Category Archives: Free Speech

Current Events, Discourse, Ethical Issues, Free Speech, Social Criticism

Polarization

We talk a lot about polarization today, but polarization is not a simple single thing. The term is used in different ways by different people. Most usages are pretty sensible, but I think it would be useful to clarify what is usually meant when we talk of polarization. There are actually (at least) 3 main types of polarization. My aim here is to make the 3 clear and to point out how we are and are not polarized.

Perhaps the most ordinary use of the term polarization is to indicate that there are, in fact, two polar extremes when it comes to political views. Call this empirical polarization (EP). EP exists when there are two camps/sides taking opposing views about some issue or set of issues. That points to one distinction immediately: it could be broad or narrow EP—that is, it could be EP about overall worldviews or EP about specific issues. Presumably, there could be a spectrum. Cutting across this divide, though, we might also be concerned about specific groups—for example, is the EP present in the general population, political office holders, the literati, or some other group? I assume the most ordinary use of the term polarization regards the presence of broad EP in all three of these groups.

The second form of polarization we should note is what has been called affective polarization (AP). AP is present when people in two camps feel like they are seriously opposed to—and by—those in the other camp. Democrats feel like Republicans are evil, anti-democratic, out to destroy the polity. Republicans feel the same way about Democrats.

The interesting thing to note now is that though it seems fairly clear that there are high levels of AP in the US right now, the feelings on both sides don’t well correlate to actual differences of opinion. That is, though AP is high, EP is not. The evidence shows that democrats and republicans do not disagree about all that much. They think they do regardless. To shocking extents. Consider that

only 35 percent of Democrats thought that Republicans would say that “Americans have a responsibility to learn from our past and fix our mistakes.” But 93 percent of Republicans agreed with that statement.

only 45 percent of Republicans thought Democrats would want students to “learn about how the Declaration of Independence and the Constitution advanced freedom and equality.” But 92 percent of Democrats said students should learn this. (Education Week, making use of More in Common)

This is striking.

The third form of polarization that I think we should be aware of is what Bob Talisse calls “belief polarization” but I will call “dynamic polarization” (DP). DP exists when group dynamics take the presence of any EP or AP and push members of each group to more extreme versions of the group’s beliefs. Those on the left who are “woke” associate with others who are “woke” and jointly push each other to be even more woke. Those on the right who are anti-woke associate with others who are anti-woke and jointly push each other to be even more anti-woke. Given this dynamic, each side comes to see the other side more and more as evil (and as more and more evil). Also, though, each side loses patience for those on their own side who have any inkling of genuinely dialoguing with those on the other side. Each side becomes more conformist and purified by ridding itself of those who won’t go to the same extreme as the rest. For more on this, see Talisse.

Again, affective polarization can be high even if empirical polarization is low—even if there is not much in the way of real disagreement. Dynamic polarization tends to go along with affective polarization. It is the fact that our affects are as they are that we are pushed to more extreme versions of our beliefs. The more we feel different from the other—whether or not our beliefs are different from theirs—the more we lose willingness to engage with those who seem willing to consider what the others have to say.

What is the take away here? If you associate only with people that you tend to agree with, you should wonder whether the claimed disagreement with others is real or, if it is real, if it is as significant as those you speak with believe. While it may be, there is a very good chance it’s not. Especially if you are a US Democrat or a US Republican. If more people realize this, perhaps we can stop DP and reduce AP. For 6 steps that might help, see this piece at Discourse Magazine.

Current Events, Discourse, Economics, Ethical Issues, Free Speech, Political Philosophy/Theory, Social Criticism, Toleration

Continue to give the gift of questioning in the New Year! 

I was recently on C-Span discussing civil discourse, was on the Newstalk STL radio show discussing it, and was interviewed for a piece posted at MLive. I thought I’d follow those up with a couple of posts encouraging civil discourse over the holidays. Here’s the second.

The gift giving holiday season is ending.  My hope, though, is that we can nonetheless use the spirit of the holidays to the advantage of the polity by continuing to give each other the gift of questioning in the New Year.  Questioning each other and ourselves is always useful, perhaps especially in politics.  

Fortunately (and despite fears), the midterm elections of 2022 went well.  There were very few worries raised about election integrity and those falsely pressing claims about past problems with election integrity mostly found themselves on the losing end of elections.  While this is great news, we shouldn’t rush to conclude that democracy is now secure.  We need, and should expect, more from ourselves than we’ve been giving.  In particular, we need more from those we disagree with, whether they be family members, friends, neighbors, or people we know in the cyberspace of social media.  And they need more from us.  I hope more people can work on this and begin to satisfy those needs and, in the process, perhaps, give the world the gift ofsecure democracy.

