The ACLU’s Double Standard
Last fall the Supreme Court made a decision to relax the standards of evidence required in sexual harassment cases. The ruling, Harris v. Forklift Systems, Inc., was not only unanimously decided, it engendered almost no hostility from any political camp. The sentiment among liberals was particularly sympathetic. Praise came from leaders of the National Women’s Law Center, the National Organization for Women, the Women’s Legal Defense Fund, the American Civil Liberties Union (Aux), and the editors of the New York Times.
On the face of it, there is no anomaly here: fighting sexual harassment is a liberal cause. What is striking, however, is the extent to which those who regard virtually every law banning obscenity as “overly broad,” “subjective,” or “vague,” have no such difficulty in determining what constitutes sexual harassment.
Following the decision in Harris, the Times opined that it “seems elementary” to conclude with the high court that sexual harassment is present whenever an employer “has so polluted the workplace with sexual improprieties that a reasonable person would find it hostile and abusive.” Now it is reasonable to wonder why, if the Times possesses the ability to know when an environment has become polluted with sexual improprieties, it cannot tell what qualifies as a pornographic exhibition. Indeed, it “seems elementary” that such discernments can and should be made. Alternatively, if obscenity is a subjective judgment incapable of being defined in law, why isn’t the same true of sexual harassment as well?
The master of inconsistency in all of this is the ACLU. Ira Glasser, executive director of the ACLU, maintains that “No one knows what obscenity is, or precisely how to define it. Like “false speech,” obscenity often lies in the eye of the beholder.” In its report on the Meese Commission Report on Pornography, the ACLU declared that “the entire concept of ‘obscenity’ is inherently subjective” and suffers from the problem of “vagueness.” Indeed, in its official policy on the subject, the ACLU argues that “all definitions of obscenity are meaningless because the type of judgment is inevitably subjective and personal.” And unlike the Supreme Court decision in Pope v. Illinois, which held that judgments regarding obscenity should be made from the standpoint of the “reasonable person,” the ACLU (at least in this instance) dismisses the concept of the “reasonable person” as a fiction.
If it is true that no one knows what obscenity is, the same is not true of sexual harassment. The ACLU, for one, knows exactly what it is: “The behavior is that which, because of its pervasiveness or intensity, creates a situation for the employee which a reasonable person in the employee’s situation would experience as harassment.” Does the ACLU have a machine that measures pervasiveness and intensity? Indeed, the entire definition sounds rather subjective and personal. Notice, too, that the ACLU has discovered the existence of the “reasonable person,” the exact creature the ACLU fails to locate when determinations of obscenity are needed.
What kinds of situations constitute sexual harassment? Among them is “where an employee is subjected to intentional unwanted physical contact of a sexual nature which is clearly offensive.” But in some circumstances the line between intentional and unintentional contact is surely in the eye of the beholder. And how can we truly discriminate between wanted and unwanted contact? Where, for example, does coaxing lie in this vision of sexuality? When is flirting not flirting? Are these not “inherently subjective and personal” calls? Furthermore, what are physical contacts of a sexual nature, and how do they differ, if at all, from the kinds of bodily contacts made in crowded elevators? And can we really be sure when such contact is “clearly offensive”? Some might see a hug as an expression of affection.
The ACLU’s policy on sexual harassment is so vague that even its officers can’t agree what it is. For example, the ACLU’S national office and its Florida office came down on two different sides on Robinson v. Jacksonville Shipyards. In that case, U.S. Judge Howell Melton ruled that male shipyard workers harassed a female welder with lewd comments and photos of nude women. The national office agreed with the verdict (the females are a “captive audience”), but the Florida affiliate interpreted the matter as a free-speech violation. Robyn Blummer, executive director of the Florida CLU, said that “just as the ACLU defended Nazis in Skokie, we’re going to do the constitutionally proper thing by representing an unpopular cause: sexist speech.”
In its reasoning, the national office advanced more inconsistencies, this time by claiming that the female workers were a “captive audience.” In its policy on the subject, the ACLU says that “the First Amendment is not inconsistent with reasonable regulations designed to restrict sensory intrusions so intense as to be assaultive.” But who will tell the reasonable from the unreasonable regulations? And how do we know when such intrusions have become assaultive? “Assaultive sensory intrusions,” the policy reads, “are those that are objectionable to the average person because of an excessive degree of intensity, e.g., volume or brightness, and which cannot be avoided.” So now we have this animal called the “average person,” a being that the ACLU seems incapable of resurrecting when determinations of obscenity are needed.
