The Tyranny of the Anecdote

When Noam Scheiber began his pitch for socialized law, he opened with the “requisite anecdote.” It’s a rhetorical device, used by those knowledgeable in the art of persuasion against the unwary.  It’s also used by the unwary because they fail to understand that it’s of no conceptual significance and they think it proves their point.  Let me tell you a tale of woe or joy, they begin, and you will then agree with me.

Linda Greenhouse explains the pitch as well as I’ve ever seen in her New York Times op-ed on the little nuns, a grandmother, Hobby Lobby and the murder of two abortion clinic workers.

“We tell ourselves stories in order to live,” Joan Didion famously wrote in her essay collection “The White Album.” It’s a haunting line, because it’s so universally applicable. We tell ourselves stories not only for profound reasons but for mundane ones as well: to process the ambiguous and complex events that unfold every day around us, or even to try to understand the issues presented in a major Supreme Court case.

In the world of First Amendment freedom, the Supreme Court’s imposition of 35-foot buffer zones around the entrance to clinics flies in the face of a gentle grandmother who only seeks the opportunity to speak with women before they do something that cannot be undone.  What of her right to speech?

Eleanor McCullen is a 77-year-old grandmother whose photograph, with an oversize cross hanging from her neck over a bulky winter coat, has been ubiquitous in accounts of the case. For many years she has positioned herself outside the entrance to a Planned Parenthood clinic in downtown Boston with the mission of dissuading women from going ahead with their scheduled abortions. Her argument in the case is that the buffer zone means she can’t engage the women in low-key conversation as she wishes, but instead has to raise her voice in order to get their attention and deliver a message that as a result is inevitably perceived differently.

What could possibly be wrong with allowing McCullen the opportunity to persuade?  During oral argument before the Supreme Court, Justice Scalia took umbrage with the characterization of McCutcheon as a “protester.” She says she only wishes to “speak quietly and in a friendly manner,” as is her right.  And indeed, no one doubts her sincerity, and it is her right. So what could possibly be the issue here?

Missing from the story of the cherubic grandmother, of course, is context — the reason that Massachusetts enacted its buffer zone, adapted from one the Supreme Court upheld in a Colorado case 14 years ago.

Abortion clinics in Massachusetts have witnessed not only orchestrated harassment but also deadly violence; 20 years ago, amid other such incidents around the country, two clinic staff members were shot to death in Brookline, adjacent to Boston. Ms. McCullen has long been affiliated with Operation Rescue, a group that at its height in the 1990s regularly massed hundreds of people to blockade abortion clinics with the goal of shutting them down. Viewing the law in context, and in light of the Supreme Court’s precedents, the federal appeals court in Boston upheld it as a reasonable regulation designed to protect public safety, leaving any impact on speech both incidental and justifiable.

This isn’t to say whether the decision in Hill v. Colorado was right or wrong, or whether an impact on highly charged political speech that’s characterized as “incidental and justifiable,” a very facile excuse for infringing speech, should prevail.  But if free speech doctrine is to be based only on the anecdote of grandma McCullen, the answer is simple and the argument in its favor obvious.

The problem is that legal doctrine isn’t based on an anecdote, but on context, and this complicates things sometimes. Anyone embracing grandma McCullen without understanding why the 35-foot buffer zone was created in the first place cannot engage in rational discussion because they lack context.

The anecdote of the Little Sisters of the Poor is another story that gives rise to outrage, since the answer appears so obvious as to be beyond words.

Little Sisters of the Poor is an order of nuns who offer end-of-life care to the elderly poor in the United States and more than two dozen other countries. As a nonprofit religious organization, the order is exempt from the requirement to provide contraception coverage under its group health insurance plan.

The story began as if they were being forced, by the government, to provide contraceptive coverage, contrary to their religious beliefs and their laudable purpose.  Greenhouse then exposes the context.

