- It's one thing to say that politics has always been a tough business, but it's another to confront the reality that public insults have become more frequent, more intense and more personal.

Today's guest explains this is not an accident, but often part of intentional efforts to hijack public issues.

She's Ruth Colker, this week, on "Story in the Public Square".

(uplifting music) Hello, and welcome to "Story in the Public Square", where storytelling meets public affairs.

I'm Jim Ludes from the Pell Center at Salve Regina University.

- And I'm G. Wayne Miller with the Providence Journal.

- This week, we're joined by Ruth Colker, distinguished university professor, and Heck Faust Memorial Chair in Constitutional Law at the Moritz College of Law at the Ohio State University.

She's also the author of a new book, "The Public Insult Playbook, How Abusers in Power Undermine Civil Rights Reform".

Ruth, thank you so much for being with us.

- My pleasure.

- So, you know, when you use the term public insult, what exactly are you talking about?

- What I'm talking about is the way we hear politicians and people in power deliberately use terms that criticize other people in a way to sort of put them down.

And so, for example, as you know, in the book, I talk a lot about the disability context, and basically what people have done, who don't really believe in the disability rights, is they'll call these people who are seeking accommodations, you know, fraudsters and, you know, drive-by litigators, in ways that disparage their very essence, their very claim, so that people won't take seriously the really good and valid arguments that they are bringing to bear.

- You make the case that this is really a remarkably effective tool, that I guess opponents of progress use, but is this just a conservative tactic?

- Well, it's more effective when used by those people I call abusers in power, which historically has often been people who are also politically conservative.

It's not that the political left can't seek to use some of these tools, but in my reading of history, my using of contemporary examples, it just isn't as effective for whatever reason when used by the political left.

So it is a tool that I think is disproportionately used effectively by the political right.

- So you mentioned people with disabilities, but there are certainly other groups as well.

Maybe you can talk about some of those and how abusers use this, immigrants, for example.

- Well, yeah, immigrants is certainly one example among many.

You know, we certainly saw during the early days of the Trump administration, when they were trying to ban all Muslims from coming to the United States, and Trump, during his campaign, right, when he talked about Mexicans as rapists and drug dealers and all these kind of things.

So you take this whole group and you characterize it in this unbelievably negative way to justify an enormous abuse of executive authority.

The idea that we would ban all Muslims from immigrating the United States, or ban all Mexican Americans from immigrating the United States, I mean, that is so contrary to law and policy in the United States, but then they go in with a sort of straight face to try to justify this by castigating the whole group.

And then that changes the conversation.

All of a sudden people are defending whether all Mexicans are rapists rather than whether people have a constitutional right to seek entry into the United States on equal terms, as Congress has provided.

So it really displaces the conversation in a way that makes it hard for the political left to maintain traction, to argue how constitutional rights and other important rights are being abused.

I can give other examples.

- And what about- - Sorry.

- No, what about African Americans?

That's another group that abusers use or abuse.

- Yeah, so, you know, in the last chapter of the book, I talk about the Black Lives Matter movement.

And I think that many people within that movement have sort of gotten the message of my book.

Before I wrote the book, so maybe I should say I learned from them, that's probably a fairer way to describe it.

But as you may remember, when someone like George Floyd was murdered, or someone like Michael Brown was murdered, immediately, the political right would go through their records to say that they had, you know, shoplifted once when they were eight, or they had thrown up, you know, something in the classroom when they were 11.

And that somehow, because of these things that you might comb from their past, it's okay that they were murdered right in cold blood.

And so what the Black Lives Matter movement has done I think very effectively, is anticipated that kind of onslaught against people.

And so people are now posting, you know, photos of people, after they've been murdered, in their high school graduation gown or with their children in their arms, or with friends having fun at a party, to sort of show that this is who they really are as people, they're real people like the rest of us.

And of course, no one deserves to be murdered the way these people were murdered.

And so I think the Black Lives Matter movement is actually a good example of how to anticipate that the political right will take that step and anticipate it by setting forth your own positive images.