None of which is to say that decisions on sexual harassment should not be made. But what is necessary is an end to the phony game that liberals have long been playing when obscenity is the issue. Tough calls can and should be made. To do any less is to feign powerlessness and to abet an environment polluted with the kinds of sexual improprieties that even the New York Times occasionally finds objectionable.
William A. Donohue
On the Balkan Front
Editor’s note: The following report is provided by Robin Harris, who has recently returned from Croatia. He has been a policy adviser to the former British Prime Minister, Baroness Thatcher, in and out of office. He wishes to emphasize, however, that the views expressed in this article should be understood as his alone.
London — The ability of Western countries to misunderstand events in the former Yugoslavia is uncanny. Stripped of prejudice, with every allowance for naïve gullibility, and taking into account basic ignorance of the region’s history and geography, the roots of this misunderstanding lies in modern Western culture’s antipathy to moral judgment.
Christians — particularly Catholic Christians — are unsurprised by the evidence in the world of the working of that “mystery of evil” of which Saint Paul wrote to the Thessalonians. But the modern liberal, even if he has not read the work of Rousseau, presumes that wickedness has to be explained and so in part exonerated by reference to circumstances rather than to human nature in the raw.
So it is that the West, from the beginning of Serbia’s war of aggression against Croatia in 1990, has sought to be “even handed” in attributing blame. It has been incapable of believing that a monstrous political project — the creation of a Greater Serbia at the expense of her neighbor’s lives and lands — could have been developed for a century-and-a-half and then be put systematically and ruthlessly into effect at the end of the twentieth century. Western politicians have repeatedly spoken of the Serbian land-grab — first in Croatia and then in Bosnia-Hercegovina — as a “civil war,” until at last (with Muslims and Croats fighting one another for the 25 percent of Bosnia left to them) it actually became one. And now the suffering which accompanies that civil war is barely reported. We are told that there is “compassion fatigue.” But the Muslim and Croat refugees who have lost their homes and loved ones do not want compassion: they want justice. And our Western lack of confidence in moral principles means that justice is precisely what the West will not — indeed through its own relativism and confusion perhaps cannot — offer.
It is almost impossible to exaggerate the contempt in which the West is now held throughout the former Yugoslavia. For the Serbs, contempt comes easily. They always believed that Westerners were soft and our culture decadent and now they are convinced of it. Serbia’s next victim — be it ethnic minority or neighbor — will sometime soon pay the price of that. For the traditionally highly secular Bosnian Muslims, their abandonment by us is proof that what foreign fundamentalists had long been telling them is true: namely, that they can only look to Islamic nations like Iran to stand by them and that they must radicalize their own society along Islamic lines. The price of that shift of perception is most likely to be paid by the West in the form of international terrorism — a threat which has already been made. Yet, of the three main warring peoples of former Yugoslavia it is the Croats whose sense of rejection is most complete — and with good reason.
Croatia broke free of Serb-dominated communist Yugoslavia in order to rejoin a Europe from which Croats felt that they had been forcibly and unnaturally separated in contradiction to their history, culture, and faith. Yet the West — with the exception of Germany and Austria (and with the U.S. allowing its priorities to be distorted by France and Britain) — has from the first pursued a policy in which Croatia’s interests were to be ruthlessly subordinated to diplomatic convenience. Nor was that diplomacy in the slightest “diplomatic”: British Foreign Office Ministers and officials unashamedly manifest in their dealings with the Croats that attitude of ignorant arrogance which the British at their worst show towards foreigners.
The Foreign Office, always bitterly opposed to international recognition of Croatia as a sovereign state, now wants nothing better than an excuse to have economic sanctions placed on it and lifted from Serbia. Croats themselves find it difficult to believe that the West’s brush-off is not the result of some sinister strategy. But in this they pay Western leaders an undeserved compliment. Strategic thinking of any kind does not figure large in Western preoccupations. And were long-term calculations again to influence Western policy, Western interests would lie in strengthening — not weakening — Croatia as a check on a Serbia whose territorial ambitions against its neighbors may drag neighboring NATO countries (Greece and Turkey) into a new Balkan War, and whose government remains convinced that it can only live or die by the sword.