In other words, there is no chance — none — that the Little Sisters will ever have to have anything whatsoever to do with birth control. All the government is asking the order to do is sign the standard one-page form that sets the exemption machinery in motion.

Bureaucrats do so love forms. In his brief in opposition to an injunction, Solicitor General Donald B. Verrilli Jr. explained why this form was more critical than their religious beliefs:

“When extending religious accommodations, the government must be allowed to provide for regularized, orderly means of permitting eligible individuals or entities to declare that they intend to take advantage of them. That is what the self-certification under the regulations accomplishes.”

Permitting a refusal even to certify, the solicitor general told the court, “would be extraordinary.”

Part of the context is that the need of government for the “orderly” exercise of rights trumps the exercise of rights themselves.  More pointedly, the solicitor general contends that absolving the Little Sisters from the duty to put smiles on the faces of bureaucrats would be “extraordinary,” meaning above that which would please the government in the regular course of its function.

The rest of the context, however, appears to escape Greenhouse’s notice. Should we wish to stand on a soapbox and opine that a government official is doing a poor job, there would be no doctrinal basis to not require the speaker to sign a one page certification that he is doing so in order to exercise his right to free speech. So too could a form be required of people who flash their lights at a speed trap.

The point of rights is that one does not require the government’s approval to exercise them. While it would be a tiny burden for the Little Sisters to sign off, the Constitution contains no provision that the rights it protects are subject to the execution of a form.  Would it make for a more orderly union? Sure, and there are plenty of nice people who are more than happy to forfeit rights in exchange for order.

These tend to be the same people who embrace an anecdote rather than consider the rule they wish to ram down other people’s throats in context.  Everybody is entitled to an opinion, but only after they are aware of the context behind the issue. Without that, it’s just meaningless noise, subject to dismissal out of hand.  If you disagree, please fill out the disagreement form in triplicate with a black pen. Failure to do so is subject to a $1000 fine and 15 days in jail.

14 thoughts on “The Tyranny of the Anecdote

  1. Turk

    As a nonprofit religious organization, the order is exempt from the requirement to provide contraception coverage under its group health insurance plan.

    As a non-profit religious organization, aren’t they also exempt from taxes? Don’t they have to alert the government in some fashion that, Hey! Over here! We’re exempt!

    The First Amendment religious freedoms will apply to some, but not to all. How is the gov’t supposed to know?

    1. SHG Post author

      That’s a great question.

      Ring, ring, government calling. Say, Little Sisters of the Poor, you didn’t pay taxes and fill out our forms. What gives?

      Well, we are an order of Catholic nuns, and so we don’t have to.

      Oops. Sorry to bother you. Have a great day.

      No SWAT team in sight for the government raid on their ongoing criminal enterprises for evading taxes and failing to offer contraceptive coverage. How is the government supposed to know is the government’s problem. I know, constitutional rights can be very inconvenient for governments. It really sucks to place the burden on the government rather than citizen.

        1. SHG Post author

          Another great question. You are on a roll today.

          How is that 2 minute phone conversation different from the 2 minute form?

          Because the burden of governmental bureaucracy is on the government, not the citizen. Or to put it another way, the government serves us. We don’t serve the government.

          1. Turk

            Because the burden of governmental bureaucracy is on the government, not the citizen.

            It makes a difference if the government asks you via phone as opposed to paper? Seems like a distinction without a difference.

            1. SHG Post author

              Not really. First, the call only comes if the government feels it sufficiently important to ask. More importantly, failure to file that piece of paper by the citizen puts the citizen in a position of jeopardy. File or suffer. If the government feels it sufficiently important to know, it can ask. If it doesn’t, all is right with the world.

            2. Turk

              First, the call only comes if the government feels it sufficiently important to ask.

              It seems that the gov’t does feel it sufficiently important to ask, hence the form that does the asking.

              More importantly, failure to file that piece of paper by the citizen puts the citizen in a position of jeopardy.