So the conversation can go back to, was this person murdered?

Was that murder permissible under US law?

- You know, one of the things that I, when we were before we started taping, I said to you that I, when I first saw the title of the book, I expected one thing, and this is really a much richer, deeper, thoughtful exploration of the use of public insults as a political cudgel, political tactic.

But also how can the people who are typically victimized by this approach sort of push back.

And one of the things that I found, when I realized this was a different kind of book, was your discussion of the ACLU and civil libertarians protection, typically, of hate speech and insults as a matter of free speech.

When did this occur to you that this was something that we weren't gonna be able to legislate our way out of, or necessarily control, but we needed to do something the way we approached issues, the way people who are advocates talked about issues.

When did that realization occur to you?

- Well, as I say in I think the introduction to the book, I was reading a blog by my friend, Amy Robertson.

Amy is a really gifted civil rights lawyer who principally does disability rights advocacy.

And Amy wrote this amazing blog where she pointed out how in these disability accessibility cases that she was often involved in, but not always, right?

Could have been other people bringing these cases.

But the defendants were going into court and castigating the plaintiffs by saying that they were on welfare, as if they were welfare cheats, or what were they doing so far from their home, trying to go to a hotel, which is of course, when you always use hotels, is when you're further from your home.

And they would call their lawyers drive-by litigators.

And they really tried to castigate these plaintiffs who were just trying to get into a hotel and restaurant, often used a wheelchair, and just couldn't get access to commercial facilities.

And she documented how effective that strategy was, that some judges were accepting arguments that the statute really doesn't permit because they seemed to be swayed by this use of insult.

And so after reading her blog, I contacted Amy and we actually collaborated a little bit and looked at more examples of that in the disability context.

And I started writing a paper on that, and I gave a paper on just a disability issue at the University of California, Berkeley, and then a University of California editor approached me, from the press, and said, you know, this is a great topic.

Do you wanna write a book about it?

- [Jim] Yeah.

- And oh, you know, you're right.

This is not a strategy just against people with disabilities.

This is a strategy that really all of my work, throughout my 36 years as a law professor, has documented sexual harassment, abortion rights, racial relations, immigration.

These are all topics I'd written about for decades, but I hadn't pulled them all together with this one focus.

So it was just a treat to have a chance to go back and look at them all.

- About when did you give that paper out at UC Berkeley?

- Mm, 2018 or so?

- 'Cause this was the question that I had as I read this.

My initial instinct reading this, was that this was gonna be sort of about the Trump era and the former president's penchant for using insult.

And he features- he's in this book for sure.

But this is a bigger phenomenon than just the antics of Donald Trump.

- Yes, and that's a really important message that I like to emphasize about the book.

And this is where my editor really encouraged me.

Remember I started the book because of the disability rights focus, and they had very little to do with Donald Trump.

There's one Donald Trump example when he insulted the Serge Kovaleski, but that's it, in the disability context.

And when I was talking to my editor, she said, don't make this book about Donald Trump.

Everybody's writing about Donald Trump.

This issue that I spotted, I spotted before Donald Trump was president.

I was thinking about it, as I said, for decades, but didn't know it, right?

It sort of had to come to the surface and percolate it.

And I think it's really important to understand that Donald Trump is an example, but he's not the cause.

And he's not the major example.

This is an historical phenomenon, and this is just the way it's working out in the present moment.

- So who are some of the other people or groups who have used this?

You mentioned obviously just now Trump, but there are many others.

Maybe you can give us a short list or a historical overview?

- Well, it would be hard to describe them all, but let's just talk for a moment about the abortion context.

We haven't talked about abortion yet.

And abortion is obviously in the news a lot with the Supreme Court still allowing the state of Texas to basically ban abortion for all women in that state.

And in the abortion context, I think it's really important to understand the success that the political right has had, in castigating women who are seeking to terminate pregnancies, to make them evil demons, and also to take the fetus and amplify it, so that we've all seen these posters of fetuses, you know, six feet tall, you know, sucking their thumb as if they live independently outside of woman's body.

