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Monday, April 20, 2009

That Feeling, Revisited

I appreciated the many thoughtful comments on my earlier post regarding the CoOp symposium, and the comments on Orin's excerpt from my post on CoOp.  I assume Dan Solove's post yesterday regarding CoOp's comment practices is either coincidentally timed or that the comment policy during the symposium, which I was reacting to, is part of a larger ongoing conversation at CoOp about these issues.  Either way, the whole conversation was very interesting.  I'd like to offer a few closing thoughts, partly in response to some of my commenters and partly in response to later posts.  

One thing I want to say up-front is that, of course, none of my reactions to the symposium were personality-driven.  Nor do I have any interest in telling other blogs what they should do.  I simply found the whole complex of issues very interesting, and saw no reason why I shouldn't write about it, even critically.  At times, legal bloggers will suggest, gently or otherwise, in "confidential" back channel communications that one ought not criticize one's fellow law-bloggers in public.  The reasons for this range from professional courtesy, to politeness, to the occasional veiled threat of professional consequences.  These arguments strike me as unpersuasive, and in some cases counter-productive; I assume that any half-way virtuous scholar, if she is told not to write about something, will put that topic at the top of her agenda.  I am not saying any of this applies here.  I am saying that I thought it was worth writing about the symposium, and its relationship to the comment policies being practiced there, and saw no reason why I couldn't validly do so.  That my post, and Orin's, elicited such interesting comments rather confirms for me that it was an entirely legitimate thing to write about.  Bloggers, like all writers, should write sensitively and fairly, but they shouldn't consider other blogs off-limits.

That said, here are some thoughts.  
First, Frank Pasquale asks in the comments to my post whether, given my writing on institutional autonomy and the First Amendment, I agree that "the freedom to exclude/not have comments . . . trump[s] the right of others to participate/comment."  I do.  I don't think there is a "right" to participate in or comment on others' blogs.  In keeping with my views on institutional diversity, moreover, I think there is room for a variety of comment policies, from excluding all comments to including all to the current CoOp position, which allows comments generally but warns against trolls, invective, etc.  At the same time, I've said two other things that are relevant here.  First, I think that although the courts may not be able to undermine institutional autonomy, those institutions are still subject to informal moral and/or professional suasion, from within and without the institution.  Churches, for instance, might be entitled to immunity from certain kinds of employment suits, but that does not mean that the church's members, and the public, can't criticize them for their conduct in those cases.  In that sense, although blogs are free to shape their own comment policies, those policies are also legitimate subjects of discussion and critique, both internal and external.  Second, as I discuss in this paper, it is productive to think about the ways in which blogs, as an institution, function, and in particular the ways in which their evolving, emerging norms may differ from methods of self-regulation for other media, such as newspapers.  We don't generally have the same filtering layers -- reporters, editors, etc. -- as newspapers; what we do have is a fairly well-established norm of error-correction and dialogue through comments and linking.  That norm is, as I say, evolving, and still controverted.  But I think it is by and large a useful one, and part of the point of my post was to observe that, in my opinion at least, the CoOp symposium posts that followed this norm were stronger, more responsive, and less driven by argument by fiat than the ones that didn't.  Others may, of course, disagree.  And I should emphasize that such a view is entirely consistent with the comments policy Dan Solove posted yesterday, depending perhaps on how it is administered.

Second, I commend to readers of the symposium the somewhat late post at CoOp by David Post.  David writes, with respect to some of the symposium posts, of his surprise that "the values of free expression seem to have so little purchase within this community of intelligent, thoughtful, and reasonable people. . . . Reading the various comments, one gets an impression of a First Amendment that is more, but not much more, than a nuisance standing in the way of progressive social legislation."  I share this impression, which to me is reinforced by a commenter on his post, who disdains the "libertarian fantasy of the First Amendment" and asserts (correctly or not) about Danielle's article that a counter-speech remedy to disturbing or offensive speech, which is what the commenter is referring to when he uses the word "fantasy," is "the last thing . . . she would support."  All of this reminds me of the free speech battles of the 1990s, in which writers assumed that any champion of the First Amendment was blind to the costs of a free speech regime, told a dramatic narrative about those costs and demanded regulation to address them, and then discounted any free speech arguments to the contrary as fantastic, and their opponents as tools of the extant regime.  These were the discussions in which liberty was endlessly pitted against equality.  They were unproductive discussions, in my view.  I would suggest that we ought not revive them; I would also suggest that, to the extent that some of the posts in the symposium did echo this approach, this suggests that, maybe, not much is added to the ongoing discussion on this issue by adding the words "cyber" or "civil rights."  I don't want to caricature the posts; most of them at least acknowledged speech values, and sometimes much more than that, although a number of them did treat First Amendment arguments with a certain amount of disdain.  I simply want to lend my voice to David Post's in suggesting that perhaps those competing values were not given a full enough treatment by some posters, and that it is unproductive simply to assert that equality trumps liberty.