              That is a different kettle of fish. But if the jeopardy is simply an audit to make sure that this really is an organization entitled to the exemption, then that doesn’t really constitute jeopardy the way I usually view it (fines or jail).

            3. SHG Post author

              It seems that the gov’t does feel it sufficiently important to ask, hence the form that does the asking.

              No points for this one.

              But if the jeopardy is simply an audit to make sure that this really is an organization entitled to the exemption, then that doesn’t really constitute jeopardy the way I usually view it (fines or jail).

              So let me know when the government gets rid of the 34,000 regulations that carry penalties of fine or jail for not filling out forms. Then we can live in that wonderful place.

  2. Peter Orlowicz

    So, under the same reasoning Federal Rule of Civil Procedure 38 is an undue burden, because a party to a civil case has to file a written demand to exercise their right to a jury trial under the Seventh Amendment?

    I think there’s a distinction to be made here between asking permission from the government (implying some government discretion to grant the demand or not) and simply informing the government of the exercise of the right. Moreover, putting the burden of investigation/compliance to the government ends up just shifting the cost to taxpayers generally. Instead of funding a half-dozen IRS clerks to process the religious exemption forms, would you prefer we pay for a hundred audit agents that identify and investigate all potential claims of religious exemption? (I think) I understand your point about government serving us, not the other way around, but I also think it’s fair to look at government to determine the most efficient way to provide those services that burdens the fewest number of people, and minimizes the amount of property the government needs to appropriate through taxes to perform those services.

    1. SHG Post author

      Your analogy to FRCP 38 is flawed. There, the citizen chooses to avail himself of a specific governmental service, the legal system, and exercises an option to seek a jury trial. He can also exercise his option not to. Granted, either for or against could require an option, but either way, it happens because the citizen has sought availed himself of a specific service. Not the same thing.

      As for your argument that “it’s fair to look at government to determine the most efficient way to provide those services,” I was hoping someone would raise that, and thank you for doing so. First, why is it fair? Because you’re inured to being told what to do and are a happily compliant citizen? There is an implicit bias in using the word “fair.”

      But bias aside, it would certainly tax the government to be forced to assume the burden of determining whether a citizen is doing wrong or merely exercising his constitutional rights. This would serve as spectacular incentive for the government to streamline its processes, only pass burdensome laws because they were truly needed, do everything possible for frame its operations around honoring constitutional rights rather than honoring them only in the breach. If the government doesn’t want its resources to be unduly taxed, it need only make fewer demands in conflict with constitutional rights. Scary thought, right?

      1. Peter Orlowicz

        My guess is few civil defendants would view their participation as choosing to avail themselves of a specific government service. They’re being dragged to court against their will under compulsion of process, aren’t they?

        More to the point, I’m not sure that’s a good bright line for figuring out which Constitutional rights should have the burden on the government, and which should have the burden on the citizen, because a lot of exercises of Constitutional rights could be phrased or characterized in either way. If I want to use a specific government public forum like a park for a political protest, am I choosing to avail myself of a specific government service because the government pays for and maintains the park/street corner/public sidewalk/war memorial? Should the government be able to require me to fill out a permit in that case? Is a local zoning board a specific government service for legal process, such that if I want to build a church I have to submit paperwork to the zoning board to approve construction?

        I do think in some circumstances, you’re correct that individuals shouldn’t have to specifically invoke a Constitutional right. Supreme Court precedent notwithstanding, I’m uncomfortable with the notion that one’s right to remain silent during police questioning has to be specifically invoked before being honored (also one of the instances where there’s no real argument that a specific government service is being sought, incidentally, but see your post earlier in January on the Seventh Circuit booking fee affirmation).