One of the things I often say when I talk about abortion is that at six weeks, which is when Texas is now banning abortions, the fetus is the size of a lentil.

But yet in the public's imagination, the fetus is sitting external to a woman's body, sucking her thumb, as if we don't even need women, right, to be pregnant, that we can just do it without them.

And so we have so demonized pregnant women that they have, you know, they always hide that they have abortions.

They never tell anybody.

They often don't even mention that they've had a miscarriage because somehow that makes them, you know, less than fully human or fully female.

And so the abortion, the anti-abortion rights movement, has completely taken over the public imagination in thinking about abortion rights.

And I think that's part of why we're seeing this court prepared to overturn Roe, and feel like it can get away with it because it is so completely taken up the airwaves in sort of how we now conceptualize abortion.

- It's fascinating to me because your argument is deeply grounded, you're a constitutional law scholar, and you're deeply grounded in the case law and the history and the understanding of law in the courts.

But this is also a political and public relations playbook you're describing as well.

- Right, and so the lens I bring to bear is one as a constitutional law scholar, right?

So I know what people say in these briefs.

I know what's being said in the airways, I know what kind of arguments have proven to be persuasive.

And so I'm taking that insight I have from decades of doing work in the constitutional law sphere to also seeing how, of course, those same tactics are also successful in the political marketplace.

Which shouldn't be surprising, I mean, we're talking about what persuades people, right?

Judges are people.

The rest of us are people.

And there are ways in which these really negative, castigating, insulting messages are effective, especially when they're used over and over.

They pound at us, you know, and abortion, I think is the best example.

They pound away at us with these blown up pictures of fetuses sucking their thumb.

- So there's another group that you write about, and that's the LBGTQ community.

Talk about how they are victims of this as well, and who might be doing the victimizing or the abusing.

- Well, the gay rights context is really fascinating.

And so it's been so amazing to me.

I've worked in the gay rights sphere since college, I've been doing this work, this activism for forever.

And so, you know, the political right for so long had portrayed, especially gay men, as pedophiles, right, as rapists, that we have to be scared of having our children in the same room with them.

And that's why they couldn't be school teachers, daycare workers, anything around children.

And so that message of thinking of gay men in particular as pedophiles was tremendously effective for so many decades.

And one of the things that gay rights movement did is it understood the need to change the airway, to affect media and movies and film and, you know, cultural messaging.

And I think that that was quite effective, and one could say they rehabilitated their image in a sense, you know, by understanding the need to do that.

And it was only when the public was more accepting, right, that the courts could start making some advances.

The courts aren't gonna lead, they're gonna follow.

But even when the courts did make some advances, one of the most important cases is Romer versus Evans.

It had to do with the state of Colorado banning any kind of gay rights ordinance and the voters of Colorado voted for that initiative through the ballot box.

And I've seen the clips of the newspaper ads, the commercials that were run, that, you know, were so blatantly homophobic, you know, just again, described gay men as pedophiles.

So we had to worry about them molesting our children.

And the voters of Colorado voted in favor of that anti-gay initiative and the Supreme Court, in one of its first gay rights case, overturned that Colorado initiative.

But that certainly was the huge impediment that the gay rights movement had to overcome in order to gain marriage equality and some other rights that we've seen today.

But the transgender community of course, is still facing that same kind kind of onslaught.

It's a new story, right?

And so that's the contemporary challenge in the gay rights community, is to deal with the transgender issues.

- Ruth, you draw a distinction between the ability of individuals to seek redress for their own individual claims for their votes, or their rights being repressed, and the structural change that you are argue is needed on a lot of these issues.

Can you explain for our audience a little bit that tension between the individual right to seek redress and then the need for structural reform and how these public insults play into that dynamic?

- Yeah, that's an important and complicated story.

So let's take the example of sexual harassment, 'cause we haven't talked about that one yet.

