Wednesday, May 09, 2018

Prextual Arguments

by Sherry F. Colb

In my column for this week, I explore the inconsistency between the arguments in two conversations, both of which presented a Free Speech issue as well as competing concerns. In one conversation, the topic was a rape app, in which victims can post the name of the fraternity where they were assaulted. In the other conversation, the topic was a racist and anti-Semitic skit that some fraternity brothers performed. I conclude that even though the protection of Free Speech comes up in one of the conversations, what actually motivated the respective positions taken is an identification with presumptively beleaguered white males.

Shortly after learning of the two conversations described above, I read about a study that exposes this identification-cloaked-as-principle phenomenon. The context was racist speech and Free Speech. The study found that when people with racist attitudes considered a hypothetical scenario in which one person said something racist to another, the racists were more likely than the non-racists to believe that the racist speech was "Free Speech" and should be protected from penalties. But when the people with racist attitudes faced a scenario in which one person said something rude but unrelated to racism to another person, the racists were no longer especially interested in protecting the rude speech as Free Speech. The people with racist attitudes thus turned out not to be Free Speech libertarians. They just identified with the freedom to utter the racist speech with which they sympathized.

This finding, while perhaps not that surprising, is important. Humans pride themselves on being a rational species composed of individuals who make choices based on reason and principle. In reality, though, people regularly make choices based on fears, desires, and identifications that may not be entirely conscious or available to the decision-maker.

In this post, I want to talk about a few instances in which this phenomenon appears to be at work. The first (and perhaps easiest target when it comes to pretextual behavior) is the President of the United States. As we know, the President himself admitted, in an Access Hollywood tape, that he sexually assaulted women with impunity, because he is a celebrity. When he denied the truth of what he asserted as locker room talk, moreover, women came forward to confirm that he had done exactly what he bragged of having done.

Later, his Secretary of Education, Betsy deVos, revoked the Title IX Dear Colleague Letter that had made it easier for victims of sexual misconduct at universities to prevail in bringing a complaint against their assailants at a school proceeding. A number of schools and faculty had criticized the Dear Colleague Letter, which, among other things, provided that sexual assault victims should be able to prove their case by a preponderance of the evidence instead of having to meet a clear and convincing evidence standard. The deVos revocation meant that schools could return to demanding that rape victims prove their case by clear and convincing evidence, a standard that would leave more victims out in the cold.

Why did the President and why did so many professors, including law professors, reject the Dear Colleague Letter? For the President, the answer is obvious: he plainly wants to make it more difficult for sexual assault victims to get justice, because as an accused (and self-accused) sexual assailant himself, he identifies with the perpetrators. The issue is harder when we turn to the law professors who wrote in opposition. Some of them are honestly dedicated to providing due process to people accused of misdeeds, whether criminal or civil. In criminal and civil cases, they consistently side with the defendant. They favor the status quo, whether that entails freedom, holding onto one's money, or remaining in a university community despite the greater-than-even odds that one has raped another student there.

That description, however, does not attach to everyone who wrote in opposition to the Dear Colleague Letter. Many are committed to a proposition to which the President would likely subscribe: we must be especially skeptical about the words of a woman claiming that she was sexually assaulted. They might say that no, they simply want the same standard of proof to apply in sexual assault cases and to all other types of academic misconduct cases, clear and convincing evidence (in some universities, in any event). Two questions arise in response to this claim, however: First, why is it important to have a clear and convincing evidence standard for non-criminal conduct, when the applicable standard of proof in non-criminal cases in court is almost always preponderance of the evidence?; and second, why isn't the fact that so many people share the reluctance to believe a woman who brings a rape accusation reason enough to lower the standard of proof relative to that applicable in other cases, to level a playing field that disadvantages rape accusers?

It is worth pausing here to acknowledge that our law has a history of discrediting rape victims' testimony. Sir Matthew Hale, a seventeenth century English jurist, spoke of how difficult it is to defend against a rape charge, even when the accused is completely innocent. Based on this thinking, rape cases in criminal court long demanded a special instruction from the judge to the jurors telling them that they should be especially skeptical in scrutinizing a rape accusation. Rape cases without additional witnesses or corroboration often went nowhere. And a defense lawyer could attack a rape victim's credibility by introducing evidence of her prior consensual sexual history, however irrelevant to whether she was lying when she said that this time, she was raped. So when people refuse to believe rape victims, they are following a well-worn path in the American system.

When you ask someone who expresses outrage at how "easy" it supposedly is to prove sexual assault under a preponderance standard, why they are so incensed, they say that it is outrageous to have a low standard in a criminal case. It is not a criminal case, you remind them, because no one goes to prison. Ah, they respond, but the person's life is practically over with a finding like that over his head. That is interesting, because if a victim brought a civil lawsuit in court and prevailed against her rapist, the standard would have been preponderance as well, and the rape label would be just as stigmatizing there. The difference is that instead of having to pay some amount of money, the accused found responsible at school must leave the school for some period of time (or forever).

