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Confusing Intent and Tactics

One of the things that we often see — and often engage in ourselves, if we’re being honest — in political and religious arguments is the assumption that any disagreement over tactics is really due to a disagreement over goals. If we think an idea we oppose will lead to some negative result, we often presume that the person advocating that idea must intend the result, thus presuming evil or immoral intent rather than a mere disagreement over how best to achieve a goal or how to balance competing values.

Sometimes, of course, that assumption will turn out to be correct. Some people really don’t share our values and goals and their arguments against a policy we favor really are the result of a desire to thwart the attainment of that goal. But sometimes it’s going to be flat wrong and we need to be careful about making such an assumption without clear evidence to support such a conclusion. Let me give my own example.

I am a staunch opponent of “hate speech” codes on college campuses. I think they’re unconstitutional and a bad idea on pragmatic grounds as well. I have argued that the ACLU, which at least tacitly opposes such codes and has challenged them in court a few times, should devote serious resources to a project to bring them to an end, as the Foundation for Individual Rights in Education has done (without nearly as much funding or clout).

I’ve written thousands of words in opposition to laws that criminalize hate speech in the name of human rights in Canada and many European countries, against laws that forbid Holocaust denial and so forth. I’ve criticized Canada, for example, over what happened to Stephen Boissoin, a pastor who published an anti-gay letter in a newspaper and spent years having to defend himself in a series of tribunals and court cases (he was finally exonerated, but it took years of time, money and difficulty to reach that point, for nothing more than expressing his opinion).

It would be easy for someone to assume that my opposition to such laws is rooted in some indifference to the plight of gay people or other minorities. Anyone who knows me or has read my writings at all over the last 9+ years would know that’s obviously not true, of course. I am a passionate advocate of LGBT rights and have actively worked in favor of it for two decades. Much the same is true of equal rights for other minorities that have long suffered discrimination.

But I’ve still had people who disagree with me on whether there should be hate speech laws declare that I must be indifferent or insensitive, particularly to the plight of the LGBT community. Because it’s a lot easier to just declare someone to be morally deficient than to engage in a good faith substantive discussion of the issue. It’s a cognitive shortcut that allows us to dismiss our opponents rather than engage their arguments on their face. And again, sometimes that cognitive shortcut will be correct. But we should not assume such a thing without evidence if we care about being reasonable.

And as in the case of several other similar posts I’ve written lately, I’m not just pointing fingers at others. I’ve done the same thing, many times. But it’s an intellectual lazy habit and it’s something we should all strive to avoid.

Comments

  1. slc1 says

    I’ve written thousands of words in opposition to laws that criminalize hate speech in the name of human rights in Canada and many European countries, against laws that forbid Holocaust denial and so forth.

    I’m not entirely comfortable with the laws against Holocaust denial but I find it to be completely understandable in Germany and Austria, given the history of those nations. I would be opposed to such laws in the US or Canada which do not have that history.

  2. says

    “I think they’re unconstitutional and a bad idea on pragmatic grounds as well.”

    Kind of a nit pick (as don’t get me wrong I mostly agree with the article at large) but I always dislike arguments of the style ______ is unconstitutional. It always comes off as an argument from tradition. I wish we could just try to focus on the merits of the issue and or values that make it unconstitutional rather then the fact that it is unconstitutional in and of itself. This can get especially silly when the unconstitutionality of something in one jurisdiction is used as an argument for something in another country (which to be clear Ed hasn’t done here that I noticed but I have seen done elsewhere by others).

  3. iknklast says

    michaeld: I understant your argument, but I think it’s really not about tradition, it’s about the legal basis of claiming a right. In a court of law, it’s about the legality or non-legality, and the idea that it is unconstitutional is (in this country) the most crucial argument you can make. The constitution serves as the foundation of our government, and that argument is the strongest we have when we’re dealing with the Congress or the Courts. They are sworn to abide by the Constitution. If we think the Constitution is just a tradition, then we should discard it and put something else in its place; otherwise, we need to recognize the importance of that argument. The core value being espoused here is that the Constitution provides protection for minority rights.

  4. Crip Dyke, MQ, Right Reverend Feminist FuckToy of Death & Her Handmaiden says

    Michaeld –

    “unconstitutional” is an argument from tradition?