The smokescreen behind which Western policy towards Croatia is pursued is alleged concern about the fate of Bosnia, which it is repeatedly suggested Croatia wishes to divide up with Serbia. Some old-fashioned Croat nationalists do consider that Bosnia is “historically” Croat — as indeed in medieval times it was. But Croats of all persuasions know that Croatia needs nowadays a stable, secure Bosnia-Hercegovina as a buffer against an expansionist Serbia. Moreover, Croats in Croatia are acutely conscious that the great majority of ethnic Croats living in Bosnia are a thinly distributed minority which can enjoy any kind of security only inside a successful, tolerant, multi-ethnic Bosnia rather than inside some kind of “Greater Croatia.” The only exception to this attitude is to be found perhaps among some Croats from West Hercegovina, where Croats are in a large majority and where the so-called Croat Community (now “Republic”) of Herceg-Bosna was set up. Ill-judged as this move was, both as regards international perceptions of Croatia and insofar as it undermined Muslim confidence in their Croat allies, it was essentially the product of military necessity. For in the early stages of the Bosnian War it was left to the Bosnian Croats rather than panic-stricken, unprepared, and almost unarmed Muslims to defend Bosnia against the war launched from Belgrade; and it was only possible for the Croats to do this if they created their own separate command structure.
There is only one sense in which Serbia and Croatia are working together to divide up Bosnia. The Croats themselves have even coined a blackish joke about it: “In dividing up Bosnia, the Serbs get the land while the Croats get the people” — and indeed the Serbs now have over 70 percent of Bosnia’s territory while Croatia is supporting over 250,000 Bosnian refugees. That is on top of a similar number of Croatian citizens driven from their homes by Serbs in the occupied Croatian territories (where UNPROFOR continues to preside over constant ethnic cleansing). Only about 35 percent of the cost of providing for these refugees and displaced persons is met by international aid. No country has ever taken on a burden of this size relative to its population. It is the equivalent of the United States suddenly playing host to 12.5 million aliens as well as an equivalent number of American citizens deprived of their homes by, say, some cataclysmic disaster. Or perhaps not the “equivalent” — for it would be necessary to hypothesize a situation in which those aliens were from an ethnic group whose armies were daily killing American families living abroad, as Muslim armies are doing to Croats in Central Bosnia.
Of course, it would be quite wrong to suggest that all Croats are innocent victims or spectators. There was a well publicized massacre by Croats of Muslims in the village of Ahmici in the early stage of the Croat-Muslim conflict, for which the perpetrators have yet to be brought to book. Moreover, in Varazdin (northern Croatia), where four large refugee centers are caring for some 3,000 people, you can find Muslims driven out of their homes in Western Hercegovina. But it is significant that they fled to Croatia, not to Muslim or Serb territory, and they are quite clearly in no fear of the Croatians on whose charity they have preferred to throw themselves. Indeed, in all the larger towns of Croatia still under Croatian control, Croat families have accommodated Muslim and Croat refugees and displaced persons — first in their holiday homes and then in their own main homes without receiving any reward except gratitude. In Zagreb alone there are some 28,000 Muslim refugees, some 6,000 of whom are accommodated by Croats. In many cases, due to the depression of the Croatian economy, which the West is considering depressing further by sanctions, the hosts are themselves barely able to make ends meet, for unemployment and inflation are high and salaries low.
R and his wife M have made their Zagreb flat available to three Muslim mothers and children, driven from their homes by Serbs — the latter having shot one of the women’s three brothers, her husband, and her son before her eyes. The three Muslim families spent their first few months packed into an overcrowded room adjoining the Zagreb mosque until M decided that giving food and clothing to refugees was not enough and enquired at the mosque what more she could do. Her new guests are the result. She and her husband are members of a charitable Catholic organization. They are quiet and modest and clearly consider themselves “unprofitable servants” who have simply done their duty. They now live in a smaller flat provided by M’s sister. M and others are now refurbishing another house suitable for four more families.
F is a Muslim from Sarajevo. She lives — without paying rent — with her daughter on the ground floor of a Zagreb house belonging to a Croat who spends most of his time in Gospic. Gospic is regularly shelled by Serbs — from within the UN zone — but manages to produce a good crop of potatoes. Her landlord brings her a sack or two when he can. She works as a volunteer with the Red Cross, which provides her not only with one square meal a day but — still more important — with friendship. In her sitting room are flowers and food given by the Croat women with whom she works. She jokes that there is a kind of competition as to who will be more generous.
Not everyone is this sort of saint. The Croats expelled by Muslims are angry that other Muslims are receiving the same standard of care as they do in the refugee centers — three square meals a day (including fruit), warmth, immediate medical care, and free schooling for the children. That anger risks boiling over, and as thousands of Croats of this sort pour out through Split, the authorities are having to try to separate them from the Muslims. The anger itself is not as simple as it appears. For it burns not so much on their own behalf, as on behalf of their families and friends trapped in central Bosnia by Muslim armies, and it is increased by the almost exclusive Western political and media concern with the (real) suffering of the smaller numbers of Muslims trapped in Mostar.