The position that the Dear Colleague Letter is wrong--or at least wrong insofar as it requires a preponderance standard of proof--is thus potentially principled. In the same way, the view that hate speech should be protected by the free speech guarantee may rest on a sincere commitment to freedom of expression. But in at least some cases, the positions here can be best understood as a reflection of a person's identification with those who stand to gain or lose in the particular battles, just as emerged in the racism and free speech study I mentioned above. People cite (and may even honestly believe they are driven by) principle, but they act on the ability to see themselves in the shoes of some but not others.

Another area in which people invoke principles but often act from self-interest and unprincipled desire concerns animal rights and veganism. Though people can and do legitimately raise questions that they would like to see answered, there are many whose goal is to try to justify their own consumption and exploitation of animals. Common themes are: animals are not rational, farm(ed) animals were created for the purpose of being used, and we cannot really know when animals suffer or whether they are even capable of suffering.

Each of these questions calls for a lengthy answer, and I have offered some answers in my book Mind If I Order the Cheeseburger? And Other Questions People Ask Vegans. In the briefest terms, though, animals actually are quite rational, many humans are incapable of rationality and nonetheless have a right not to be slaughtered or used as a resource (because being rational is irrelevant to being entitled to moral consideration), creating a living being does not entitle the creator to slaughter or do other violence to that living being but actually obligates the creator to ensure that the creature is protected from such violence--violence which can be said to include the creation of beings whose bodies match up better with human wants than with the wellbeing of the creatures, and we know that other animals suffer in the same way that we know that other humans do--they cry out, they pull away, and the chemical and anatomical basis for suffering mirrors our own and engages in circumstances in which behavioral responses in us and other animals evidence suffering. I could say much more than this, but my goal here was simply to lay out the most basic response to a few of the things people say when resisting the argument that we should not consume animals, their parts, and their secretions, including dairy cheese, eggs, wool, cashmere, and leather.

The affirmative reason to be vegan is that it shows respect for the sentient creatures who share this planet with humans. Holding animals captive, taking their children away from them, inducing lactation in them, breeding them, and slaughtering them all show no respect for them. Long before I became vegan, I had an uneasy feeling about meat (of the red-blooded variety), partly because I had been taught the irrational idea that fishes are somehow inferior to warmblooded animals, and I had no idea that the dairy and egg industries involved cruelty and slaughter, believing the common fairy tale that these animals peacefully make these products without being hurt or eventually slaughtered like the "meat" animals are. So long as I was not vegan, I clung to the nonsensical beliefs that people routinely offer up in defense of consuming animals (when they are even asked to defend it), including the firm belief that the animals were "benefiting" in some way from being used on farms, because the farmer protected them from predators. I never absorbed the fact that the human is the most voracious predator in existence, because he ultimately takes the life of every animal on the farm. And humans are not even designed to be predators, despite our (not at all) impressive canines.

I'm not sure why I stopped resisting the facts about what happens to animals and what animals are capable of. Maybe it was when I was reading one of the many books about an unusual relationship between a human and a nonhuman, and the book, Next of Kin, suddenly challenged the religion-like commitment our society has to lying about the animals we consume and asserting, mantra-like, that the animal farm is a legitimate institution rather than a death row for innocent creatures. Though the book was about a chimp learning to speak like humans, it introduced me to the idea that I might not be entitled to take things from animals, just because I could and just because humans had done so for a long time. Although reading about how Washoe learned to speak was fascinating, the author--Roger Fouts--taught me to question whether it was indeed acceptable for scientists to kidnap animals, teach them skills for which they have no use, and then turn them over to other scientists who will conduct biomedical experiments on them.

Earlier, I had read many books about relationships between humans and animals, like All Creatures Great and Small, that proceeded on the undefended assumption that it is legitimate to use animals and slaughter them to meet our desires.  The book might be about the heartwarming relationship between a human and an animal or many animals, but we are given every reason to remain complacent about what we ultimately do to those animals. It was always comforting for me, as an animal-consumer, to read that the author of a wise book about animals would also, without acknowledging a contradiction, consume animals or support their consumption. That meant I could purport to love animals (or to oppose torture and unjustified killings, for that matter) without having to stop doing what I was in the habit of doing at every meal.