    Wow, um, no. Brown v Board, much? Sweatt v Painter? Plessy v Fergusson much? Dred Scott much?

    I put these three cases together not only because they are related in constitutional history, but because they each had at least 2 sides, and they certainly had 2 sets of advocates. Each set was advocating constitutional requirements.

    —> You may try to argue that one side was asserting that something “was constitutional” not that it wasn’t. That’s correct and incorrect. To say that something “is constitutional” is to say that the constitution forbids certain levels of interference with that activity. To say something is not constitutional means that the constitution forbids certain levels of facilitation of that activity.

    Is something not prohibited on constitutional grounds, or is government punishment of that activity unconstitutional? See what I mean?

    So for every argument for tradition, there’s an argument for a break from tradition. If you think otherwise, it might be wise to consider the availability heuristic and also the biases that affect who says what in (or on, if you prefer) US media.

    =======================
    As a separate issue, I’m an in-your-face queer on the internet – by ‘nym if nothing else – and I’ve never felt that Ed’s motives were in question. Never once. He’s written passionately and in a manner that I would imagine is effective (though I honestly can’t say my perspective allows me to accurately assess the mindset of the “maybe queers have rights, let me think about it” crowd).

    The issue that I have came up once quite memorably, but I have a vague memory that it’s come up before, I just can’t remember specifically when. The one I remember clearly is the Lively lawsuit based on allegations he conspired to take away the rights of Ugandans.

    When someone seeks to do something illegal, and actually takes steps to accomplish it, under US law, all those who discussed any plan to do such things are at risk of criminal liability for conspiracy.

    The suit against Lively was that 1. laws prohibited certain actions by members of the Ugandan government. 2. Members actually undertook some of those actions. 3. Lively conspired to cause those outcomes.

    The lawsuit sought civil – not criminal – liability.

    Ed blasted that lawsuit and the fact that the court would entertain it. And here’s where I part company with Ed: it seems that he sometimes loses sight of the fact that abuses that the US condemns oversees it practices here. Lively could be jailed for such actions within US jurisdiction, but would be only held liable for money damages under the suit filed.

    Me personally? I’d much rather have a court declare that I owe someone money than declare that I am to go to prison.

    Now, I’m not saying that Ed is unique, or that I’m free of this type of mistake. The US really does have some of the strongest free speech protections in the world, if not the strongest [that would require more research than I’ve done – a LOT more – and a judgment call when deciding which issues of speech are more important.

    But in using the US has led Ed to be outraged at some things that seem very non-controversial in the law. If someone plans to injure you. If that planning and knowledge is put in service to someone else’s efforts to injure you. If those efforts to injure are otherwise illegal (this isn’t a plan to hit you during a boxing match that is permissible, even regulated, and carried out consensually according to law). If you don’t then have a change of heart and take all reasonable steps to stop the plan from actually injuring you. Then, when you are injured, the person who did that planning and provided that knowledge (though I hate to call it “knowledge” in Lively’s case) can be held accountable in civil court for injury done.

    I think Ed goes overboard, but absolutely in a well intentioned way. I don’t think that he has greater desire to protect Lively because of Lively’s opinions on killing and imprisoning people for private conduct and/or public speech. I’m quite sure he finds them entirely odious – as do I.

    There’s a small possibility that, because I know that he recognizes it is when we find an opinion odious that we are most at risk of tossing aside protections that should be provided everyone, he might on some occasions focus for a moment too long on whether the speech is odious and not whether the speech was conspiratorial. **

    I just think that a view from the States, when so many other places in the world – even democracies that share similar philosophical foundations – screw speakers over so badly, affects his view in a way that misses some important issues… and blames others for failing to provide protections that the US constitution does not itself provide. Which would be fine if he were also criticizing the US constitution, but I didn’t see that.

    I wonder sometimes if Ed’s view of the problems with government sanction of speech in the US are always ones of simply failing to implement the constitutional protections on speech… or does he see a problem in that things like government punishment of Conspiracy [even in broad circumstances,such as under RICO] are held to be firmly within constitutional powers of the executive. Government power to punish conspiracy is, in some other parts of the world, much more circumscribed.

