Home | About | RSS Feed | Contact and Publicity Guidelines | Comment Policy the Law, the Universe, and Everything 


advertise-here4


Slip Opinions


University governance as a new topic of public discussion.

An unusual profile of Mary Anne Franks (kw)

Aggressive copyright litigation run amok. (fp)

USA Today's Matt Krantz quoting me on Warren Buffett joining Twitter.  (LAC)

Private prisons? Why, sure! What could possibly go wrong? (kw)

TNR profiles Susan Crawford (kw)

Berkshire Hathaway is bigger than Warren Buffett.  Manual of Ideas (LAC).

Guns don't shoot people, kitchen appliances shoot people (kw)

Via Glom, Sat Eve Post review of The Essays of Warren Buffett.

Jack Coffee on Bad Plaintiffs' Counsel in M&A Deals and What Must Be Done to Break Them


Our Podcast

Subscribe to Law Talk


  • Posts by Author

  • Categories

  • Archives


  • Recent Comments


    • Joe on Kentucky: Boy, 5, Kills Sister, 2

    • mls on Copyright’s Constitutional Chameleon

    • Shag from Brookline on Kentucky: Boy, 5, Kills Sister, 2

    • Brett Bellmore on Kentucky: Boy, 5, Kills Sister, 2

    • Daniel Barth-Jones on Re-Identification Risks and Myths, Superusers and Super Stories (Part II: Superusers and Super Stories)

    • Daniel Barth-Jones on Re-Identification Risks and Myths, Superusers and Super Stories (Part I: Risks and Myths)

    • Daniel Barth-Jones on Re-Identification Risks and Myths, Superusers and Super Stories (Part II: Superusers and Super Stories)

    • Daniel Barth-Jones on Re-Identification Risks and Myths, Superusers and Super Stories (Part I: Risks and Myths)

    • Shag from Brookline on Kentucky: Boy, 5, Kills Sister, 2

    • Brett Bellmore on Kentucky: Boy, 5, Kills Sister, 2

    • Peter Strauss on Copyright’s Constitutional Chameleon

    • John Duffy on Copyright’s Constitutional Chameleon

    • Andrew on BRIGHT IDEAS: Q&A with Bruce Schneier about Liars and Outliers

    • Joe on Kentucky: Boy, 5, Kills Sister, 2

    • John Duffy on Copyright’s Constitutional Chameleon
  •  

    Site Meter

    About the Blog

    Concurring Opinions is a multiple authored, general interest legal blog.

    (Image: Wikicommons)

More on engaging “insane” views

posted by Howard Wasserman

Paul Gowder took the comments from my post about debating Westboro and the Phelps into his home forum. I wanted to respond more fully here. At one level, I think we are misunderstanding one another; at another, we are proceeding from different premises.

First, Paul writes that the Phelps message of “God hates fags” is a “foul, false, and offensive message.” True enough, but so are a lot of other messages and a lot of other speakers. Later, Paul argues that there is a difference between “non-mainstream but sane views (consider the various versions of anarchism, on both the socialist and the capitalist side) and completely nutso views.” As I said in the Comments, the whole point of my first post was to find the line between those two. Lots of messages are foul, false, and offensive and lots of messages–how do we decide which ones are OK to engage with?

Paul insists that “I know it when I see it” is close enough and, ultimately, all we have, since a meaningful objective line is impossible. And he probably is right. Of course, some people would have a very different views of the “sanity” of the Church’s views or, say, the views of the KKK or the views of many other speakers. This subjectivity works at the level of one individual’s choice about whom to engage with in a debate–my history professor’s flat refusal to sit down with deniers.

But it becomes problematic when it is the government doing the defining. And it is a short step from saying that a group is too insane to include in a debate than to saying it is too insane to be given access to a public forum where people will have to encounter that group’s expression–which will require a government definition. As I noted in the first post, that is the gravaman of the criticism directed at FIU by some faculty and students over allowing the Genocide Awareness Project onto campus–the group’s views are “non-mainstream-and-insane” and it was inappropriate to allow them onto campus and subject unwilling members of the FIU community to their “foul, false, and offensive” images of aborted fetuses and specious analogies.


