The Annual Meeting of the American Bar Association, held in Canada as there was no American city worthy, produced little of surprise beyond the  distribution of free condoms to the participants.  I hear that some put the condoms on their heads, which makes perfect sense.  What was surprising was that the condoms were free, as if the delegates wouldn’t have paid double for them if they had to.

With this backdrop, outgoing ABA president Stephen N. Zack used his bully pulpit to call for a change from lawyers.  Not for a return to integrity.  Not for a return to the zealous representation of their clients.  Not to stop the downward spiral of deception in the quest to make money.  From the ABA Journal :

ABA President Stephen N. Zack today called on lawyers to take the lead in returning civility to a public arena that has come to be dominated by anger and insult.

“Civility used to be inherent in public discourse,” Zack said in an address this evening to the Opening Assembly of the ABA’s 2011 Annual Meeting in Toronto. “Where did we go wrong?”

Too often today, said Zack, whose one-year term as president ends Tuesday, the approach people take to political discussion and debate is characterized by an attitude that, as he described it, “I disagree with you, and not only that, but you’re a bum, and I’m going to yell so loud I can’t hear what you’re saying.” That tone cannot continue, Zack told a packed audience at Koerner Hall in Toronto’s Royal Conservatory of Music. “The continuing slide into the gutter of incivility demeans us all,” he said.

A kinder, gentler nation. Why does that sound so familiar?  While it’s not clear the arena to which Zack directs his remarks, as it’s not clear whether he’s speaking of ad hominem argument or the tendency toward the substitution of lies for fact or pushes for violence. 

If his focus is national politics, then he’s mistaken.  America has a checkered past when it comes to civility, although our national memory often ignores the rough words and remembers only the platitudes.  “Screw you, Madison, you blithering idiot,” would hardly seem right etched into the lintel over a legislative chamber.

An issue raised by such calls is that they are used by self-serving scoundrels as a sword rather than a shield.  How often does someone propound a point by arguing, I am right and anyone who disagrees with me is mean, stupid and ugly? 

To this end, it’s critical to understand one of the most misused phrases in the lawyer’s lexicon, ad hominem. It comes from the logical fallacy, argumentum ad hominem, which refers to attacking the speaker and his motives rather than the argument.  It’s often misunderstood as saying uncivil words. It’s not.  If an argument is stupid, or the motives of the arguer undermines the argument, it is not an ad hominem attack.  Indeed, it is often the appropriate response to argumentum ad ignorantiam .

Which raises the crux of the problem, that the real issue seems to be that people want to be free to make whatever point they want, whether it’s a well-founded, factually accurate, logical point or their unfounded, irrational, knee-jerk feelings, without anyone challenging them or taking them to task for what they say.  It’s an entitlement, the right to express an opinion.

The snarky response is that opinions are like assholes, everyone has one and they all stink.  But this is unhelpful, and untrue.  Some opinions are illuminating and raise issues worthy of thought, if not agreement.  Some aren’t.  Some are just stupid, baseless and worthless.  And yet people feel empowered to tell them to the world.

The other day, I twitted about a sentence in a cases, and someone twitted back to me with a question about it.  I responded, although I didn’t know the person and believe he was either a law student or young lawyer.  He replied by telling me what he thought (“I think the law is stupid”).  My sur-reply was, “who cares?”  Not only did I not know this person, but I certainly didn’t invite him to express his opinion. I answered his question, nothing more.  My reaction was less than warm, but was it wrong?

There is no interest group out there advocating for less civility in public discourse, but that masks the problem.  The nature of argument is poor is generally poor, whether because it confuses feelings with reasoning, relies on falsehood or self-serving assumptions rather than fact or employs a logical fallacy. 

On the sidebar of this blawg, I include the following:

I invite thoughtful comments, but please keep it civil and respectful.

With regularity, someone will point to these words and play “gotcha” with me, whining that I have not been civil and respectful to them.  They miss the precatory phrase, that I invite thoughtful comments.  The poverty of thought is often astounding.  There are times I mutter to myself, how does this person manage to get out of bed in the morning without hurting himself.  I fully expect the person posting a comment (and often a question, which I note is not a comment) to believe that whatever it is he’s thinking (or more likely, feeling) is indeed thoughtful, if not downright brilliant.  This is a very subjective determination. Here, I get to decide because this is my home.  Elsewhere, it’s not my call. Or yours, unless it happens to be at your home.

President Zack’s call for civility is banal.  Of course, it would be much nicer all around if we were all civil with each other.  But it starts with a higher level of thoughtful public discourse, and frankly, much of it starts in the gutter and stays there.  If we were capable of better thought, we would have more civil discourse. If people limited their public discourse to rational ideas, they would be far more likely to receive a civil response.

People feel empowered to spew any nonsense that pops into their minds, and with the absolute belief that they are entitled to do so, and do so without impunity.  This is the root of incivility, and the expectation that others owe you civility in return for stupidity is misguided.  So you want to be treated with civility and respect? Then control your impulse and say things worthy of civility and respect. You know, thoughtful things. 

If only Zack focused on the action rather than reaction, he might have been on to something. Instead, he was just giving away free condoms.  No one will get a disease, but no one will give birth to a worthwhile thought.