Why you should care
Because it’s time to poke fun at ridiculous hate.
I don’t want my daughters associating with them. They shouldn’t be teaching in our schools, swimming in our pools or even sharing our zip code. Yep, I’m an anti-racist, and so what? But rather than tell you to hide your daughters, I have come up instead — to steal Baldrick’s famous line — with a cunning plan.
We live in an age where we can “out” radical professors and scary drivers online. We can rate our doctors, online purchases and dining experiences, warning others to steer clear. And the president-elect of the world’s flagship democracy plans to launch a Muslim registry. So I say it’s high time anti-racists embrace their inner Big Brother and compile a public list of racists. Imagine the service it would provide to would-be employers and lovers: Never again would they accidentally employ or sleep with Mr. or Mrs. Hate.
If a private citizen wants to set up a racist registry, there’s nothing to stop them legally from doing so.
Jamin Raskin, American University law professor
The trouble with a government-sponsored Muslim registry comes from that pesky document known as the U.S. Constitution. “There are a number of constitutional provisions or principles that would be directly violated or at least implicated by such a registry,” says American University law professor Jamin Raskin. The First Amendment’s guarantee of free exercise of religion generally makes “rounding people up and compelling them to register on a government document because of their religious affiliation” a no-no. Then there’s the matter of due process, including the principle that we punish people only for what they have done, not for their associations, Raskin adds.
Of course, the government has at times overridden fundamental rights (see Japanese internment camps), but only for purposes deemed compelling and only for narrowly tailored policies. At any rate, an official registry of racists would have all the same problems as an official Muslim one, argues Raskin, apart from the freedom of religion bit — but with free speech, free association and free thought thrown in to boot. “The government could not declare certain beliefs off-limits,” he explains.
Legally speaking, though, private individuals have no such red light. “If a private citizen wants to set up a racist registry, there’s nothing to stop them legally from doing so,” says Raskin. That protection falls under the First Amendment too. We can make lists of other people as we like, says Richard Albert, associate professor at Boston College’s law school, just as we can have a dinner party and decide to invite only Black people.
But there’s one giant hurdle: accuracy. Should we get it wrong and accuse a non-racist of being a racist, then we open ourselves up to a big ol’ libel suit. And racism is a vague term to define. There are out-and-out white supremacists, sure, but “to the extent that anyone would put somebody else on there who’s not an obvious racist, that just dilutes the moral clarity of the situation,” says Raskin. He adds, “You better be prepared to defend your list.”
In the interest of a defensible list, then, here are a couple of ground rules:
- No accusing relatives. While you may enjoy outing Uncle Ted, think of next Thanksgiving and all the angst this will bring.
- You must have two forms of documented proof. Newspaper clippings, audio/video from public places (where they’d have no expectation of privacy) of racist slurs, blogs or social media posts.
The bar is far higher for public figures and defamation suits. They’d have to prove you were both wrong and reckless with your accusations to make it to court, explains Raskin. But for private Joes, the standard is lower: They don’t have to prove there was recklessness but simply negligence — namely, that a reasonable person would not have come to the same conclusion.
The message? Don’t screw it up. And please note: Both of my law professors hate the idea of a racist registry.