Second, as to where I think we misunderstand each other. Paul objects to imposing an “obligation” to engage with insane views, which he argues entails and obligation to debate Phelps and Grand Wizards. I agree with that, because I was not suggesting any obligation to debate someone; clearly an individual can choose for herself with whom to debate and engage. I generally believe it is worthwhile to engage, however cursorily, with “non-mainstream-but-insane” speakers, even if only to expose them and their crazy views to the light of day. But there is not a requirement that anyone do so and I did not and would not argue otherwise–indeed, imposing such a requirement would itself run afoul of free-speech.

But the situation that provoked the post was different. Stonewall did choose to engage with the Phelps and with their ideas and views–and were being sharply criticized for that and subjected to pressure (or attempts at pressure) to rescind the invitation. I was trying to understand and identify the point at which a group is not worthy or entitled to be included in the debate, thus the point at which a group is doing something wrong to invite a speaker (such as Westboro) to debate. And I think an objective line beyond “I know it when I see it” is necessary to decide when such criticism is warranted.


 November 3, 2008 at 8:34 pm   Posted in: Uncategorized   Print This Post Print This Post

Responses (5)

  1. Paul Gowder - November 3, 2008 at 11:19 pm

    Thanks for the further thoughts, Howard.

    One thing I definitely want to highlight (and I may follow up with more in a couple hours, if I have the chance) is that we reach different conclusions partly because of our perceptions of the role of government. I understood the original post to be talking about what it is good for academics to do (whether as an obligation, or as superogation), qua academics, and notwithstanding their affiliation or lack of affiliation with the state. To the extent that state coercion or access to a public forum is at issue, I of course agree with you. I was talking about normative requirements and constraints on academics and universities, not state action.

    On the requirement question (and leaving aside the free speech questions that, again, are raised only when states come into the picture), let’s distinguish four possible moral states that an act can have: obligatoriness, superogation, neutrality, and forbiddenness. I meant to defend neutrality — that is, I meant to defend the position that there is neither normative credit nor discredit to deigning to debate with these speakers. At the time, I thought you were defending obligatoriness, but I take it now that you’re saying that it’s superogatory? To that extent we disagree, but we agree, I think, in rejecting the pressure that others imposed on those who agreed to the debate — such engagement is certainly not forbidden.

    Actually, I’m not sure about that last point. It does seem like in certain cases, it’s wrong (though, again, of course not proscribable by the state) to inflict certain kinds of speakers on others. We’d look rather askance, for example, at someone who, in the name of airing the debate, invited the KKK to a celebration of Martin Luther King Jr.’s birthday. I tend not to think this applies in the university environment, however.

  2. Quidpro - November 4, 2008 at 9:50 am

    Professor Wasserman: How are the views of the Genocide Awareness Project “non-mainstream and insane”? This would appear to be a label applied by some within the FIU community to silence those with views they oppose. Is opposition to abortion a sign of insanity?

    I can understand how some might be offended by pictures of aborted babies. Does that make such a display “false”? Or is it rather that such a graphic display of the truth of abortion is precisely the reason that such pictures are deemed “offensive” and “foul”?

    People do not have a constitutional right to be free from mesages that they find offensive. Truth, by its very nature, divides. Those who oppose the views of the Genocide Awareness Project are free to offer their own arguments. They should not be allowed to silence the Project.

  3. Howard Wasserman - November 4, 2008 at 10:02 am

    QPQ:

    I think you just proved my point. No, I do not find the GAP “non-mainstream and insane” or uniquely offensive, but some people do. Just as some people would not find Westboro’s message insane or uniquely offensive, but some people do. But it is entirely subjective–any line based on the unique offensiveness of some speech or other will depend on exactly whose perspective is applied. What I know to be beyond the pale when I see it may be different than what you know to be beyond the pale.

