Attack of the Killer Analogies* (Update)

There are few things that offend intelligence more than false analogies.  The reason is plain: they’re effective tools of persuasion, and utterly wrong.  Sometimes, the problem derives from their use among people who lack the basis of information to recognize the logical fallacy, and other times it’s because people can’t be bothered to think too hard. It makes their head hurt. Either way, the use of false analogy reflects poorly on its maker.

When its maker is an academic, the poverty of proposing a false analogy not only suggests a significant level of dishonesty, but suggests that it’s done to conceal the emptiness of any direct, valid argument to be made in favor of a position. This is abundantly demonstrated here**:

Franks twit

It would be one thing if this twit was made by someone only wrapped in emotion, for whom logic plays no role, but when such fallacies are propounded by a law professor, someone who promotes herself as a scholar, it’s unacceptable.

Aside: If you need a detailed explanation for why the relationship between the police and a suspect is not analogous to that of college kids engaged in a potential amorous relationship, or that constitutional rights are implicated, then you really aren’t ready to read this.

That such a flagrantly absurd analogy is used to bolster a position that fails to find support in reason isn’t surprising, but isn’t the worst of it either.  The talking points memo in the war on revenge porn has shifted gears to overcome the wealth of First Amendment objections (which has continually, yet silently, morphed from “there is no issue and anyone who disagrees is a misogynist pervert” to “we’ve addressed some issues though we deny they exist” to analogies because we’re empty on the law and logic.

In a post at Vice with the patently absurd title, “The ACLU Is Fighting to Keep Revenge Porn Safe and Legal for Pervs,” the analogy proffered in her opening statement by Franks at the Congressional Internet Caucus Advisory Committee, sadly without any challenge, was set out in writing:

But the US has plenty of laws that do restrict speech and protect private information. Federal HI​PAA laws protect people’s sensitive medical information from being leaked by medical professionals and F​ERPA law protects the privacy of educational records. The list of laws ​protecting consumer credit information is so long it’s almost ridiculous.

So why do the spate of emerging revenge porn laws keep colliding with concerns about free speech?

“It’s absurd that there are not laws that protect us from having [pictures of] our genitals released,” Goldberg told VICE. “Besides HIPAA and credit card laws, there are also laws against obscenity and hate speech, and laws against sexual harassment. [Those] were opposed in the beginning.”

See the appeal of ignorance? It allows writers like Mary Emily O’Hara to post such drivel without any hint of scrutiny.  After all, she’s no lawyer, and how would she realize that each example offered has its independent substantive basis that fundamentally distinguishes it from the constitutional proscriptions on the anti-revenge porn laws?  Does she recognize contractual implications? Is she aware of governmental limitations? Did anybody mention the limited protection of commercial speech?

But to the ignorant and uninitiated, the analogy seems to make some sense.

Therein lies the harm of the false analogy. In order to understand why it’s false, why the analogy fails, it requires the reader, the listener, to be immediately capable of recognizing its fallacy.  That most people can’t, or won’t, do so is the game played to trick people into adopting the fallacy and buying into the lie.

The problem isn’t when people similarly ignorant use the false analogy. They can’t be helped, as they are no more aware of the falsity of their analogy than are those who hear them and embrace it. But when someone who should, who must know better uses it, then it’s no longer susceptible to excuse as an innocent mistake. It’s malicious. It’s a lie.  It’s a deliberate effort to deceive and mislead.

As lawyers, we are duty bound not to deceive, not to make the public stupider.  But then, not all law professors are lawyers, and hence they aren’t subject to professional responsibility.  Still, the resort to the use of rhetorical gimmicks, such as false analogy, to trick the unwary or lazy into adopting their views reflects on their competency and propriety.  And, of course, it reflects on the fact that they lack a legitimate argument in support of their position, which is why they use false analogy instead.

It’s not that all analogies are bad. It’s that bad analogies are bad. While use of analogy to clarify a complex concept may well serve a purpose, it’s far more likely that an analogy is used to trick and obfuscate. After all, persuasion matters more than honesty to the passionate, and isn’t that what’s really important?

* This post was originally entitled “Revenge of the Analogies,” but upon further reflection, it seems more appropriate to retitle it as an homage to this:

** Update:  Some might have thought, as I did, that Mary Anne Franks’ twit was some off-the-cuff snark, foolish enough in its own right but not to be taken as something written after cool, pseudo-scholarly deliberation.  I was wrong.

