Judge Richard Kopf raised a question that served as a litmus test for language. Were the words “characteristically emotional,” without any further information, sexist? As the judge noted, many thought so, and one lawyer who raised the question of whether the words might not be sexist, but rather an individualized, maybe even accurate, description was not treated well for doubting.
The other day, the question was raised whether academics should be subject to detailed, specified twitter “norms” to maintain the image of propriety of the Legal Academy. UNC lawprof Carissa Byrne Hessick received support for her idea,* but also some pushback.
I find it a bit odd that in making the case for, among other things, more civility from professors who tweet, I’ve been criticized for failing to call out, by name, those profs who have not been particularly civil.
Some would argue that omitting the names, or at least the specific twits giving rise to the call for “norms,” leaves others without a clear understanding of what the problem being cured is, but is passive-aggressive. Others would argue that academics are a peculiar breed, extremely reluctant to hurt any colleague’s feelings under the guise of civility. Is clarity the enemy of civility? Is naming names an act of incivility?
What is Hessick saying by “I find it a bit odd”? Is this prawf code for “I’m hurt” or “offended”? Is it something else?
In response to Judge Kopf’s post, commenter Nemo offered an extremely important point.
I think it useful to preface this with a point: No two people who speak the same language speak exactly the same language, and the tripping point is not in the unfamiliar, but the routine. Think about it; how many times have you, the reader, and a friend agree on something, only to find that the understandings were different? A time for a dinner date’s only the most obvious example of that.
Communication is a two-part process. It involves a sender and receiver, and the message sent isn’t always the message received. That’s an inherent problem in different people coming from different perspectives, experiences, educational-levels, speech norms, trying to talk to one another. It’s nothing new.
What is new, however, is the reach for offense without understanding. If Judge Kopf’s example was to be answered, it would require more than just a knee-jerk response to a phrase without more. Yet, many were happy to decide that the phrase was wrong because it was. But worse, they refused to hear, or consider, the skeptical lawyer’s issues with their leap to believing the accuser. They not only chose to believe, but they chose to disparage the interlocutor who didn’t believe.
A similar issue arose with Hessick’s reaction to those who questioned the impetus for her call for rules. Rather than consider their question as to what she’s really talking about, who did the dirty and what exactly the dirty was, she took it as an affront to their merely believing that she must have good reason for her crafting rules for twitter. Maybe the prawfs tacitly disparaged deserved it, but to react by calling those who questioned her as uncivil was an ad hominem.
Who decides what’s uncivil? Who decides whether words and phrases are on the forbidden list without regard to intent, accuracy or contextual meaning? Who decides that challenging the scolds is itself an evil deserving of disparagement?
But as Nemo went on, this isn’t merely happening with random SJWs, but with lawyers and law professors.
The more important point, I think, is that there are social expectations that do not hold true in a courtroom. As another example, social norms hold that deliberately making a young woman cry is a deplorable thing. But in court, it can be highly appropriate, if a lawyer is exposing her fabrications with her on the stand. Zealous representation, I gather, can require a bit of tactical rudeness.
This is certainly correct from this old lawyer’s perspective, but I doubt many (not all, but many) young lawyers would see it this way anymore. They refuse to think hard enough to remember that their duty is to their client, not social justice. They would let their defendant lose before violating the norms of their perceived propriety.
Nemo’s general observations, about the infusion of ambiguity into words, that offense is solely in the eyes of the offended, that every offense is an outrage that must be stopped, strikes home.
Taking offense has become so socially and politically useful that folks are more inclined than not to take offense over a trifle, when it seems beneficial. The trouble is that it’s the top priority fallacy coupled with “crying wolf”. If everything is top priority, nothing is, and a plethora of false alarms leads one to ignoring all alarms.
But this creep of politically correct tone policing, for lack of a better description, into the courtroom and the law school classroom is different. Our legal tradition puts the onus on the accuser to make their case, to prove their accusation. It’s one thing for the unduly woke to shriek at everything, to view the world through the lens of victimhood. But lawyers can’t do that if we’re to be lawyers.
In a slightly snarky aside, Judge Kopf pointed out that the “Dean of #AppellateTwitter” added “[W]ow, this is awful.” It is awful. It’s awful that he so fears the disapproval of the children that he can’t muster the guts to say “wait a sec, maybe this isn’t what you think it is, and maybe the skeptical lawyer who asks a question isn’t literally Hitler for not expressing mindless belief and empathy.” Somehow, I don’t think that’s what the Dean was trying to say.
It’s bad enough that so many people refuse to consider that people who don’t adhere to their words aren’t the enemy. But when lawyers and prawfs can’t find it in their minds to be clear that their leaps of faith are well-grounded before attacking, then how can we fulfill our function as lawyers?
If you don’t have the guts to call bullshit on bullshit, or if you can’t get past your ideological assumptions that others are evil for questioning your religion, then you can’t be a lawyer, no matter how much you want to tell others you’re a fabulous lawyer. We question. We challenge. We make decisions based on evidence. And we hurt feelings sometimes. Or at least, we used to. And it wasn’t because we were misogynists, or racists, or any other -ists, but because we are lawyers. And we were tough enough to take it.
But if that’s no longer the case, then why are we bothering?
Update: Civility? It’s just a social construct of racism and the patriarchy.
Already suffering from white privilege and white fragility, some of America’s 260 million white people picked up The Wall St. Journal yesterday and discovered they were suffering from yet another unsuspected ailment—civility. As explained in a Journal op-ed by journalism professor Steve Salerno, “whiteness informed civility” gives whites the impression that they can conduct conversations with black people without confessing that whites are agents of oppression and patriarchal power.
As Salerno tells it, “whiteness informed civility” is affecting college debates, leading some debaters to challenge the rules and format of debates and even to change the topics of debates to talk about race instead of the agreed-upon subject. Salerno says a few of the debates result in profane outbursts and thrown furniture.
While not necessarily an agent of racism or sexism, I’ve long been troubled when “civility” is used to deflect and avoid substantive issues by refusing to engage in debate with a “toxic tone., as if the “civil” person gets to dictate the words or tone of her adversary.
*Whether the support was for the notion that prawfs should be more circumspect in how they deploy their academic cred or for the institution of rules to be used to disparage violators remains unclear.
It should be understood that there is a difference between prawfs conducting themselves “appropriately” because that’s how they believe they should act, as opposed to complying with rules because that’s how someone else tells them to act. Or else.