Consider the sort of vehement disagreements we often hear about (or take part in) about who the best candidate is for any particular post.  These are not new.  We’ve always had them and likely always will.  What matters is that we not devolve into thinking that the candidate we favor is ideal, completely above partisanship, ideology, and plain self-interestedness, while the candidate we oppose is partisan, ideological, self-interested, and out to destroy our lives.  To pretend that “our candidate” is as kind as Ol’ St. Nick or that “their candidate” is as terrible as Scrooge himself would not be in the spirit of the holidays.  

Those seeking our votes for political office usually have their own interests in mind.  As economist James Buchanan pointed out, there is a symmetry of motivations between politicians and those in business (or any other area).  Recognizing this is important.  It means, for example, that a politician that promises something that seems to be against her own interests is deserving of our skepticism.  Admitting that skepticism to each other—both to those who vote like us and those who do not—might be the single most important gift citizens in a democracy can give one another.  This questioning—especially of own political parties—would reduce political rancor and polarization, promote more informed voting, and perhaps get us better political leaders.

Given the symmetry of motivations between business people and politicians, we should consider a standard sort of constraint we impose on business people: the expectation of honesty.  It must apply to politicians as well as anyone.  At a minimum, after all, we want our elected officials to be honest.

We have to expect that those seeking office will work to get votes and we have to realize this incentive might discourage honesty.  We should, nonetheless, expect candidates for office to be honest in the process of campaigning and, if they win, while in office.  We should expect them not to intentionally seek to deceive. We should expect them to answer any questions put to them forthrightly.  (At least with regard to any questions relevant to the post to which they seek election.)  If they are caught failing in this regard, they should lose our support.  We should not vote for them, even if they are members of the party to which we claim some form of allegiance.  Voting for the polity, rather than voting for your party, is another gift of and to our democratic polity.

That we should not vote for a member of the party to which we claim some allegiance requires that we reject identifying ourselves as member of that party.  As soon as a member of “our” party (or other group) shows that he or she is not worthy of our trust, we ought not support them.  We ought to care more about the values of honesty and trustworthiness—as well as the polity as a whole—than we do about party affiliation.  

Consider committing to this as a New Year’s Resolution: I will question my own party as much as the other party and vote for polity over party.  There will be times, of course, that voting for the polity will be voting for your party.  At times, your party will have the better candidate.  To think it always has the better candidate, however, would stretch credulity as much as thinking Santa lives in a Chanukah menorah under the sea.  

I realize that putting honesty, trustworthiness, and the polity above party affiliation is a hard sell in our current political climate.  To see that it is not unreasonable, consider two intraparty conflicts.  

Reagan Republicans would likely endorse the recently proposed Federal American Dream Downpayment Act, which would allow people to start savings accounts with tax exempt funds to be used for a down payment on a home (similar to 529 accounts for college savings).  Many Republicans, however, seem to talk about this as a socialist give away rather than a reduction in taxes to incentivize home buying.  This is an intraparty conflict; the two groups can’t fully identify as the same.

On the other side of the aisle, it is very hard to imagine a Clinton Democrat endorsing anything like the populist economic policies of Bernie Sanders or the economic policies supported by those like Alexandria Ocasio-Cortez, rooted as they are in “Modern Monetary Theory.”  The details of those views do not matter here.  What matters is that this is another intraparty conflict; the two groups can’t fully identify as the same.

Given those intra-party debates, its clearly possible to cleave space for individuals to accept parts of a party’s platform while questioning and even rejecting other parts.  Doing that is part and parcel of the openness to discourse—disagreement!—that I seek to encourage.  We can encourage this by being willing to question each other, the candidates we are considering, and the platforms of the parties, especially our own.  If we can do this, we can more honestly evaluate candidates and policies from all parties.  That would help reduce polarization.  We would no longer adhere to a party line, endorsing a candidate merely so that “our party”—our team—can be in control.  We would be looking instead for what is the best way forward. There is no better gift to give each other in these polarized times.

I urge everyone to make a New Year’s Resolution to question their party as much as the other party and vote for polity over party.

Current Events, Discourse, Free Speech, Misc Academic Issues, Social Criticism, Toleration

Gifts of Discomfort for the Holidays

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I was recently on C-Span discussing civil discourse and today a piece I was interviewed for was posted at MLive. I thought I’d follow those up with a couple of posts encouraging civil discourse over the holidays. Here’s the first.

Years ago, the parents of my college girlfriend gave me a copy of Dale Carnegie’s How to Win Friends and Influence People as a Christmas present.  They clearly thought (probably correctly) that I was not very good at talking with people.  That was a long time ago, but it was important.  I think my girlfriend thought (probably correctly) that I was insulted.  In giving me that book as a gift, they made me uncomfortable, making me think more about some of my shortcomings.  The thing is, it helped me.  So, thanks to them. 