    Is that a problem with the constitution? The interpretation given the constitution by SCOTUS? I don’t really know. And I never see Ed address it.

    This has been a really, really long ramble, but the point is, I see serious problems with things that Ed says on significant – though rare – occasions.

    But I never think ill of his motives. He knows a great deal more than me on First Amendment interpretive history and I love reading his writing in that area. I just see his takes on certain international speech issues to be, well, if not yellow, then just a touch parchment-colored.

    **But this is a blog, not a book published by Oxford University Press. If it was true that Ed goes off 3% cocked would that be “Big News” in the world of blogging (I mean other than for being much less cocked than the median blogger)? And that’s something that all of us do on the topics about which we care so much.

  5. says

    … but I always dislike arguments of the style ______ is unconstitutional. It always comes off as an argument from tradition.

    Yes, it’s a very GOOD tradition that’s proven itself extremely useful — even necessary — in securing and expanding individual rights that had previously been undreamt of by most of Mankind. And why is it so useful? Because “tradition” is something people can agree on when they can’t agree on much else, but have to agree on something just to get anything decent done. Not sure why you have a problem with any of that. If it takes an appeal to “tradition” to shut the fascists and bigots up, I’m happy to use it — it seems to work better than civil war, donchathink?

  6. freemage says

    When done as a shortcut, yes, it’s likely to be an error and is a sign of sloppy thinking/argumentation.

    That said, it can be appropriate to call someone’s motivations into question if you can demonstrate a reason to do so contextually. As you note, your own writings and actions belie any notion that you’re somehow hostile to LGBT rights and racial equality, and so on. Your opposition is clearly because you feel free speech rights trump (and furthermore, ~need~ to trump) the otherwise substantial right of others to operate free of discomfort.

    Some individuals who oppose speech-codes of various sorts, on the other hand, are clearly doing so just because they fear that this will advance the cause of equality. They are hostile not to the tactic, but the motivation–and they should be called out on that front, even by people who, like you, ‘agree’ with them on the tactics in question.

  7. says

    I do see where Micheald is coming from, though. Just look at how many pro-gun arguments devolve to simply shouting “but it’s the constitution!“. Many “constitutional” rights have some qualifiers attached. Whether or not a particular case falls into that qualifier isn’t solved by simply waving the constitution.

    I’m not saying that this is what’s happening here. I’m saying I think I see where micheald is coming from.

  8. says

    I admit this is all coloured by being a Canadian who reads a bunch of Americans. And of course note i said I disliked such arguments not that they are of no value or usefulness or that they shouldn’t be made.

    @iknklast

    Maybe this is a bit about our focus but I prefer arguments with a larger scope beyond the boarders of one country. Some part of a constitution can be right or wrong, some part of a legal case can be right or wrong. It may well be a useful argument within a country or dealing with a court or person X but it’s not an argument I personally like. You can always discuss the utility of an argument vs the merits of the argument. To me in the wider internet/international discussion the constitutionality of something in one state is a side issue to the merits of the issue. I’d rather discuss the basis of something being good/bad right/wrong on the overall merits and values of say hate speech laws versus the constitutionality of the law.

    @CripDyke

    “Wow, um, no. Brown v Board, much? Sweatt v Painter? Plessy v Fergusson much? Dred Scott much?”

    To me that’s very much tradition in this case legal tradition (common law as a legal system is in part about tradition what has come before and what others decided). Also as a Canadian they mean nothing to me nor does it matter how a judge or group of judges decided so much as the merits of the arguments that were made.

    For example take should creationism be taught in school science classrooms. Whether or not it is constitutional has little to do with the merits of creationism as science or the place of religious teachings in science classes or the merits of church state separation. To me those are ultimately the more important aspects of the conversation where as the constitutionality while useful has little to do on its own with the merits of the issue. Even if it was constitutional to teach creationism is science classes it wouldn’t mean it was the right/good thing to do.

  9. Jordan Genso says

    I think that is a very easy situation to fall into if one side is arguing that the “ends justify the means” while the other is arguing that the “means justify the ends”. The first side is going to be appalled that someone could accept the negative portions of the “ends”, and it is easier for that first side to instead believe the other side wants those ends rather than just accepting them. It helps shield the first side from having to consider whether those ends could actually be justified by the means.