People have supposed that I came to embrace veganism because I just didn't like animal products that much, just as they embrace the consumption of animal products, because they do like such foods. But it is not true. I loved eating eggs over easy, prime rib, medium rare steak, broiled and fried chicken, smoked turkey, duck, smoked salmon, smoked whitefish, broiled bluefish with butter, cheese, and more. Fortunately (or perhaps unfortunately), there are plenty of vegan prepared foods that taste like what I used to enjoy, and there are also unprocessed vegan foods that are delicious in their own right. I resisted the moral implications of facts (as opposed to the fictional nonsense in which I had been drenched, holding that animals live in the moment, cannot feel, cannot think, do not mind being slaughtered, etc.) about animals. And then I stopped. But it was much easier to do what most people do, which is to (a) not think about the morality of consuming animal products or (b) think about it and conclude, based on lies about animals and lies about slaughterhouses, that it is something other than the atrocity that it is. It is sometimes the people most praised for their intellect who are least willing to reconsider the lies they have swallowed, though they confidently make baseless assertions that purport to be well-reasoned.

And yet people do change sometimes. People who thought they liked free speech because they believed in liberty of expression come to realize that they actually only liked the speech of those with whom they could identify or whose message appealed to them. Having realized this, some of those people became truly committed to everyone's freedom of expression, including those with messages they found discomfiting or threatening. Others became more sensitive to the objections that people on the other side of various issues had to particular types of speech, coming to understand that their willingness to censor some kinds of speech should extend to other kinds of speech that inflict harm on others about whom they may not much care.

People also become vegan, and some of those people are individuals who made every argument in the book for why animals exist for us to exploit and why the pervasive lies about animals and about farms are worthy of belief. One day, they looked at the facts, they chose the red pill (of The Matrix, not of the angry white men's movement), and they stop hurting our fellow earthlings, capable of suffering, of feeling good, of thinking, and more entitled to live and breathe than any human with alternatives is entitled to cut their throats, beat them to death, or otherwise torture and slaughter them.

As attorneys, we know that finding an argument to match with our desired course of conduct is routine. A client says, "I want to do this, so tell me how it is legal to do this" or "I did this, so assemble an argument for how it was lawful to do this." We do not really question the practice of trying our hardest to make a case for doing what the client wants to do or to justify doing. There are limits, however, in the law. If your client tells you to make a case for something he wants to do, and what he wants to do is plainly against the law, you will deliver the bad news to him (or perhaps you won't). And if your client tells you he has done something that is plainly criminal, you will recommend that he choose not to take the witness stand. In life, there are few limits. If you want to lie to yourself and to others, you can do that, and no one can stop you. This means that for truth to make it into our discourse, we have to be willing to listen to people who disagree with us, even if it can be unpleasant.


Asher Steinberg said...

A lot of tendentious arguments here, but I guess the one small-bore point I'd make is that, while I'm not at all sure what the standard of proof should be in academic misconduct proceedings, the costs of being expelled from a college or graduate school for rape or sexual assault seem to me to vastly outstrip the costs of a civil monetary judgment for those things. There may be similar reputational costs, though such civil suits rarely go to trial, but an expulsion for rape makes it difficult for the student expelled to get an education anywhere else, and thus to get a good job. Just in dollars alone, the diminution in lifetime earnings the expelled suffer will usually far exceed the amount of a hypothetical judgment.

Joe said...
This comment has been removed by the author.
Joe said...

"Seem to me" ... "tendentious" ... ymmv.

One thing that is sometimes involved -- and I'm not a big fan -- in civil judgments is some sort of non-disclosure requirement. Assuming, usual caveats about that, it is disclosed, it is unclear to me how "vastly outstrip" things will be if a student is not expelled (as Prof. Colb said, not always permanently and/or unable to go elsewhere) but obtains a civil judgment that doesn't merely provide money but a legal (as compared to "you know how liberal colleges these days are") judgment that someone is guilty of sexual assault.

How much will going to one college over the other, all things being equal, result in less lifetime earning? And, really, the person is not going to have a mark of Cain that makes them for all time be unable to go to college. This is especially the case if we are not talking Harvard or some truly elite law school. If some mid-level law school, e.g., expels someone, we are saying -- sounds "tendentious" -- that no other law school, especially perhaps a conservative one dubious of the rules here -- will accept them?

The concern for due process is appropriate, since expulsion from school does matter, but it is not lacking under this scenario. As to all the rest, well, there is a lot there. So, I can see why someone merely will baldly say the argument is full with dubious arguments. Saves time.

Sherry F. Colb said...

Joe is very wise and well-informed. Always has thoughtful comments, much appreciated.

Shag from Brookline said...

Asher's "cost/benefit analysis" seems to suggest that the alleged rapist may be the victim (financially) if expelled from college as compared to a civil action against the alleged rapist. Should the alleged rapist have the choice?


The closing paragraph of this post focuses upon lawyers and their role regarding truth. I've been at this since 1954, when I became aware that truth in a philosophical sense was a weak quiver for lawyers. Evidence is not necessarily indicative of truth. Some lawyers serve as gatekeepers, but that may reduce legal fees. Perhaps we are in a "Second Roy Cohn Age" for some in the legal profession. But I knew of "bagmen" back here in the Boston area in the early years of my practice. They have not been an endangered legal specie. There was an admission by Trump of this during his campaign behind his "Only I can fix it." Consider what Trump's "fixer" has done post-Stormy Daniels with his "Essential Consultansts LLC."