Finally, my sense throughout was that there was a relationship between the comment policy and the substance of the arguments.  I've already written about that and won't reprise it here.  Let me instead follow that same argument to suggest some of the potential weaknesses of the argument, which was voiced by several posters and commenters, that the contribution of talking in terms of "civil rights" is its expressive value.  I don't oppose expressivist arguments as such, but I think the way these arguments were made in the symposium tends to suggest a problem with those arguments.  What expressive value a law has is entirely contestable, and those questions can't be resolved except through debate; one cannot simply assert that some law has an expressive value, defined in a particular way.  Thus, asserting the expressive value of a law simply shifts the normative debate to a different level; it doesn't resolve it, and the discussion is no more likely to be productive because it is conducted at the meta-level of expressivism.  It seems to me that, consciously or not, this was one way in which the no-comment policy fed into the substance; if one wants a law to have an expressive value, one may want to assert that it does loudly enough to make it so, and in those cases the writer may not want to brook opposition by those who think a law has a different expressive value or none at all.  To the extent that law's expressive value is constructed by its audience, those who argue in favor of a particular expressive value may want to act as if that expressive value is uncontestable, and thus won't want commenters suggesting otherwise, or will want to treat their opponents as being fundamentally wrong or misguided.  I don't think that approach can or should succeed; and again, because I think the expressive values of a law are contestable, I'm not sure whether simply asserting that something is a "civil rights" issue resolves any of the underlying debates.

Again, I thought the symposium was well worth reading, comments or no; and none of this is directed personally at CoOp or any of the posters.  But I do think that the form of the symposium intersected in interesting ways with its substance, and that these intersections suggest questions that some of the symposiasts might want to consider further.  Comments, as always, are welcome....     

Posted by Paul Horwitz on April 20, 2009 at 10:39 AM in Paul Horwitz | Permalink


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I appreciate Dan's comment, and would only observe that our common ground is much broader than our differences.

Posted by: Paul Horwitz | Apr 20, 2009 4:04:34 PM

As long as we're debating blog etiquette, my view is that in a blog with co-bloggers, any post that exceeds more than about half a screen should use the "more" feature, even if the writing in the post is as delightful as Paul's.

Posted by: BDG | Apr 20, 2009 2:51:39 PM

Regarding your comments about law professor bloggers not wanting criticizing other law professor bloggers, I have no problem with strong disagreement. I welcome vigorous disagreement, and I think many do as well. What I find particularly unproductive are commenters who make rude and insulting remarks, who believe that everybody who disagrees with them is stupid or fascist or malevolent. I love a vigorous debate, and I've written many blog posts and articles strongly criticizing others and have had many strong criticisms lodged at me. But in all these exchanges, I've tried to be civil and respectful. Those whom I've debated with, in the blogosphere and in legal scholarship, such as Orin Kerr, Bill Stuntz, Richard Posner, Lynn LoPucki, and many others, have been immensely respectful despite our disagreements. And our debates, sans snarkiness and venom, have been productive and vigorous.

Unfortunately, many commenters seem to think that there are only two modes of discourse: (1) totally fawning or (2) rude and snarky. They spat nasty insulting comments on posts and then whine when they're ignored or whenever there's a restriction on their ability to comment, decrying that the blogger is an enemy of free speech and can't tolerate disagreement. I don't believe engaging these people is particularly productive. And I don't think that blog posts with their comments are better -- such commenters often stifle debate and discussion, scaring away all but those who want to rant.

