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**:
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 HIPAA laws protect people’s sensitive medical information from being leaked by medical professionals and FERPA 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.