Shag from Brookline said...

Further with respect to my 8:25 AM comment on lawyers and their role regarding truth, check out the NYTimes article "How Michael Cohen, Denied Job in White House, Was Seen as Its Gatekeeper" by multiple reporters. One does not need much imagination in reading the article to consider that lawyers for various businesses may have been involved in their decisions to go with Cohen's "Essential Consultants LLC." And consider the "strategic alliance" that the major international law firm Squire Patton Boggs entered into with Cohen described in the article. Query: To what extent were White House officials aware of Cohen as "Gatekeeper"?

Joe said...

"legal specie"

Typo or pun? You decide.

Shag from Brookline said...

Coin of the realm is usually involved. Original intent: "Lawyers serving as 'bagmen,' 'fixers,' are not an endangered specie." Some might call such "bagmen," "fixers" an "illegal specie." But let's not get into a debate on "originalism," "living constitutionalism" and typos. Consider that Cohn (Roy) of Trump's formative business years morphed decades later into Cohen (Michael) of today. Should Trump get an "e" for effort?

Bob Hockett said...

Great stuff as always, Sherry - thanks so much. Your observations and recollections here lead me to note and then wonder about something: What I note is how often the 'change of heart' on some matter does indeed feel, metaphorically speaking, like a 'change of heart' as distinguished from a mere 'change of head' - or rather, like a change of hear that then changes the head. In other words, the change seems often to strike one as a sort of epiphany or 'Gestalt switch,' which then leads one to change her thinking in keeping with that shift. One such epiphany memorably captured in literature is the protagonist's sudden recognition, at the end of Joyce's story 'The Dead,' that his spouse has a rich past and interior life quite distinct from her present day home life as his appendage. Another such, this one of my own and apposite here, is how it suddenly just hit as if 'from out of the blue' when I was a teenager that there is something deeply, deeply obscene about in effect telling a non-human animal that you have a better use for its thigh than it has, and then eating it. These sorts of things seem to happen to us all of the time, and we seem always to be tempted to refer to them as 'awakenings' or the like. It is as if one suddenly were seeing something for the first time, even though it has been lying there 'in plain sight' all along.

OK, so that's the observation. Now for the wondering: I wonder to what extent these epiphanies are in effect the culmination of spoken or written observations or arguments that we have heard before them, which then gestate in the back of the mind for some period before finally being fully 'birthed' or 'born' in the moment of epiphany. At first it is tempting to think these events are somehow independent of arguments one has heard, for they seem to overwhelm consciousness totally and at an instant, rather then figuring as conclusions reached at the end of some course of internal 'reasoning.' On the other hand, the epiphanies themselves often seem to come in a worded form, or at the very least to bear a sort of structure onto which words readily map. In the case of my teenaged vegetarian epiphany, for example, the form taken was initially itself that of a word. A woman in the school cafeteria slapped a piece of ham onto my lunchroom plate and instantly I felt revolted as the word 'presumptuous' rang in my head. It just sort of instantly hit me just how overwhelmingly *presumptuous* it was of us simply to take animals' muscle tissue from them for ourselves. The fact that this 'revelation' came in the form of a word, rather than just in the form of a feeling of horror upon actually seeing a slaughterhouse for the first time (which I confess I have never had the stomach to go see), suggests that the epiphany itself bore a kind of already-conceptualized or grammatical form, meaning in turn, I suppose, that it was the product of rationative or deliberative processes that had already been at work in the mind. And if that is the case, then perhaps argumentative seeds had been sewn long ago and *those* are what actually were springing into full bloom when that 'Gestalt switch' finally suddenly occurred. But then, I don't recall ever having heard or encountered an *argument* for animal rights or vegetarianism before that fateful day, so maybe the epiphany had not argumentative source as such, but simply came to the mind in worded form because I, like most humans, I suppose, am a word-structured thing... (continued) ...

Bob Hockett said...

... (continued from previous comment space) ...

Anyway, as speculative as all of that might ring, I wonder about this for a very practical reason. For the reason I'm thinking about this is that I'd like very much to sow seeds of the kind that flower into sudden moments of recognition like that recorded in the Joyce story and those many moments that have hit me over the years. These moments feel like a great moral blessing, and what ever we can do to make more of them happen for more people, I'd think, the better. I guess the trick is to do the sowing in a way that leaves viable seeds on the one hand without eliciting people's ego-protective 'defense mechanisms' on the other hand. And I guess also that the right mix of head-on confrontation and 'indirect communication' a la Kierkegaard varies from interlocutor to interlocutor. In any event, thanks again for the great post!