In being willing to give me such a gift—a gift of discomfort—they helped me become a better person, one (somewhat) better at engaging with others than I had been.  For me, for what it’s worth, this is a continual process and my wife now gives me that gift from time to time as well, helping me see where I can improve when engaging with others.  So, thanks to her.  

Very often, the way we improve is by being uncomfortable.  A second example from my life: in the last year or so, I’ve lost almost 100 pounds.  Why did I work to lose that weight?  Because I was uncomfortable with the increased health risks of being overweight and with and the thought of leaving this world early.

Being uncomfortable can spur us to be better.  Making each other uncomfortable is thus often a gift.

Perhaps what I’ve said so far will sound entirely reasonable.  But the idea that we grow from discomfort is far more important than it leading to better interpersonal engagement or improved health for a few.

Consider what we might call “epistemic discomfort”—the lack of comfort in one’s beliefs.  Epistemic discomfort is often caused by being faced with opposition to one’s beliefs.  When someone goes away to college, for example, they might for the first time meet people from a big city, or from a farming community, or from a different religious or cultural group, or even from a different country.  When you meet people like that you find out that there are a huge number of beliefs that are different from yours—sometimes radically opposed to yours.  When you learn of those beliefs, especially when it’s the first time, it has a way of challenging you and putting you in a position of epistemic discomfort.

Many seem to hate epistemic discomfort and seek to avoid it when possible.  This is true of many college students—who often refuse to disagree with their peers or their professors, choosing instead to self-censor.  This is true in our broader culture as well.  Indeed, many believe it is simply rude to disagree with others.  All of this, I believe, is a mistake.  We should be willing—indeed eager—to express our disagreement with others.  Sometimes we ought even be willing—indeed eager—to express some imagined disagreement with others.  

Providing others disagreement is giving them the gift of discomfort.  It is a way of encouraging them to think more seriously about what they believe.  Often, they will do so and remain committed to what they already believed, finding flaws in the opposing ideas or ways to bolster the ideas they already had.  Often, though, they will realize it was their own ideas that were flawed.  Either way, they will be better off—either having better reason for, and perhaps more of a commitment to, what they already believed or discarding unsupportable beliefs for more supportable beliefs.  

Importantly, the gift of discomfort that we can give to one another is not just a gift for the individuals receiving it.  It is also a gift for the entire polity.  A culture that takes seriously opposition beliefs—a culture that encourages people to express their disagreements—is a culture wherein people do not easily take offense by what others say.  A culture that takes seriously opposition beliefs is a culture of individuals that can argue civilly, without rancor.  It is a culture that can seek and reach political compromise.  It is a culture wherein polarization has no place.  It is a culture where liberal democracy can thrive.

This holiday season, consider giving the gift of discomfort.

Current Events, Discourse, Ethical Issues, Free Speech, Social Criticism, Toleration

Solidarity and the Speech Rights of the Marginalized

Those sympathetic to libertarianism and classical liberalism tend to take free speech seriously. Beyond opposing the state regulation of speech, those sympathetic to libertarianism and classical liberalism also tend to favor social norms that are more, rather than less, permissive of different kinds of speech. Recently, however, members of the popular culture have expressed support for social norms that are less permissive of different kinds of speech, specifically for members of marginalized groups. This is evidenced by the growing number of people who are content to deride Black opponents of race-based affirmative action policies as “Uncle Toms” and “Aunt Jemimahs,” as well as by those who are content to lambast pro-life women for being traitors who’ve been brainwashed by the patriarchy to hold the views they hold. For the remainder of this post, I will show the problems with a line of argument someone could take to defend these liberty-constraining norms. By doing so, I hope to provide those sympathetic to libertarianism and classical liberalism something in the way of a response to those who favor social norms that are punishing toward those members of marginalized groups who express certain controversial views. 

Someone might argue that people, and especially members of the Black community, are permitted to meet the criticisms of race-based affirmative action policies made by a Black conservative with racially charged epithets, threats of ostracism, and ostracism by appealing to the value of solidarity. They might say that in order to overcome the threats of anti-Black racism in liberal society, Black people ought to show a united front. A single Black person alone cannot significantly change how racist their society is, but perhaps all or most Black people can. So all or most Black people should express support for policies and norms that are likely to significantly change how racist their society is. A Black person’s failure to support such policies and norms might be claimed to set back the interests of other Black people, since all or most Black people must show a united front to confront anti-Black racism in society. Alternatively, a Black person’s failure to support such policies and norms might be claimed to be unfair, since other Black people have burdened themselves to the benefit of the Black person in question by engaging in certain kinds of activism but the Black person in question does not likewise burden herself to the benefit of other Black people who have arguably benefited her. 

