Gary Becker, famous/infamous, in part, for his “theory” that the 1964 Civil Rights Act was unnecessary because segregation was “inefficient”—businesses that hired and promoted blacks on an equal basis with whites, and who accepted them as customers, would prosper because they would have better employees (a larger “talent pool”) and more customers, though in the “softer” version pushed by Sunstein et al., society has just somehow gotten stuck in an “irrational” attitude and simply needs a little nudge to do right and so they seize on Marshall's testimony—to my mind both dubious and overly convenient—to "prove" their pre-existing theory. But if their theory were true, then one wonders how this irrational attitude ever established itself in the first place, and how it maintained itself for so long, against all “reason”, why all the forms of discrimination practiced by whites in the U.S.—against American Indians as well as blacks, against “Mexicans” and Asians and all the rest—ever came to be—why, in fact, we haven’t been living in a perfectly integrated society for the past four centuries.2
Irrational racial/class prejudice has existed in India for thousands of years. Dietary proscriptions—against pork or beef, for example—which might seem even more “inefficient”, have lasted for an equally long time, and in fact continue to multiply. The taboo in the U.S. against the consumption of horse meat has grown significantly in my lifetime, with horses obtaining, among many people, a quasi-sacred status, in line with the general sanctification of “Nature” as a result of the environmental movement. There is more in heaven and earth than is dreamt of in the rationalists’ philosophy.3
Afterwords
Prior to the passage of the 1964 Civil Rights Act, Atlanta restaurant owner Lester Maddox, enraged by “sit-in” protesters, provided ax handles for his white customers to use to defend themselves against any “outside agitators”. When the Act was passed, Maddox was so disgusted that he closed his restaurant rather than serve “Negroes”. Instead, he ran for governor in 1966, and won.
I happened to be stationed in Fort Benning in Georgia at the time. All the “best” people of Atlanta were deeply embarrassed by Maddox’s election, a confirmation in northern eyes, they knew, of every hillbilly cliché the most arrogant Yankee might entertain. The backlash against Maddox definitely helped enable Jimmy Carter’s election in 1970 as the "anti-Maddox”, even though Maddox, prohibited from running for a second term, was elected as lieutenant governor, winning both the primary and election as the “anti-Carter”, whom he naturally despised.
Afterwords, Part II, Special Picky Edition
Going back to Ms. Douek (remember her?), even if the Sunstein, Lessig, and McAdams tale of the would-be integrationists were true—and, clearly, I don't believe it is—I don't see how their situation is "on all fours", as the lawyers like to say, with Mr. Zuckerberg's predicament. As Sunstein et al. tell it, the restauranteurs/hoteliers wanted to be forced to integrate because they would make more money that way. Zuckerberg doesn't really want to be forced to submit to a “Facebook Supreme Court”. He'd make more money if people would just leave him the hell alone.4 But he knows that won't happen, that powerful people and groups will continually make conflicting demands on him, demands that, no matter how they are resolved, will be sure to enrage and provoke renewed oppostion from some quarter, leading, in a worst case scenario, to either the actual breaking up of Facebook, however that could happen, or direct government regulation. So rather than take the heat himself for “controversial” decisions, he will graciously yield the field to a “higher power,” while doing as much as possible behind the scenes to ensure that he never ends up being forced to do something he really doesn't want to do. He isn't seeking a greater good, as the restauranteurs/hoteliers supposedly were, but seeking to ward off a greater evil.
1. McAdams is now at the University of Chicago. Is there a “Harvard Unbound”? I couldn’t find it.
2. And don't get me started on women! Don't even get me started!
3. The McAdams paper, which is quite long, comes across, according to my skimming, as a laborious, unsuccessful attempt to explain why, after the elimination of legal segregation, actual racial integration in the U.S. remains so incomplete. Because there is more in heaven and earth than is dreamt of in the rationalists’ philosophy.
4. Zuckerberg's situation is really closer to Sunstein's “Case (2)”—doesn't want to submit to regulation but knows he has to—rather than “Case (4)”, but the fit still isn't exact.