    And it also works in reverse, with the gun-control debate coming to mind. There are NRA supporters who think those advocating stricter gun regulations are doing so because they want to restrict freedoms for the sake of restricting freedoms, rather than because they are trying to achieve a preferred “end”.

  10. Michael Heath says

    I absolutely agree with michaeld’s point. Just because a protected right is numerated and/or well established with precedent doesn’t mean other superior rights that are being infringed upon have been sufficently protected via prior case law. We should be able to make a compelling case for a policy on its own, independent of its Constitutionality.

    Many of us are doing it now when it comes to our antipathy for the electoral college rather than a popular vote for president.

    To Ed’s central point, I think the best way to promote broadly protected speech rights is to practice what we preach in private venues, within reason of course – though reason soundly applied. That means not applying reason ideologically like distorting the definition of harassment to restrict speech on others’ religious ideas as Skepticon did this past year. By facilitating more speech and coming down on disruptions and harassment, we offer experiential data to observers on the importance of speech when it comes to the development of sounder positions by all of us. It also greatly helps improve people’s ability to think critically when dissenters expose rhetorical and logical fallacies by others.

    Reasoned fact-based dissent after all is an important component of skepticism. We don’t know the, ” emperor ‘favored class’ has no clothes”, in private venues if we’re unable to point such out.

    Perhaps the worst argument I’ve encountered comes from pro-speech advocates who claim to favor government protected speech while simultaneously advocating for unreasonable speech restrictions in private venues. Such advocacy suggests proponents don’t fully appreciate why the encouragement of speech is held sacrosanct by other speech advocates. And that’s because we conclude it leads to more optimal, defendable positions amongst many because it promotes higher-quality arguments.

  11. Crip Dyke, MQ, Right Reverend Feminist FuckToy of Death & Her Handmaiden says

    Sorry if that post was too long, Michael D, but the point was this:

    At least 1 party in those cases, and sometimes counsel on both sides, wanted change and justified it in the constitution.

    So arguing based on the constitution is not always arguing from or for tradition.

    Nor were any of those cases ones in which precedent was much respected. There were serious arguments **against** precedent in those cases.

    It is arguing from a point of submission to the view that the constitution controls the limits of certain powers – usually governmental, but sometimes individual.

    Maybe you mean that basing any argument in the constitution is inherently traditional.

    But I’m not sure accepting the supremacy of the constitution is itself an argument from/for tradition. There are good reasons to accept social contract theory as a positive deveolpment in structuring society and the lack of such a contract as dangerous to the members of a society. To what other contract could we look?

    I don’t disagree that the law as a profession is inherently conservative. It’s one of the huge moral problems with which I wrestled before going into law. Nonetheless, a profession that is inherently conservative shows itself more in lack of debate than in having false debates where each side is essentially arguing the same thing – tradition should rule.

    I am much more saddened by the debates we don’t have than by the arguments in the debates we do.

  12. Crip Dyke, MQ, Right Reverend Feminist FuckToy of Death & Her Handmaiden says

    That means not applying reason ideologically like distorting the definition of harassment to restrict speech on others’ religious ideas as Skepticon did this past year

    Citation please?

  13. slc1 says

    Re michaeld @ #8

    For example take should creationism be taught in school science classrooms. Whether or not it is constitutional has little to do with the merits of creationism as science or the place of religious teachings in science classes or the merits of church state separation.

    I agree with the sentiment in general. However, unfortunately, in the US, appeals to the non-merits of creationism don’t impress the advocates at all. They have no interest in the evidence; their position is that their minds are made up, the evidence is irrelevant. The only thing standing in the way of teaching creationism in the schools is the 1st Amendment relative to the separation of church and state. There is nothing in the Constitution prohibiting the teaching of bad science.

  14. says

    Crip Dyke said:

    Citation please?

    That would be Skepticon’s harassment policy, which forbids harassment about various things including religion, which organizers have clarified repeatedly does not mean that any speech critical of religion is forbidden but that conference attendees are not allowed to personally attack an individual fellow attendee on the basis of that person’s religion (in other words, to harass them about it). Michael Heath has a problem with this, which he will not shut up about, ever.