That's one of my chapters.

So in the sexual harassment space, we certainly have seen, especially in recent years, you know, with the Me Too movement gaining strength, more and more women coming forward and telling their individual story of having been harassed.

And we have seen some important men, right, come down, when courts and others believe their stories.

Not in every case, right, but we have seen some success in that way.

So that would be a situation where the law, Title Seven of the Civil Rights Act of '64, can be used on individual basis in some cases to get women some relief.

And that's good, and I applaud that, that's fine.

But we have a broader problem that the most likely claimant in a sexual harassment case to file a claim with the Equal Employment Opportunity Commission is a waitress.

Someone who works in the restaurant industry.

They face horrific sexual harassment on a daily basis.

And as we know, the only way they can get a decent standard of living is through tips.

And in most states, federal law allows states to pay less than minimum wage, less than an hourly minimum wage to those workers.

So they have to earn money through tips.

Well, how do you earn money through tips?

Unfortunately, in the world in which we live, often, that's to sexualize yourself, right?

To have to portray yourself in a way that you might consider to be demeaning, but you're just trying to make a living out of it.

And so what I argue in a sexual harassment chapter is we need structural change to protect women, from having to on a daily basis, face this kind of sexual harassment by insisting that all restaurant workers are paid at least minimum wage.

And of course, then we should raise minimum wage, but we're not gonna get to a place in which women, principally, who work in the restaurant industry, are going to be able to be free from sexual harassment until we make their living less dependent on tips.

So we can see there's a structural problem there.

Unless we solve that structural problem, we're not gonna solve the problem of sexual harassment, one woman at a time, one restaurant worker at a time, bringing some kind of claim of sexual harassment.

- In fact, you write, and this was in the introduction.

I found this so powerful.

"It is easier to throw Harvey Weinstein or Derek Chauvin in jail than to fundamentally change society so that all people can live and work in an environment of dignity and respect.

We need to measure success through a structural change rather than through isolated examples of bad actors being imprisoned."

That phrase "so that all people can live and work in an environment of dignity and respect".

Why is this something that we even need to debate?

Why isn't that automatic?

- That we live in an environment where we are treated with dignity and respect?

- [Jim] Yeah.

- There's people who have power and they're so used to using power in way to feed their ego and their own selfish needs.

I mean, you know, every day we read about yet one more public figure having engaged in inappropriate conduct, right?

Most recently I think there was the President of the University of Michigan.

And I think someone a, Florida International University, right?

It was almost in the same day, we had this news article about them leaving their positions because of allegations related to sexual harassment.

And you go, yeah, of course they did, right?

I mean, I don't- are you ever surprised?

No.

Because people who have power are just used to using it in those ways and I'm sure they don't look in the mirror and go, oh, I'm a horrible person.

I'm a sexual harasser.

They just are doing what they consider to be normal.

But that normal thing they're doing, which is part of our culture of white supremacy, harms lots of other people along the way.

And so, you know, to change that it's gonna take, it's really not realistic.

We can make some progress, right.

But we're not gonna completely change.

We're not gonna revolution in that sense.

- So if you look at the history of this country, public insults are not new, but what is relatively new is social media.

Talk about the impact and the effect and the power of social media with public insults, because it's a whole new world, it seems to me.

- I agree, and so when I talk about this book, people often wanna say, oh, when can we go back to that time of civility?

And I'm like, when was that?

(all laughing) I missed that.

I was born in 1956, so I've been around for a while.

And the fifties and the sixties were not a time of civility anymore than today was, but the incivility has changed, right?

Because of the power of the media, of all these social channels that people have to communicate.

And it makes it obviously much easier for these negative, harmful messages to find space, right?

Because all you need is one person tweeting something and it gets retweeted tens of thousands of times.

And now it isn't that one person, but it's been magnified in these ways.

So there's a bullhorn, right?

And I'm, you know, there've been a lot of studies now about the damage to young people through the bullhorn that, you know, young women in particular, are growing up with just some really terrible image issues and other kinds of challenges because of all the stuff they see in the public media.

