ACLU lawyer Josh Block was having none of it. Eugene Volokh pondered the question of whether University of Oregon law professor Nancy Shurtz wearing blackface to a party was racist. This is mentioned not because of Eugene’s analysis or outcome, but because he deigned to ask the question.
For this, Block attacked him because Eugene wasn’t black. Since blackface wasn’t something that, from Block’s perspective, a white person would find offensive, Eugene could not “persuasively”* parse the question, arrive at an answer. It wasn’t that he doubted Eugene’s bona fides as a First Amendment scholar, “There are 1A principles at stake but can’t just use examples of speech you don’t personally find offensive.”
The reaction came from Josh Blackman, who has emerged as one of the boldest academics in law these days,
Whether or not any argument is persuasive is always an open question. I didn’t find Eugene’s argument particularly persuasive either, but he had every right to make it. And despite Block’s effete position that he gets to impose his terms and conditions on the validity of other people’s speech, it’s the fact that he’s an ACLU lawyer that makes this significant.
Blackman responded in a post to Block’s twitstorm.
When I write about legal issues, I try very hard not to make it personal. That is, I want my arguments to stand by themselves, regardless of who I am, where I was born, who my ancestors are, where I pray, how much money I earn, who I love, etc. None of that should matter. Alas, for many people it does. I’ve heard more times than I can count that because of my “privilege,” I lack the “agency” to write about a host of hot-button social issues. Whether or not the “privilege” argument has any merit on its own, if taken seriously, the result is silence: I can’t speak about a topic unless I have the agency to do so. Part of a broader culture of political correctness, these censorious policies are inimical to academic freedom, and more broadly, the freedom of speech.
Implicit in Block’s “rules” is that no one is entitled to speak on actual issues, such as Shurtz’s blackface unless it fits the rules of personal offense. Eugene is Jewish, so he’s allowed to discuss Shylock costumes with hooked noses, Block explained further.
Of course all of these things are protected by 1A. But when asking others to toughen up it helps to show you ask yourself to do the same.
Notably, he uses words like “helps,” as he used “persuade” earlier, as if the wiggle words moderate what he’s saying. This is nonsense. If he wants to call someone a hypocrite for telling others to suck it up while refusing to do so themselves, he could have. He didn’t. Had that been the case, it would have been unremarkable, pointless even. Block didn’t engage in a twitstorm against Volokh because he wasn’t quite as persuasive as he might have been.
Greg Doucette was fooled by the wiggle words. Mark Joseph Stern was not:
Eugene Volokh’s post questioned whether the “speech” involved was, under the facts and circumstances, racist. As Stern correctly understood, Block’s point was that he isn’t allowed to raise that question. It’s racist because…it’s racist.
For the sake of responding to Josh Block’s core attack, I’ve made my bones when it comes to his requirement that the attack should be personally offensive to me. So much for his worldview that his kind of good people should wallow in the misery of hurt feelings. He’s a snowflake. He feels everyone should be (or really, secretly is) a snowflake. He believes anyone who doesn’t share his feelings about snowflakes is not just wrong, but not entitled to express the view that the problem isn’t speech, but snowflake sensitivity to speech.
The irony here isn’t that Block suffers from undue sensitivity, or his “privilege” of deciding for the world what speech is racist, and what is worthy of his noblesse oblige to protect despite its being horrifying. The irony is that Block is an ACLU lawyer who felt it worthwhile to attack Eugene Volokh not for his dedication and scholarship on free speech, but for exercising his “privileged agency” to engage in a discussion that didn’t involve a Jew with a hooked nose.
The wiggle words are malarkey. The arguments speak for themselves. And their value isn’t left to the sensibilities of an ACLU lawyer’s approval of your right to question or discuss. But that anyone, no less an ACLU lawyer, should argue that someone needs to meet their criteria of entitlement before being allowed to discuss issues of significance, is a disgrace. No one needs to Block’s approval to discuss what is or is not racist.
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He’s busy on the twitters trying to dig himself out of his hole. He was just helping out Volokh because he’s a great humanitarian.
So I see. Weasels gonna weasel. Too bad he doesn’t have the guts to try to make his pitch here or at Josh Blackman’s post.
SHG,
From start–the nutjob at Oregon–to finish–the nutjob at the ACLU, the entire series of events, including EV’s post that stirs the pot for no apparent reason other than to satisfy WAPO content pressure, is meaningless.