        On to fairness. Perhaps it was a poor choice of words, but the argument I was trying to make is that if you want to place the burden of investigation on government because you wish to exercise your First Amendment right, you’re implicitly placing the cost for that on me and Turk and a bunch of other people who aren’t choosing to exercise our rights in that manner, but will end up footing the bill for the government activity. For that matter, so are the individuals exercising the right, since they’ll have to contribute through taxes to the government activity as well. So, if the choice is to have individuals wishing to invoke a right to fill out a form, or to have everyone collectively pay for the mechanism to allow government to investigate who didn’t fill out the form, it’s not clear to me at all that anyone is better off under the second option, much as Turk is arguing with respect to the two minute phone call. I don’t think there’s any inherent bias toward being a “happily compliant citizen” in recognizing there are multiple interests at stake, and I’m not arguing for the positive interest of the government as an entity, but for the costs on otherwise-uninvolved third parties.

        As for your incentives argument, I’m unconvinced it would operate that well in practice. Instead, it seems more likely that government would simply abrogate its entire role in sorting out exceptions, resulting in widespread non-enforcement of a lot of rules, regulations, and laws regardless of whether or not there were Constitutional rights at stake. Maybe that would be a good thing anyway, but I’m not sure that’s the argument you were making. Keep in mind, this entire discussion about RFRA and the ACA revolves around how and to what extent we exempt religious practice from laws of general applicability. Sure, we solve that issue if we don’t pass any of those laws of general applicability because they might impose on religious institutions, but I’m not reassured that more people are better off without, say, local building codes because churches and religious hospitals might have to comply with them.

        1. SHG Post author

          You’re certainly right that civil defendants (criminal too, by the way) would prefer not to be involved. The issue becomes less complicated (doesn’t it always) when initiated by a fellow citizen than by the government. The government then is a format provider for disputes between individuals, and so it’s not the government’s “fault” the defendant is dragged into court, and the government isn’t to be faulted for providing the rules of the game to keep individuals from having to duel for their contract losses.

          And yes, society as a whole will have to pay the price for the infringement of constitutional rights. When society starts getting pissed at the cost, they will act in their enlightened self-interest to elect legislators who don’t needlessly increase those costs. No, it’s not a perfect incentive system (are any?), but the point is that constitutional rights exist to protect individual rights from government fiat, not to make government intrusion on rights less expensive and more convenient.

          Frankly, I’m not particularly partisan about the controversial laws du jour. I am, however, concerned with how we take perfectly rational baby steps until we find ourselves subservient to the government and wonder, how the heck did that happen? I am also concerned that it’s become so banal that the idea of making the government do its own heavy lifting strikes to many people as radical.

          There will, always, be sticky details, but we can work out the details later.

          1. Peter Orlowicz

            Mild sarcasm follows.

            I suppose we could always just take the criminal procedure route and require anyone not exercising their Constitutional right to file a written waiver. That would save the Little Sisters from filing their form, at the expense of making everyone else fill out a form saying we’re not claiming a religious exemption. There’s no Constitutional protection against the bureaucracy if you’re specifically *not* claiming a right, and it would still be cheaper and less invasive than having the government individually investigate claims of religious practice or First Amendment invocation.

            On a more serious note, I wouldn’t be surprised if a large majority of people, even religious people, felt that a personal phone call or house visit from an IRS agent to ask you about invoking a religious exemption was significantly more intrusive than just filling out the form in the first place.

            1. SHG Post author

              On a similarly serious note, I don’t think it’s a big deal for the Little Sisters to sign off on the certification either. In the grand scheme of crap we are forced to go through, that’s nothing. My concern is the grand scheme of crap we have to go through.

              As good citizens trying to get along, most of us are fully prepared to contribute to the public weal, whether financially or by a bit of effort, like signing a form. And I’m fairly confident that this won’t change because my post (though it wouldn’t hurt if it did, at least a little). But what began as an accommodation for our mutual benefit has turned into a one-way street, where we jump at the government’s command and fail to do so at our own risk. Unless it’s a two-way street, then it’s a problem, and like entropy, it will only get worse.

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