  15. Taz says

    Crip Dyke – since you brought up your ‘nym, there’s a question I’ve been meaning to ask. Are you both the fucktoy of death and death’s handmaiden, or the fucktoy of both death and her handmaiden?
    In other words, are you the fucktoy of two beings, or the fucktoy and handmaiden of one?

  16. says

    This is kind of become a derail maybe from the original post but my further thoughts.

    Crypdyke

    “So arguing based on the constitution is not always arguing from or for tradition.

    Maybe you mean that basing any argument in the constitution is inherently traditional.

    But I’m not sure accepting the supremacy of the constitution is itself an argument from/for tradition. There are good reasons to accept social contract theory as a positive deveolpment in structuring society and the lack of such a contract as dangerous to the members of a society. To what other contract could we look?”

    While a constitution might not represent traditional views as a whole (the US claimed to embrace the equality of all men before it really did that) to me making an argument based on a constitution is still an argument from political/legal tradition. In as much as a constitution states some aspects of political and legal tradition/thought in a country.

    I agree there is value in a social contract but I think also need to be flexible to some extent. To me it often seems appeals to a constitution is short hand for appealing to unstated value X,Y or Z. It would be more useful/productive to base an argument on those values (personal liberty say) along with other evidence etc over just an appeal to the constitutionality of it. Obviously its an important point in legal systems/arguments and it has impacts on how easy it might be to affect a change but to me the merits of an idea are distinct from the constitutionality.

    @Slc1
    “However, unfortunately, in the US, appeals to the non-merits of creationism don’t impress the advocates at all. They have no interest in the evidence; their position is that their minds are made up, the evidence is irrelevant.”

    I’ve tried to be clear that this is what I personally find useful as an argument. Obviously if you’re having a discussion with someone so closed minded nothing can sway them it doesn’t really matter what argument you use with them.

    ” The only thing standing in the way of teaching creationism in the schools is the 1st Amendment relative to the separation of church and state. There is nothing in the Constitution prohibiting the teaching of bad science.”

    I think that’s a fine legal argument but as an argument as to why things should be this way of the value/merit of the position I don’t think it’s very good. It’s short hand for the actual arguments of the value of a separation of church and state for example. Better to make an argument directly to the underlying idea and its value. Of course not everyone will agree with this but they probably won’t agree with your interpretation of the 1st amendment either.

    More generally

    Essentially at least in a broader discussion sense and not necessarily a specific legal* case or situation:

    I think it’s more important to argue based on the merits, evidence and values we have rather then making an argument on a particular political or legal document. To me what ever idea is in a constitution should stand based on its own underlying merits and not be considered an argument in and of itself. I personally prefer going to the root argument of a discussion then constitutionality which I think obscures the underlying argument to some extent. Ultimately I’d like to think discussing the root ideas/data/values is a more productive discussion over the legal aspects (a preference for a philosophical discussion over a legal one?).

    *obviously it can be quite useful and potentially faster in these situations (not to mention a lot lest costly). It can be very useful to not have to make the same argument about say church state separation or equality between different group to a court rather then having to start from scratch every time an issue is brought up.

    I should probably learn to blockquote but I often seem to mess it up when I try…

  17. Michael Heath says

    Crip Dyke said:

    Citation please?

    Gretchen responds, dishonestly:

    That would be Skepticon’s harassment policy, which forbids harassment about various things including religion, which organizers have clarified repeatedly does not mean that any speech critical of religion is forbidden but that conference attendees are not allowed to personally attack an individual fellow attendee on the basis of that person’s religion (in other words, to harass them about it). Michael Heath has a problem with this, which he will not shut up about, ever.

    As nearly always, I find advocacy I “shut up” directly correlative to the complainer both having no coherent defense and no desire to adapt their position to that which is defendable. From a pedantic perspective Gretchen doesn’t directly ask for that here, but she did when this topic was originally generated a bunch of comment posts.

    My complaint was never about people harassing others about religion and I repeatedly made that clear. As I repeatedly noted back then, I have no problem with organizers promoting speech while also minimizing disruptive behavior and harassment. So this is another flat-out lie by Gretchen when it comes both misrepresenting my position and misrepresenting the meaning of Skepticon’s actual policy [1].