Who the fuck cares? Nothing good or bad will come of any of this. That is the very nature of the art form known as the long-form circle jerk.
All the best.
RGK
When you put it that way, you make the long-form circle jerk sound unappealing.
Having watched a great many people softly slide down the social justice slope, only to find themselves in irreconciliable conflict with constitutional rights, clients’ interests and conflicted feelings, these issues are fought to try to create a ledge to stop the slide and maybe give those who haven’t lost their head some company.
Will it work? Beats me. Will it shift back of its own accord eventually? Probably, though who knows when or how much damage will be done in the meantime. But the slide seems to be extremely seductive to a great many well-intended people, and they seem very happy to chase their ends without much thought to the means.
Does anybody care? Maybe not. Except for me and a few others.
Scott,
Now, I feel like an asshole. That’s OK, I am.
Have a good New Year’s!
All the best.
RGK
It’s a big club, Judge. Welcome!
Pretty sure Judge Kopf just called you a pointless nut in a circle jerk.
He was being nice to me.
Mr. Block’s twitter subtle argument about persuasion still betrays the principles of organization he belongs to. The very idea that one’s attachment to a community or sexual orientation gives them a greater say in the interpretation of the 1st Amendment is ridiculous. Mr. Block’s defender’s are pointing out that he meant persuasion, but the mere idea that an oppressed voice is the only voice that can persuade is dangerous. We cannot have a generation of citizens growing up thinking their feelz outweigh 400 plus years of principles. Principles that cost people their lives for us to use in the 21st Century.
I once had a white college girl (social work major with women’s studies) tell me that she believed her women’s studies dept was dominated by “white upper class women” and they needed to bring a lesbian black woman on to the women’s studies dept for more prospective. She actually said, “I don’t feel that my voice is as important as a LGBT black woman…. I feel that white people as a whole should take a step back”. She also told me their were too many Border Patrol Agents and that the organization was “discriminatory and racist to its core”. I am not making this stuff up.
Assuming, arguendo, that his subterfuge of calling it persuasion was sincere (I don’t believe that to be the case), it’s far more concrete than “a greater say.” The argument is that it’s only legitimate for a black person to discuss what’s racially offensive, or a woman to discuss what’s sexist. Block used anti-semitism to contend that Eugene could only be “persuasive” to make a point because he’s a Jew.
By definition, this means that while others may be allowed to make noise (we’re forced to tolerate their noise because of free speech), they are not entitled to legitimacy despite the merit of their arguments. Bullshit.
How can it be remotely OK for a white male to tweet about how to persuade POC? I’m literally shaking.
I know, right?
I wonder whether this might be a SJ variation on the theme that the only people who should talk about certain professional subjects (e.g, the law, engineering, real sciences (physics and chemistry), real medicine, astrophysics) are those who actually practice in those fields. Everyone else generally gets things wrong, because much of the interesting stuff is complicated, and may even be nuanced.
I have always thought that the SJWs and the social scientists have always had status envy of the hard professions, and that a lot of what they do (soft research and peer review, conferences and papers with language that cannot be comprehended by anyone else, deconstructionism) is their attempt to gain similar status. Maybe this is just an attempt by the SJ lawyers to gain more status for their arguments about how they think that the law should work.
There’s a difference between substantive knowledge and the “righteousness” of feelings. There’s a reason I don’t have much to say about quantum mechanics. But that doesn’t mean that you don’t have a point that someone who feels something personally believes that gives him a deeper understanding than someone who doesn’t.
When i hear people using agency in that definition, i always just assume they are trying to make their feelings sound less like feelings. It’s a completely subjective word and to use it means you are consciously refusing to debate/argue based on the same definitions, a.k.a. you know your argument is a loser.
And if Mr. Block’s opinion were even remotely legitimate, acknowledging he has every right to one, how do you explain all the whiteys on the Supreme Court making decisions regarding race, religion, etc? “Well, he’s white, so we don’t have to listen to him or her.”
I mean, what they’re really saying is that, when any Supreme case involves racial issues regarding Hispanics, only a certain Supreme gets to have an opinion because all the others lack agency? From ACL Lou nonetheless.
“If your minority isn’t on the Supremes, well, too bad, we can’t make a decision on any case involving that minority. We lack the agency.”
That’s what Mr. Block sounds like to me.
Being a bit of a stickler for words having meaning, it’s been rather hard for me to endure a lot of the feelz jargon for that reason.