  4. JP - November 4, 2008 at 11:46 am

    I’m conflicted about this question. First, though, I think most commenters have essentially agreed on a formal, or objective, line. Participants in an academic debate are expected to abide by rules and norms of rational discourse. The line is (or should be) related more to means of expression than content.

    The problem arises with groups like Westboro, the KKK, and 9/11-conspiracists that are widely known for expressing their views without following those rules. Their speech is characterized by personal attacks, appeals to deity, violence, intimidation, etc….

    Individuals from those groups might be willing and able to participate in civil discourse. (As, apparently, in the Stonewall case, where the Phelps’ apparently had more to say than ‘God hates fags’). However, the source of the criticism is that inviting a member of such a group legitimizes not only the group’s substantive message, but also their publicly known, non-civil means of expression.

    I’m conflicted because I wonder if a few such groups resort to non-rational expression because of their exclusion from ordinary academic discourse. On the other hand, I think it’s the case that most of these groups understand that their views are not defensible under the strictures of logical argument, and would continue to express their message in whatever manner garners the most publicity, regardless of whether they were invited into mainstream discussion or not.

  5. Quidpro - November 4, 2008 at 11:52 am

    Professor:

    Always glad to help. I did not mean to imply that you harbored the views that you atributed to certain members of the FIU community.

    Although drawing the line may be difficult in most circumstances, I disagree that there are no objecetive standards. “God Hates Fags”, I believe, is objectively beyond the pale. Not only is it hateful, and designed to hurt, but it is also a mockery of Christian theology. Both Christians and atheists should be able to agree on this point.

Leave a Reply

Spam protection by WP Captcha-Free


  • « Previous post
  • Next post »

Authors

Daniel J. Solove
Kaimipono Wenger
Dave Hoffman
Frank Pasquale
Deven Desai
Danielle Citron
Lawrence Cunningham
Sarah Waldeck
Jaya Ramji-Nogales
Solangel Maldonado
Gerard Magliocca

Guests

Kelli A. Alces
Taunya Lovell Banks
Ryan Calo
Claire Hill
Jay Kesten
William McGeveran
Meredith Render
Aaron Saiger
David L. Schwartz
Olivier Sylvain
Charles K. Whitehead
Aaron Zelinsky


