I draw issue, however, with the claim that members of a marginalized group such as the Black community must show a united front to overcome the oppression they face as group members. It seems that dissident members of marginalized groups have been positively instrumental to the end of overcoming the oppressions that members of these groups face. In the late nineteenth and early twentieth centuries, Booker T. Washington and W.E.B. Dubois were engaged in debates about what was necessary for Black liberation to be brought about in America. Dubois strongly disagreed with Washington’s views about how Black people bear the brunt of the responsibility for making something of themselves in American society, and wrote in The Souls of Black Folk that “Honest and earnest criticism from those whose interests are most nearly touched,––criticism of writers by readers, of government by those governed, of leaders by those led,––this is the soul of democracy and the safeguard of modern society” (36). As Dubois says, it appears that dissent within marginalized groups about matters that affect group members is crucial to these group members identifying viable means through which to resist the oppression they face. 

We can see this insight at work especially when we consider the cases of Andrew Sullivan and Camille Paglia as dissenting members of the LGBT+ community. In 1989, Andrew Sullivan (a gay, conservative political commentator) published the first national cover story in defense of same-sex marriage legalization in The New Republic. The principles he appealed to in this piece, however, were not those that were embraced by all, or even most, gay people. And in 1990, Camille Paglia (a lesbian academic) published Sexual Personae, a work in which she offers a compelling defense of androgynous gender presentation, albeit by predicating her view on traditionalistic understandings of gender of which members of the LGBT+ community are skeptical. The contributions that both of these thinkers made to public discourse on the matters they wrote about were profound. And if we were content to enact social sanctions against them for being heterodox members of the LGBT+ community, we might find ourselves deprived of the social progress they may have in part been responsible for since they would be deterred from speaking their minds. This, I think, speaks in favor of norms that are more, rather than less, permissive of members of marginalized groups speaking their minds when their views stand in tension with the “consensus” views of their communities. 

Even if it were true that liberation for marginalized people is possible only by getting all or most members of each respective group on the same ideological page, it would not follow that dissenters in these groups do anything wrong by dissenting. Consider a parallel context in which a problem of collective action does not generate obligations for individuals to resolve the problem. It might be true that one of the only ways to put a stop to the atrocities that take place on factory farms, for example, is by getting everyone to adhere to a vegan lifestyle. Still, it would be inappropriate to claim that individuals are obligated to adhere to a vegan lifestyle on these grounds, because any individual’s adherence to a vegan lifestyle will not make a difference to the number of animals being brutally slaughtered on factory farms. Likewise, it would be inappropriate to claim that dissident members of marginalized groups are obligated to suppress their views, because any individual’s choice to suppress their views, at least in the vast majority of cases, will not make a difference for how oppressed other members of their groups are. And if dissident members of marginalized groups have no obligation to suppress their views, the strongest basis for justifying social sanctions against them is unavailable to those who wish to belittle or ostracize these members for expressing their views.
 
There is obviously much more to be said about these issues. There might, for example, be other lines of argument one could take to justify the claim that members of marginalized groups are obligated to suppress their dissident views. Or, one might be concerned with justifying the claim that dissident members of marginalized groups have moral reasons, rather than a moral obligation, to abstain from expressing their views. I do not have enough space to address these arguments in this post, though I hope to take them up in future posts. Still, I think it is useful and important to know that at least one of the arguments that could be offered to justify less permissive speech norms for members of marginalized groups is unsuccessful.

Thanks to Andrew Jason Cohen for helpful feedback on an earlier version of this post.

Current Events, Ethical Issues, Free Speech, Law & Legal Philosophy, Political Philosophy/Theory, Toleration

About Service To All

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Political polarization is a now common phenomenon. Whereas people in the past believed their children should not marry someone of a different race or religion, it now seems that a growing number of people believe their children should not marry someone of a different political party. (See this.) Perhaps this switch is understandable.

Humans tend to be tribal (see Greene) and as the tribal connections based on race, religion, and even ethnicity, have grown weaker, it may be that bonds based on political affiliation have become more important. In any case, we have seen instances where store owners want to refuse service to those who reject their ideological commitments—perhaps only one (mask wearing requirements vs mask wearing prohibitions) and we may see more (Democrat vs Republican). Should store owners be legally permitted to refuse service to those they disagree with on some ideological ground? This is not a new question; it’s an old question simply focused on a new sort of difference.

In the past, we’ve asked whether white store owners should be able to refuse service to people of color, whether heterosexual store owners should be able to refuse service to homosexuals, whether Christian store owners should be able to refuse service to non-Christians. My answer here is the same as my answer to all of those: yes, with a caveat. (NOTE: I am not asking if someone from one group should refuse service to anyone outside their group; I am asking if they should be legally allowed to. In my view, it is frequently the case that people ought to be legally allowed to do things they ought not do.)