    Instead my opposition to Skepticon’s policy [1] was two-fold. The first and related objection to Gretchen’s response was that Skepticon misdefined harrassment to mean, “offensive verbal comments”, and then prohibited such offensive speech in their policy when it came to religion.

    Obviously offensive verbal statements regarding others’ immutable characteristics is fair game in prohibiting; I support such mandates though not the way Skepticon did which I’ll get into next. As our blogger Ed likes to repeatedly argue, we need broad protections to rhetorically attack ideas, which is on an entirely different moral plan than repugnantly demeaning people’s immutable characteristics. Creating environments where one can engage in even offensive speech about ideas is a critically important attribute to a free society.

    So I objected to Skepticon mutating the definition of harassment [2] to wrongly be mere “offensive comments”. The very best arguments against religion are frequently offensive, often extremely offensive, especially to those who support that religion’s belief or similar beliefs. E.g., there is no god or gods, it’s incoherent to proclaim a god who is good and full of grace yet promises to send some people off to eternal agony. These are self-evidently offensive to many people who believe such tripe.

    Skepticon’s defense they would violate their own policy and allow such offensive speech is not only hypocritcally idiotic, but also feeds into my second objection with the Skepticon 2012 convention. Skepticon’s registration process required applicants to to submit to this anti-speech policy in order to complete their registration.

    There are many ways to insure a productive convention without creating a chill on speech imposed on all registrants. Marketers rightly know how critical first and last impressions are; here Skepticon chose to raise the topic of speech restrictions in one of their first impressions.

    There are also countless conventions across the country which take on touchy subjects; many are able to have productive and open conventions without requiring attendees to check the exercise of their rights at the door. Yet Skepticon defended their anti-speech policy which misconstrued what harassment meant, in spite of the success of other convention organizers.

    1] Skepticon’s 2012 policy:

    Harassment includes offensive verbal comments [related to gender, sexual orientation, disability, physical appearance, body size, race, religion], deliberate intimidation, stalking, following, harassing photography or recording, sustained disruption of talks or other events, inappropriate physical contact, and unwelcome sexual attention. Participants asked to stop any harassing behavior are expected to comply immediately.
    [emphasis in my previous blockquote, but not in Skepticon's policy].

    I cite a previous post of mine because since my post, Skepticon has revised their policy.

    2] Harrassment (Oxford online dictionary): aggressive pressure or intimidation

  18. Michael Heath says

    michaeld writes:

    . . . the US claimed to embrace the equality of all men before it really did that . . .

    Unfortunately we’ve still got a ways to go before we can lay claim to accomplishing this objective.

    michaeld writes:

    To me it often seems appeals to a constitution is short hand for appealing to unstated value X,Y or Z. It would be more useful/productive to base an argument on those values (personal liberty say) along with other evidence etc over just an appeal to the constitutionality of it.

    Well said. In addition far too often we demand a certain standard by our government when it comes to celebrating certain behavior, like free speech, while not being so keen on such when we control the venue. One reason I love Ed’s blog is because he walks the talk when it comes to how he moderates the debate in his venue.

    Lazily depending only a clause of a constitution or a cite from case law also loses us the opportunity to argue why the defense of a certain principle should be promoted and embraced beyond it being merely legal. We shouldn’t want mere conformance, but instead newly energized champions for a laudable principle.

  19. Michael Heath says

    michaeld writes:

    I should probably learn to blockquote but I often seem to mess it up when I try.

    It’s easy. Start a quote with [blockquote], only replace the first bracket with a “less than” sign (on the same key as a comma) and the last bracket with a “greater than” sign (on the same key as a period).

    To end a quote do [/blockquote] where you replace the brackets with the ‘less than’ and ‘greater than’ signs as I describe above.

    Here’s a page on how to insert an embedded link: http://www.w3schools.com/tags/tag_a.asp . I usually just keep that page open all the time so I can copy and paste the relevant string of text, and then copy over the URL and the text example. I bet there’s a better way where I’d sure love to find out how.

  20. dingojack says

    michaeld – <blockquote>[insert text here]</blockquote>

    Thus:
    <blockquote>I should probably learn to blockquote but I often seem to mess it up when I try.</blockquote>

    Looks like:

    I should probably learn to blockquote but I often seem to mess it up when I try.

    Hope that’s helpful,
    Dingo…

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