And I don't have an answer to that because we're obviously not gonna be able to close those channels of media discussion.

We can anticipate it more, we can have more education in K through 12 schools to let young people know that this is happening.

And, you know, that's the only answer I have in the book for most of this stuff, is if we anticipate it, we know it's coming, maybe we we're better equipped to respond to it effectively, instead of being surprised each time, right?

We shouldn't be surprised, right?

We should go, oh yeah, of course.

Now how could we have better messaged to anticipate that?

- How optimistic are you?

I mean, so the story you tell is pretty daunting that the, you know, our politics, our public debate and discourse, the stories we tell in the public square, as it were, even the courts have been infected by the use of public insults.

If you care about progress, if you care about civil rights, if you care about social justice, what's the basis for hope?

- Yeah, that's a hard one and it gets harder every day.

Today, the Supreme Court announced that it's granted cert on two cases involving the affirmative action.

And so they're gonna bite, they're gonna buy this white victimhood message of innocent victims being harmed by affirmative action and get rid of affirmative action.

So that's the next thing apparently on their agenda.

So it is hard to be optimistic when it's obvious where things are going right now.

But my source of optimism is the young people that I spend my day with.

I teach law school.

My students are around 25, 26 years old, and they're so passionate and they care so much about advancing civil rights, and human rights, environmental rights.

I know they're gonna be there in the public sphere trying to make progress.

And they're sophisticated.

They've grown up with social media in a way that I haven't.

And so, you know, one thing people sometimes say is all politics is local, which in some sense is true.

And these young people are really willing to work at the grassroots local level, to sort of make change in their communities, to be at the school board meetings, to be wherever they need to be, to counter the public insult playbook.

And so that's my source of optimism.

The young people.

I think they're really special.

They've grown up in an awful time with COVID and, you know, George Floyd being murdered, and they've seen so much horrible stuff, but they also have a lot of passion energy, and I'm just hoping they can channel it in the ways that will improve the society in which we live.

- Ruth, we've got about a minute left and you've touched on this already, but you write clearly in the book that the folks of the Black Lives Matter movement are better at anticipating the insults, and sort of weathering that storm as it were.

What's the lesson that other movements, other social justice movements, ought to be drawing from the way the Black Lives Matter movement has responded to these insults?

- Yeah, I think that all movements need to anticipate these insults.

And so if you just take an example of, you know, COVID and our response to COVID and the flooding that's taking place at the local school board level.

Instead of being surprised by it, those of us who care about education, care about safety, need to anticipate, that of course that's going to happen to a school board meeting.

How can we come in and be effective and anticipate this?

I think, you know, I said before, instead of being surprised, we need to come in prepared to know those insults are gonna be levied, and ready with our own positive images, our own cause for structural reform, our own arguments, we're gonna have to be twice as prepared.

But I think that we can be more prepared when we're not surprised.

And we anticipate that those public insults are gonna be thrown at us.

- Should those folks be willing to throw some insults of their own?

- I haven't seen any evidence that that works.

You know, just because a tactic is good for one person, it doesn't mean it's necessarily good for the other.

And so, you know, I welcome examples of the political left using public insults effectively, but I didn't find any in my book.

If I did, I would've reported them.

So no, that's not a strategy that I recommend.

I recommend instead, us coming forward with more positive images, fact based argument, to just be better prepared, so that these global stereotypes, that public insults are usually a part of, start looking more silly, because it's obvious that the emperor has no clothes.

That they're just launching stuff that is just not true.

- Well, the book is "The Public Insult Playbook".

Ruth Colker, thank you so much for being with us.

(quiet uplifting music) That is all the time we have this week.

But if you wanna know more about "Story in the Public Square", you can find us on Facebook and Twitter or visit PellCenter.org.

For Wayne, I'm Jim, asking you to join us again next time, for more "Story in the Public Square".

(acoustic guitar music)