My basic view is that in denying a person service, the store owner is not essentially doing anything to the individual and so cannot be said to be harming them. I won’t press that point though. It is sufficient that if it is harming them, it does so without violating their rights or otherwise wronging them (it may be stupid or misguided; I suspect that for many refusing service to someone of a particular group, it is less about those others and more about their desire to live their own life as they think they should).

Absent wrongful harm I do not think interference—e.g., to require the store owner provide the service—is permissible. Putting this differently, my basic view is that one needs an argument to show that a business-owner’s refusing to serve a particular customer wrongfully harms that customer if one wants to override the presumption of liberty that the store owner has to run her store as she wishes. While I suspect such weighty arguments are rare, I do think they can be made in certain instances. For example, if all of the grocery stores in a given area refused to sell to someone, it would likely be a clear and wrongful harm to that individual (especially if, as in the relevant historical case, those being denied service had no recourse). A single store doing so, by contrast, is unlikely to hurt the person (or at least not in anything but a de minimis way).

I imagine that some would suggest that there is always a wrongful harm here in the form of a dignatarian harm—i.e., a harm to the individual’s dignity—perhaps especially if the refusal is based on the individual’s race, religion, or ideology. Pointing to a dignatarian harm, of course, does not suggest there are no other harms (causing someone to starve by refusing them service, for example, is an obvious harm; plausibly causing them to have to travel a great distance for service would as well). Here, though, I am assuming there are no other harms at issue—if there are (and they are not de minimis), interference may well be warranted. I am skeptical, though, of the likelihood of dignatarian harms being caused by a store owner refusing service to someone—at least absent structural issues. If 99 of 100 stores of the relevant type are willing to serve the individual, why would a single outlier cause a harm to the person’s dignity? Where I live, there are (I think) six chain grocery stores. It’s hard to believe that the owners or employees of the four I never enter have their dignity harmed by my withholding my utilizing of their businesses. If you think this is only because they are corporate owned, I will add that a bit further away there are several family owned grocery stores and none of them seem to have their dignity harmed by my choice either.

Some might suggest there is a difference between store owners and customers that is somehow relevant. Perhaps so. The only difference I can think of (actually, I didn’t think of it myself!) is that the customer is (or might be) engaging in the transaction to get something needed, while the storeowner is only getting money. The customer is thus supposedly at the mercy of the storeowner in a way that the reverse is not true. I do not think this difference is real. After all, the store owner is looking to get money from the transaction so that they can pay for the things they need. If all stores refuse to serve a particular person, that person will suffer; if everyone refuses to buy from a particular store, that store owner will suffer. Again, so long as the customer can go elsewhere for what they need, I think there is little cause for concern. (Again, if there are no competing storeowners willing or able to do business with the customer, the situation may be different.)

I am not sure what other relevant difference there might be between store owners and customers. Surely, if I intentionally and loudly boycott a particular store, broadcasting my complaints about the store—perhaps truthfully talking about the incompetent owner and workers—the store owner could plausibly have their dignity harmed. If, though, I merely refuse to buy from them without broadcasting my claims (perhaps add that my claims would be neither defamatory nor otherwise tortious), it is hard to believe my refusal to buy from them wrongly causes them a harm. (Indeed, it’s hard to take seriously the claim that I have done anything to them at all.). Merely refusing to sell to someone seems to be the same. No harm to dignity seems plausible. (Again, mass or universal refusal or legal inability to sell to members of a group—and mass or universal refusal or legal inability to buy from members of a group—may be different.)

I’ll end by being clear that I do not see any reason to deny that there are real dignatarian harms. In a theocratic society where women are denied the rights to vote, to own property, to work outside the home, etc, it seems entirely reasonable to think there is a wrongful setback to their interest in their own personal dignity. Such harms would plausibly be independent of physical, financial, or even psychological harms. These would be harms even to women who were happy in the society, well treated, and financially, physically, and psychologically secure. Similarly, as already indicated, if all storeowners were united—or forced—to withhold service to some group of individuals there would be plausible dignatarian harm. But if we are talking of an individual store owner refusing service to such a group, it seems implausible.

Thanks to Payden Alder for getting me thinking about this stuff again and to Jim Taggart, Connor Kianpour, and Andrew I. Cohen for comments on a draft. (Connor gave the possible objection about a difference between storeowners and customers.)

Current Events, Discourse, Education, Ethical Issues, Free Speech, Law & Legal Philosophy, Misc Academic Issues

Locke and Land Acknowledgements 

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The following is a guest post by Kyle Swan, Professor of Philosophy and Director of Center for Practical and Professional Ethics at CSU Sacramento.