The only significant changes in territorial control now taking place in Bosnia-Hercegovina are all at the expense of Croats and in favor of Muslims. Four Croat enclaves containing some 150,000 people — many refugees from other Croat towns and villages which the Muslims have taken and ethnically cleansed — are now under siege by Muslim armies in central Bosnia. The intensity of the slaughter is much greater even than at the height of Serb aggression, for while the Serbs relied on long-distance shelling the Muslims are pressing infantry attacks with small arms and knives. One reason why so little is heard of what is occurring is because the Muslim armies — with a few exceptions — refuse to let foreign journalists and camera crews into these areas. But it is difficult to avoid the suspicion that media manipulation for political purposes is also an important factor.
Western Governments and the U.N. are desperate to achieve some kind of settlement — any settlement — at Geneva which will allow them to wash their hands of the problems of ex-Yugoslavia. The sticking point now is the Muslims who lost their territories in the war with the Serbs and so turned on the Croats of Bosnia as a softer target. If the Muslim armies can achieve continued successes in central Bosnia and expel the Croats from these regions, they will have been at least partly compensated — if only at the expense of other victims. It is therefore in line with the interests of the peace negotiators to see the Muslims succeed in this project without Western public opinion being alerted to what is occurring. Then the Muslims will consider it worth signing up to a map redrawn in significant ways through military action in their interests.
Yet, however it is to be explained, the failure of the Western media to expose the atrocities which are now occurring simply means that they will go on happening without those involved fearing the consequences. Anyone who imagines that such events are a construction of Croat propaganda should speak to those who managed to flee.
S’s story, however, shows that even when facts become known this is no guarantee that they will not be distorted. She had first fled from Travnik to Croatia with her children and a friend a year or so ago, as the Serbs closed in on this fairly evenly balanced Muslim-Croat town of 70,000 people. But she decided to return with her family as the Muslim-Croat alliance seemed to be holding the Serbs at bay. Then came the huge influx of Muslims, who soon outnumbered the Croats by seven to one. Incidents began. Croat houses were broken into; a Croat commander was killed. For their part, the Croats tried desperately to avoid tension rising, for they knew the consequences. What they did not know was that when the time came for one group of Muslim soldiers to relieve the next, the former did not re-enter Travnik but went out into the woods where they massed. Then at night, while the HVO were on the front line and unable to protect civilians, the Muslims struck. Croats were dragged from their homes amid random killing and mounting panic. A running crowd of several thousand, including S and her children, ran in the only direction they now could — towards the Serb lines on Mount Vlasic. There they were robbed, but not raped or seriously maltreated by the Serbs — ironically, S met some of the Serbs who had once been her neighbors in Travnik, who saw that she got some food. Then the International Red Cross organized transport for them to Croatia. Her parents and other relatives, however, remained behind in Novi Travnik and are now cut off from food, supplies, and contact by besieging Muslim armies. The events surrounding the fall of Travnik were widely taken by Western commentators, not as proof of the aggressive intentions of the Muslims, but of the tendency for secret deals between Croats and Serbs. And so is truth war’s victim.
The West expects people like S and her family to refrain from acts of revenge against Muslims. It expects Croatia’s weakened economy to bear the greater part of the burden of looking after refugees and displaced persons, at a time when many Croat families cannot afford the standard of living the refugees themselves enjoy (insofar as that word is appropriate to their condition of cosseted despair). It expects Croatia not to retaliate when cities like Karlovac, Zadar, and Osijek are daily shelled by Serbs from within so-called United Nations Protected Areas, and not to intervene to protect Croats being driven out of Bosnia. And the odd, near miraculous fact is that these expectations have so far been almost entirely fulfilled The real explanation of this achievement mirrors the real explanation of how such horrific suffering has arisen in the first place — but in this case through the “mystery of love” not evil.
Croatia is a Catholic Christian country in much more than name. Confessional queues stretch around churches; at Sunday Masses there is standing room only. At the religious heart of Zagreb, the shrine of Our Lady of the Stone Gate, the rosary is constantly said and passers-by halt to pray for their loved ones and for peace. This devotional life is echoed in practical charity — both collective and individual. The Catholic charity Caritas is at work in every diocese, cooperating closely with its Muslim equivalents to care for the poor and homeless — Croat, Muslim, or Serb. The huge effort to organize accommodation for refugees is appropriately enough in the hands of a priest about whose qualities his staff speak in tones of affectionate awe. And somehow the visitor to Croatia who sees all this comes away believing that out of the crucified humanity of the former Yugoslavia can indeed come redemption.