I eagerly await the deluge of criticism regarding this proposed standard for police searches. Surely there will be an outcry that such a standard for police searches will mean that all police investigations will now be considered crimes and will ruin good police encounters and that it will lead to innocent cops going to jail… or not.

It is worth noting that the reason police commonly give for not wanting to inform individuals of their right to say no, that is, to offer reassurance that police will not exploit the imbalance of power between cops and citizens to  coerce citizens into doing what they would rather not do, is that they are afraid individuals will exercise that right.

Those who decry an affirmative consent standard in sexual encounters, it seems, are afraid of the same thing.

This assertion is, well, inexplicable, irresponsible and, well again, unhinged. I say that as it would be rude to call it batshit crazy idiocy.

17 thoughts on “Attack of the Killer Analogies* (Update)

  1. Dan

    I dunno, there’s the word “affirmative,” there’s the word “consent,” we have a match! Or close enough. Haters gonna hate.

      1. Wheeze the People™

        Horseshoes, hand-grenades, and criminal laws — for each, close enough is good for a score, isn’t it?? . . . Er, um, never-mind, damn analogies; they sneak in everywhere . . .

  2. N

    Of course, there will be hysteria. But it will come from the badgelickers who just can’t stomach the idea that officers won’t have the chance to lie, bluster, and cajole an individual into permitting a search.

  3. Ken Hagler

    There’s another reason it’s a stupid analog: if college relationships were like police searches, then anytime a woman declined to consent the man could detain her while summoning a half-dozen heavily armed friends twice her size to intimidate her into consenting. If she still didn’t, they could simply remove the requirement for consent by walking a dog around her, after which they could do whatever they wanted.

  4. Dave

    Her analogy is so bad it makes no sense whatsoever. I read it and re-read it and I still don’t know what the heck she is trying to say. Maybe I am just dense or just on the fools are and of trying to make sense of nonsense.

    And as an aside to the awesome movie you referenced: AOTKT has a Real (as in unplanned) helicopter crash scene! Now there’s an anlogy I could use to reference back to the tweet above. …

  5. Fubar

    The problem isn’t when people similarly ignorant use the false analogy. They can’t be helped, as they are no more aware of the falsity of their analogy than are those who hear them and embrace it. But when someone who should, who must know better uses it, then it’s no longer susceptible to excuse as an innocent mistake. It’s malicious. It’s a lie. It’s a deliberate effort to deceive and mislead.

    Press release in mitigation, from the Department of Evolutionary Cryptogeology at an unnamed university:

    Each species of wretched analogy
    Has distinct and unique genealogy.
    Mary Anne’s brain’s not dead.
    She’s got rocks in her head —
    This we know through applied mineralogy!

  6. Laches

    Hard to display that much stupid in 140 characters or less.
    Dumbest thing I’ve read on this issue since Ezra Klein’s “its overreach is precisely its value”.

    And apparently she thinks that a 4th Amendment violation could result in a cop getting thrown in jail. Cute. If only.

    (BTW – long time lurker, first time commenter, love this place.)

    1. SHG Post author

      Of course she doesn’t think a 4th A violation could result in a cop going to jail. She’s just joshing us.

      And good to see you come out of the shadows.

  7. Pingback: Saturday Link Session | The Collaborative Compound

  8. Julian

    False analogizing aside, it will be hugely embarrassing for her when hysteria does in fact arise over how requiring affirmative consent to non-warrant, non-probable cause searches will lead to innocent cops being thrown in jail.

    Rookie mistake, she’s made, underestimating the power of dumb people to do the things that, to make a point, she’s sarcastically implied no one will do….

    1. SHG Post author

      Much to our chagrin, cops being thrown in jail for conducting searches without affirmative consent isn’t a real threat.

      1. Julian

        I was as sloppy as the ACA! What I meant was that (some) people will in fact get hysterical about the risk of throwing innocent cops in jail even though it’s not a real risk… and that hysteria will itself undercut what I took to be the good professor’s point, which is that society only cares about the risk of jailing innocents when those innocents are college men, cause misogyny.

        Of course, I could be misunderstanding her point. As Dave noted above, even on its own its own terms it’s tough to figure out exactly what she’s trying to say.

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