In a troubling reaction to a legal argument made against a Massachusetts law, that shooting “upskirt” photos is protected by the First Amendment, a lawprof abandoned thought to emotion. Via Gideon at A Public Defender:
In what has become a hallmark of the site, Above the Law yesterday “posted” about a fascinating Massachusetts case and managed to distill it down for their LCD readership: man argues that upskirt photography is protected by the First Amendment.
That led a LawProf Jessica Smith to redistribute the same article with a comment appended:
— Jessica Smith (@ProfJessieSmith) November 7, 2013
Mark Bennett, fresh off his 1st Amendment win, does a brilliant job of explaining why not only is this argument the correct argument and that, if the Massachusetts Supreme Judicial Court wishes to follow the First Amendment, it will be constrained to find the statute unconstitutional, but also that any lawyer who failed to make this argument for a client charged with that statute might well have been ineffective.
As Gid entitles his post, zealous advocacy is not bound by your discomfort. Discomfort is the key word. As the snarky adage goes, opinions are like assholes; we all have one and they all stink. There is an element to almost every normative commentary that draws a line at the point of personal discomfort. Each of us is good with going right up to the line, but beyond it and we cry “halt,” you’ve gone too far. You’ve gone “over the top.”
What does this mean? It means that it’s hit the point of your discomfort. There is no objective line based on discomfort, as discomfort isn’t objective. But when you do what Jessica Smith did, announce that someone has done wrong because they went beyond her personal point of discomfort, you’ve gone over the top.
Your line of discomfort may serve to suit your sensibilities, but it’s not the line for anyone else. Ever. And if you fail to grasp that you don’t get to impose your personal line of discomfort on others, then you are wrong for objective reasons. You aren’t the king of the world, deciding the parameters of respectability for others to abide.
Reactions to statements, arguments, assertions tend to reflect a deeply problematic grasp of this concept. Bennett writes of the reaction he received from a lawyer, James Burdick, who sought permission to scrape his content so he could slide into the blawgosphere without the effort of thinking. Bennett was blunt in refusing to be complicit in the scheme, and offered sound advice in what appears to me to be a benign tone. Burdick took issue:
I have to say I’m a little surprised by this angry response, as the goal of my blog is to get important information out there, whomever writes it, with attribution, so that the public sees the reality of justice in America, and that’s why I proposed an about-the-author postscript. I’d like to think that it’s just that you’re having a bad day, so I won’t take the acrimonious tone personally.
Don’t lose any sleep over it.
Angry and acrimonious? Not to my eyes, but obviously Burdick felt that it lacked the sweetness he expected. Bennett asks why someone would attribute a less-than-sugarcoated-as-expected response to the other person having a bad day, to manufacture blame to impose on someone upon whom Burdick imposed for not responding in a way that pleased Burdick.
It’s worth noting in passing that Burdick, in an effort to maintain some semblance of dignity after being smacked, closes with “don’t lose any sleep over it,” as if Bennett might be deeply concerned about having lost Burdick’s adoration.
A commenter to Bennett’s post noted a fascinating study that speaks to the idiosyncrasies of the language piece (though the narcissism piece remains available for further study). It’s called “mitigated speech.” It distinguishes degrees of ”deferential” and how ideas are sugar-coated to make them more palatable to others.
Based upon this, it would appear that Bennett’s response to Burdick lacked the level of deference Burdick demanded of Bennett. Why he should have expected any deference is an objective mystery, but subjectively easy to explain. To Burdick, he is important and deserving of deference. To the rest of the world, he doesn’t matter at all.
Similarly, when marketeer David Faltz dug himself into a deep hole here the other day, one of his primary contentions was that I didn’t react to his unsolicited overtures with the level of courtesy he thought he deserved. As he quickly came to learn, beggars don’t get to dictate the level of courtesy they get in response.
This has become something of an epidemic, people expecting that others will somehow adhere to their measure of propriety. They have a line they believe to be not merely reasonable, but one they are entitled to impose on others. When others don’t behave or react as they think they should, then they are over the top, beyond the bounds, wrong, wrong, wrong.
Each of us has the ability to decide for ourselves how we wish to deal with others, whether to show deference, to be courteous, to sugarcoat, or not. No one, not lawprof Jessica Smith, not lawyer James Burdick, not marketeer David Faltz, gets to make the decision for everyone else.
If you don’t like the way someone else conducts themselves, your choice is to walk away. You are free to express your feelings (and it’s important to note that it is not a thought, but a feeling, as there is no rational basis for it) for those who care what you think, but you have no right to demand that others validate your expectations of courtesy.
In other words, it’s your problem, not the other guy’s. And if you think they’re over the top, or fail to meet your approval, or didn’t make you feel as good about yourself as you think they should, then it’s a reflection of your sensibilities. The other guy gets to make his decisions for himself, just like you, and your only choice is to walk away.