Stuart Reges is suing his employer, the University of Washington, for violating his First Amendment speech rights. The University initiated an investigation into whether Reges violated its anti-harassment policy for publishing a land acknowledgement statement on his course syllabus. His read, 

“I acknowledge that by the labor theory of property the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington.” 

Reges is protesting the recommended acknowledgment circulated by the University. The protest is clearly protected speech. I hope Reges wins his suit decisively. 

But what about Reges’s statement? He appears to be serious. In a Quillette article he writes, 

“I am a Georgist, and according to the Georgist worldview, Native Americans have no special claim to any land, just like the rest of us. But since few are familiar with that economic ideology, I leaned instead on a principle described in John Locke’s Second Treatise on Government, now known as the labor theory of property or the ‘homestead principle.’ To the Georgist idea that land is owned in common by all living people, Locke added that by mixing one’s labor with the land, one encloses it from the shared property because people own the products of their labor. If, for example, you make the effort to grow corn on an acre of land, you come to own that acre of land, so long as there is still plenty of land left for others to use.” 

The labor theory Reges refers to is a theory of property acquisition. In its original state, the entire earth is given to us in common. Nobody owns stuff in the world. The question is, how can we remove things from the commons and make rightful claims to them that would allow us then to exclude others from using them? 

Locke provides some conditions. First, it has to be true that someone hasn’t already done that — the stuff has to not be already owned. Second, the person appropriating something from the commons has to do it in a way that improves it through their productive activity — gathering berries, hunting deer, growing vegetables, clearing trees — all kinds of activity counts. Finally, the way they do this has to leave enough and as good for others, so that no one would have reason to complain about the appropriation. 

Professor Reges’s acknowledgment is saying that Coastal Salish people weren’t ever in a position to claim ownership. They were never rightful owners. So when settlers came to the area in the late 1840s or whenever, he supposes these settlers were appropriating the land from the commons, rather than from a group of people. 

Professor Reges’s application of Locke’s theory is dubious. I’m a philosopher, not a historian, but it seems unlikely to me that there were no groups of native people engaged in productive activity in the relevant areas when settlers showed up. 

More importantly, though, if Reges is correct and there weren’t people there already with legitimate ownership claims, then the behavior of government authorities in the mid-19th C was very odd. Because what they were doing was negotiating treaties with the native peoples, including the Salish. Doing so suggests their recognition of legitimate claims made by these groups. Why were they making contracts to acquire land from these native peoples if they didn’t own the land? It seems incredible they would do this if they regarded the lands as unused, unoccupied, and unowned. So it looks like this was a transfer of land ownership rights, not an original appropriation of them. 

Now everything hangs on how these contracts were presented and executed. Were the negotiations above board? Were all the relevant people groups represented? Did they all sign? Were all the terms of the contract fulfilled? Again, I’m a philosopher, not a historian, but if not, if there were problems with the agreement, then there wasn’t a legitimate transfer of the Washington territories. 

If that’s right, then a different part of Locke’s theory applies, which you can find in a later chapter of the 2nd Treatise, Of Conquest. There Locke argues that an aggressor who “unjustly invades another man’s right can…never come to have a right over the conquered…. Should a robber break into my house, and with a dagger at my throat make me seal deeds to convey my estate to him, would this give him any title? Just such a title, by his sword, has an unjust conqueror, who forces me into submission. The injury and the crime is equal, whether committed by the wearer of a crown, or some petty villain. The title of the offender, and the number of his followers, make no difference in the offence, unless it be to aggravate it.” 

And so “the inhabitants of any country who are descended and derive a title to their estates from those who are subdued and had a government forced upon them against their free consents, retain a right to the possession of their ancestors….the first conqueror never having had a title to the land of that country, the people who are the descendants of, or claim under those who were forced to submit to the yoke of a government by constraint, have always a right to shake it off, and free themselves….If it be objected, This would cause endless trouble; I answer, no more than justice does.” 

Locke’s theory of acquisition has two parts. The first is a theory about how original appropriation would be legitimate. The answer has to do with labor and productive activity. But that part doesn’t seem to apply to this case, since it looks like the Salish already had an existing claim. The second part of the theory is about how acquisition by transfer would be legitimate. The answer here has to do with agreement, and everything depends on the quality of the agreement and how it was or wasn’t honored. But we see there’s more to the story. When there has been no agreement, no just transfer and only conquest, Locke says that people retain “the native right of their ancestors.” 

Locke has long been accused of providing intellectual and justificatory cover for the (mis)appropriation of Indigenous people’s land in America and around the world. But it seems like it’s been Locke’s views that have been misappropriated.

Discourse, Free Speech, Uncategorized

Interpretive Charity and Heated Debate

I wanted to add to the discussion my co-bloggers have started on discourse norms.