One of the unfortunate problems with the symposium was that a few of commenters who came in to defend the First Amendment were especially shrill and rude. This didn't lead to a particularly thoughtful debate or discussion in my view -- just a lot of nasty ranting. Now, had you or others joined into the First Amendment discussion, making arguments in a more civil manner, the debate might have become more productive. I have moderate views on the First Amendment, and I often tend to take middle-of-the-road positions on such issues. But when the discussion has become a shouting match, I just don't want to waste my time trying to enter the debate. I really don't want to try to debate people who are raving one way or the other, as I often find that they're not interested in dialogue -- they want to sound off and vent. To me, such ranting isn't worth all that much, even if it advances certain positions I might even agree with. I've really had my fill of rants and shouts, which fills the radio and TV airwaves as well as the blogosphere. Call me elitist or too stuck in the ivory tower, but when comments devolve into such nasty diatribes, I don't think they're contributing to the debate or discussion. I see them as noise in an already all-too-noisy world.

I'm all for a good vigorous debate, and I think that's what you're defending in this post, but I don't believe that many of the comments to blog posts here and at CoOp are in that spirit and are worthy of the rather romantic defense you've made.

This whole discussion makes me feel like an old curmudgeon defending manners. I cling to a perhaps outmoded belief in thoughtful reasoned discourse, with people disagreeing yet treating each other with respect. How old fashioned of me! Maybe I should join the club -- "Paul, you're an idiot! Your views are moronic! Despite the fact you allow me to comment here, your entire blog is anti-free speech and you and all your co-bloggers are just dumb. [Insert crass generalization about law professors here.] Don't you dare delete or ignore me, or else you are close-minded and not willing to engage with those who disagree with you. So there, you buffoon!"

Posted by: Daniel J. Solove | Apr 20, 2009 2:35:16 PM

Or, the MOJ practice might just suggest a (lazy) unwillingness to do the requisite monitoring of comments. =-)

Posted by: Rick Garnett | Apr 20, 2009 2:04:18 PM

Rick, I appreciate it. Again, I'm not suggesting any mandatory comment policy. I assume that one of the ways MoJ responds to the lack of comments is to make sure its posters have a diversity of views, and indeed this has itself been the subject of impassioned discussion on the blog, as you know. I always feel a tinge of regret at the lack of comments on MoJ, because so many of its posts are so interesting and I often want to respond to them. I understand why you made the choice you did, and would point out to something you're well aware of, which is that many MoJ posts reprint private responses that you receive from readers, so that you effectively make it a point to include at least some comments. So I'm not pushing for some absolute norm or demanding that MoJ post comments; I think the fact that y'all regularly discuss this issue, though, suggests some internal unease rather than anything that I have forced on you. I can live with my unease, and your unease at my unease, all of which suggest that this is the kind of issue that's worth assessing and reassessing on an ongoing basis.

Posted by: Paul Horwitz | Apr 20, 2009 2:02:30 PM

Paul, this is (as per usual) a thoughtful and stimulating post. I am feeling, I admit, a bit uneasy about *your* unease, though, because I'm quite aware that I'm a founder/blogger at Mirror of Justice, which does not have comments (though we discuss regularly whether or not we should).

Posted by: Rick Garnett | Apr 20, 2009 1:43:40 PM

Orin, I agree that the relationship is not direct, although I think there arguably is one (although not necessarily as a matter of intent!). Point absolutely well-taken re Dan's observation that a number of posts did allow comments, and thanks too to Dan for that point; I also think the point is well-taken that the no-comment nature of a number of the opening sallies in the symposium may have contributed either to the tone or to my "uneasy feeling."

Posted by: Paul Horwitz | Apr 20, 2009 1:25:00 PM


I agree with much of your take here, although I'm not sure I agree with your point about the relationship between the expressive value of the law and comment policies. First, my guess is that the expressive value of the law is something most people intuit rather than reason through: Either they feel it or they don't, and argument probably isn't likely to change their views very much. Given that, I don't think it was odd or inconsistent not to open comments on posts that made points about the expressive value of the law. Second, Dan Solove make the nice point in comment threads that it was actually only a relatively small percentage of comments that had comments closed (even if that group was mostly posts in the beginning, and therefore may have had an outsized role in setting the tone of the symposium.)

Posted by: Orin Kerr | Apr 20, 2009 12:23:05 PM

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