Previous Guests

Michael Abramowicz
Michelle Adams
Robert Ahdieh
Marvin Ammori
Michelle Anderson
Laura Appleman
Derek Bambauer
Taunya Lovell Banks
Ann Bartow
Steven Bellovin
Adam Benforado
Gaia Bernstein
Francesca Bignami
Josh Blackman
Joseph Blocher
Jeremy Blumenthal
Kathleen Boozang
Bruce Boyden
Donald Braman
Khiara Bridges
Al Brophy
Neil H. Buchanan
Bill Burke-White
Scott Burris
Paul Butler
Ryan Calo
Naomi Cahn
Anupam Chander
Miriam Cherry
Jack Chin
Glenn Cohen
Gabriella Coleman
Jennifer Collins
Caroline Mala Corbin
Thomas Crocker
andré douglas pond cummings
Allison Danner
Laura DeNardis
Brannon Denning
Deven Desai
Mike Dimino
Mark Edwards
Maxine Eichner
Jessica Erickson
David Fagundes
Lisa Fairfax
Joshua Fairfield
Christine Haight Farley
Kim Ferzan
Dan Filler
Mary Anne Franks
Susan Freiwald
Michael Froomkin
Amanda Frost
Brian Frye
Timothy Glynn
Rachel Godsil
Eric Goldman
Kyle Graham
David Gray
Craig Green
Tristin Green
Jonathan Hafetz
Vivian E. Hamilton
Meredith Harbach
Michelle Harner
Angela Harris
Jeffrey Harrison
Hosea Harvey
Erica Hashimoto
Jennifer Hendricks
Carissa Hessick
Laura Heymann
Robert Hillman
Gilbert A. Holmes
Nicole Huberfeld
Christine Hurt
Darian Ibrahim
Sherrilyn Ifill
John Ip
Shavar Jeffries
Kevin Johnson
Kristin Johnson
Jeff Jonas
Courtney Joslin
Dan Kahan
Jeffrey Kahn
Brian Kalt
Sam Kamin
Michael Kang
Chimène Keitner
Alicia Kelly
Orin Kerr
Nancy Kim
Heidi Kitrosser
Adam Kolber
Russell Korobkin
Alex Kreit
Anita S. Krishnakumar
Susan Kuo
Greg Lastowka
Sarah Lawsky
Youngjae Lee
Margaret Lewis
Erik Lillquist
Jeff Lipshaw
Jonathan Lipson
Jacqueline Lipton
Matthew Lister
Joseph Liu
Michael Madison
Tayyab Mahmud
Kevin Noble Maillard
Solangel Maldonado
Jason Mazzone
Linda McClain
William McGeveran
Salil Mehra
Carrie Menkel-Meadow
Max Minzner
Viva Moffat
Scott Moss
Eric Muller
Janai Nelson
Jaya Ramji-Nogales
Helen Norton
Elizabeth Nowicki
Paul Ohm
Angela Onwuachi-Willing
David Opderback
David Orentlicher
Michael O'Shea
Kristen Osenga
Mary-Rose Papandrea
Rafael Pardo
Marcy Peek
Eduardo Peñalver
Robert Percival
Michael J. Pitts
Marc Poirier
David Post
Amanda Pustilnik
Shruti Rana
Geoffrey Rapp
William Reynolds
Neil Richards
Lori Ringhand
Alice Ristroph
Marc Roark
Brishen Rogers
Sasha Romanosky
Tuan Samahon
Susan Scafidi
David Schleicher
David Schraub
Paul Secunda
Lea Shaver
Jonathan Siegel
Jessica Silbey
Peter Smith
Judd Sneirson
Adam Steinman
Charles Sullivan
Rick Swedloff
Peter Swire
Olivier Sylvain
Steph Tai
Andrew Taslitz
Robert Tsai
Jenia Turner
Joseph Turow
Steve Vladeck
Ari Waldman
Spencer Weber Waller
Howard Wasserman
Melissa Waters
Elizabeth A. Wilson
Frank Wu
Alfred Yen
Corey Yung
David Zaring
Timothy Zick
Michael Zimmer
Jonathan Zittrain

Ownership

Concurring Opinions is a
general-interest legal blog
operated by Concurring
Opinions LLC, a Pennsylvania
Limited Liability Corporation.

Blogroll

Above the Law
Access to Justice
ACS Blog
Althouse
Balkinization
Becker-Posner Blog
BlackProf
BoingBoing
Chicago Law Faculty Blog
Conglomerate
CrimLaw
Crime & Federalism
CrimProf Blog
Crooked Timber
Derechoalderecho
Discourse.net
Dorf on Law
Election Law
Emergent Chaos
The Faculty Lounge
Feminist Law Profs
43(B)log
Freakonomics Blog
Freedom to Tinker
Google Blogoscoped
How Appealing
Ideoblog
Info/Law
Instapundit.com
Juris Novus
Jurisdynamics
Just Books
Law and Humanities Blog
Law and Letters
Law Librarian Blog
Legal Profession Blog
Legal Theory Blog
Legal Times Blog
Leiter Reports
Brian Leiter's Law School Reports
Lessig Blog
Madisonian Theory
Media Law Blog
Mirror of Justice
The Moderate Voice
National Security Advisors
Opinio Juris
Point of Law
PrawfsBlawg
Privacy and Security Training
ProfessorBainbridge.com
Property Prof Blog
Red Tape Chronicles
The Right Coast
Schneier on Security
SCOTUSBlog
Security Dilemmas
Sentencing Law and Policy
Simple Justice
Sivacracy.net
The Situationist
Susan Crawford
TalkLeft
Talking Points Memo
TaxProf Blog
TeachPrivacy Blog
Tech & Marketing Law
Truth on the Market
Volokh Conspiracy
WorkPlace Prof Blog
WSJ Law Blog
Wonkette
The Yin Blog


© Concurring Opinions

Powered by WordPress