Consider the following sample dialogues

1)
A: “I think stricter gun regulations would fail to prevent either determined criminals or the seriously deranged from committing the sorts of horrible crimes that make people want those stricter laws, but they would violate the rights of law-abiding gun owners and possibly make them less safe.”

B: “I think you’re mistaken about that.  Just as criminal background checks make good sense, so would some sort of red-flag or mental health history screening.  Indeed, since we already use criminal background checks, we could easily combine the two, plus it would help if there weren’t easy ways to circumvent the background checks.”

2)
A: “ I think stricter gun regulations would fail to prevent either determined criminals or the seriously deranged from committing the sorts of horrible crimes that make people want those stricter laws, but they would violate the rights of law-abiding gun owners and possibly make them less safe.”

B*: “That’s outrageous.  You think guns are more important than kids’ lives?”

3)
A: “I think there’s no plausible rationale for tighter abortion restrictions.  Claiming that life begins at conception is a religious doctrine, so using it as the basis for law would violate church-state separation.  In many religions, personhood isn’t thought to obtain until at least the 2nd trimester.   In any case, there are all sorts of reasons a woman might seek to terminate a pregnancy, medical ones most obviously, but also psychological reasons, and I think the best public policy would be to leave it up to her.”

B: “I disagree.  I am not depending on any particular religious doctrine when I claim that human life begins at conception. It’s a developmental spectrum, there are no sharp dividing lines, so if we don’t respect the new life that the pregnancy represents as early as possible, it’s a slippery slope.  As to the reasons why women might want to terminate, sure, if there’s a legitimate medical rationale that the mother’s life is in jeopardy, I can see that, but I think a lot of what you’re calling psychological reasons could be addressed through counseling, spiritual or secular.”

4)
A: “I think there’s no plausible rationale for tighter abortion restrictions.  Claiming that life begins at conception is a religious doctrine, so using it as the basis for law would violate church-state separation.  In many religions, personhood isn’t thought to obtain until at least the 2nd trimester.   In any case, there are all sorts of reasons a woman might seek to terminate a pregnancy, medical ones most obviously, but also psychological reasons, and I think the best public policy would be to leave it up to her.”

B*: “That’s outrageous. You think it’s ok to murder babies to preserve some illusion of women’s autonomy?”

————————

You may have noticed that dialogues (1) and (3) read very differently than (2) and (4).   That’s because in (1) and (3), the B character is responding to the A character’s arguments with different arguments.   In (2) and (4), the B* character does not actually engage with A’s arguments at all, but goes right for “baby-killer.”   Regardless of your view on either abortion or gun control, you should be able to see that in (2) and (4), B* is not arguing in a rational way, whereas B is arguing rationally in (1) and (3).   Does A actually hold the position that B* alleges?  Almost certainly not.  This is commonly known as the “straw man” fallacy; in this case augmented by an emotional appeal.  We know this because in the other pair of dialogues, B is offering actual counter-arguments. 

Why does this matter?   Because when people argue about these things, they have two sorts of objectives.  One is changing the mind of the other person, or perhaps onlookers.  The other is changing public policy.   But neither of these goals will be served with arguments that do not engage their opponents.  It’s totally implausible that A will respond to B* with “oh goodness, I didn’t realize I was advocating baby-killing, I hereby change my position.”  What happens instead is the discussion goes nowhere.

Sometimes we just get angry at people who disagree with us, and we are bewildered that others don’t see things our way.  But we should resist the temptation to straw-man.  If you don’t have the emotional bandwidth to argue with people, you’re certainly not required to do so.  But if you do think it’s worth arguing about, then your objectives will be better served with interpretive charity.  What actually is the other person’s position, and why?  Why do they think your position is wrong?  Is there something that might be common ground?  Are you talking past each other?  Are you sure that your position is informed by facts and logic?  Do you have any talking points that might be misinformed?

Sometimes we never resolve disagreements on highly controversial issues.  But if you hope to get anywhere, there’s a right way and a wrong way to do it.

Current Events, Free Speech, Misc Academic Issues

Georgetown University Does Not Have a Speech and Expression Policy

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The following is a guest post by John Hasnas. Dr. Hasnas is a Professor of Ethics at Georgetown University’s McDonough School of Business and Professor of Law (by courtesy) at Georgetown Law Center.

In 2017, to great fanfare, Georgetown University adopted a speech and expression policy that states,

It is Georgetown University’s policy to provide all members of the University community, including faculty, students, and staff, the broadest possible latitude to speak, write, listen, challenge, and learn. . . . It is not the proper role of a university to insulate individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Deliberation or debate may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or ill conceived.

On January 26, 2021, the incoming Executive Director of Georgetown law’s Center for the Constitution, Ilya Shapiro, expressed his disapproval of President Biden’s decision to consider only African-American women for appointment to the Supreme Court by tweeting: “Objectively best pick for Biden is Sri Srinivasan, who is solid prog & v smart. Even has identity politics benefit of being first Asian (Indian) American. But alas doesn’t fit into latest intersectionality hierarchy so we’ll get lesser black woman.”

On January 27, the dean of Georgetown Law published a campus-wide e-mail in which he called the tweet “appalling” and “at odds with everything we stand for at Georgetown Law.” On January 31, the dean placed the director on “administrative leave, pending an investigation into whether he violated our policies and expectations on professional conduct, non-discrimination, and anti-harassment.” 

On June 2, the dean published a campus wide e-mail in which he stated that Mr. Shapiro’s “tweets could be reasonably understood, and were in fact understood by many, to disparage any Black woman the President might nominate.” He went on to explain that 

In considering how to address the impact of Mr. Shapiro’s tweets, I was guided by two overarching principles. The first is the Law Center’s dedication to speech and expression. Georgetown University’s Speech and Expression Policy provides that the “University is committed to free and open inquiry, deliberation and debate in all matters, and the untrammeled verbal and nonverbal expression of ideas.” The second and equally important principle was our dedication to building a culture of equity and inclusion (emphasis added).

He then pointed out that the speech and expression policy states that “[t]he freedom to debate and discuss the merits of competing ideas does not mean that individuals may say whatever they wish, wherever they wish.” He further noted that speech that violates the University’s Policy Statement on Harassment is prohibited and that the Speech and Expression Policy does not supersede professional conduct policies or HR policies. He omitted the next sentence that states, “But these are narrow exceptions to the general principle of freedom of expression, and it is vitally important that these exceptions not be used in a manner that is inconsistent with the University’s commitment to a free and open discussion of ideas.”

The dean concluded his e-mail by stating,

Georgetown Law is committed to preserving and protecting the right of free and open inquiry, deliberation, and debate. We have an equally compelling obligation to foster a campus community that is free from bias, and in which every member is treated with respect and courtesy. I am committed to continuing to strive toward both of these indispensable goals (emphasis added).

Apparently, Georgetown has equally compelling commitments to “free and open inquiry, deliberation, and debate” and “to foster a campus community that is free from bias, and in which every member is treated with respect and courtesy.” 

Combining these two commitments means that Georgetown’s policy is to provide all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn unless some members of the Georgetown community could reasonably understand what is being expressed as disparaging them or the administration finds the comments at odds with what Georgetown stands for. It means that Georgetown believes that it is not the proper role of a university to insulate individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive unless they offend some members of the Georgetown community. It means that members of the Georgetown community are free to express ideas that others find to be offensive, unwise, immoral, or ill conceived unless students or administrators deem them too offensive, unwise, immoral, or ill conceived to be permitted.

It means that Georgetown University does not have a speech and expression policy. 

Editors note: Yesterday, Ilya Shapiro resigned his position at Georgetown, claiming it would be a hostile work environment wherein he was set up to fail.
Current Events, Discourse, Ethical Issues, Free Speech, Misc Academic Issues, Social Criticism, Toleration

Congressional SnowFlakes

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I wasn’t going to write anything about this as it seemed too obvious to comment on, but I haven’t seen others do so—and it is worth noticing.

There has been, and continues to be, talk about college students and people on the left as “snow flakes” and weak/soft/thin-skinned, too easily hurt by speakers on campus. The extent to which college students take offense at comments may (or not) be greater than it was in the past. Last week, though, we saw Republican Congresspeople doing the same thing. See this.

Liz Cheney has been telling the truth about the 2020 election and (some of) the lies coming from Donald Trump and his sycophants. She has not, so far as I have seen, been particularly rude about it. She has simply pointed out that some people seem intent on enabling and spreading Trump’s lies. The response includes claims of being offended and “hurt.” (TN Rep. Chuck Fleishmann: “It hurt me very much.” A lobbyist: “what she’s said was offensive to me, and many others.”)

It is not unusual on college campuses to hear claims that speech can harm so badly that we should not only be concerned, but also set policies to prevent such. Speech codes were/are meant to prevent harm. This is the sort of concept creep—where we talk of things previously thought non-harmful as harmful—that I worried about in my Toleration and Freedom from Harm and that Frank Furedi worried about in his On Tolerance.

Furedi’s concern was with acceptance of a “transformation of distress into a condition of emotional injury” (106) that would be used to justify interference meant to silence discussions that might somehow endanger those offended (or those they pretend to protect). A standard response is that such people are too weak to hear (or have others hear) anything that might offend them, cause them to doubt themselves, or that simply might not put them in the best light. Cheney is clearly not putting most of those in her party in the best light and offending some to the point of “hurt.” One wonders if her detractors will try to pass some sort of congressional speech code.