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Thursday, June 28, 2018

Civility is the new unity

I criticized the demands last fall for "unity" in the face of various protests. The call for unity means speech that "divides"--which is to say all speech critical of the status quo or majority position--is divisive. And that is anathema to free speech.

The same can be said for recent calls for civility, to which Neil Buchanan responds at Dorf on Law, Vann Newkirk responds at The Atlantic, and Osita Nwanevu responds in Slate.  One problem is definitional. It is too easy too define criticism or protest, even measured criticism and protest, as uncivil. Another problem is New York Times v. Sullivan, "debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." That means debate and criticism of public official can, will, and should be uncivil, especially when it is the powerless attempting to be heard by the powerful who otherwise have no obligation or opportunity to listen or engage. A requirement of civility means a high-ranking public official can demand silence from those who serve her cheese or who stand near her in the restaurant, It effectively creates a right for public officials to be free from proximate speech that she deems unfriendly or uncomfortable--rather than averting her eyes or ears, she can demand civility, which means demanding silence.

Posted by Howard Wasserman on June 28, 2018 at 11:43 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink


I don't think "civility" is the issue. The problem is eliminating the line between public and private lives. It's not a problem if people sound off with harsh attacks on public forums or in public demonstrations. But harassing members of the opposition at every moment of their private lives is a different thing altogether. If you think that it's OK to verbally harass members of the administration when they are shopping in Whole Foods, or eating in a restaurant, or waiting at the bus stop to put their kids on the school bus, how would you feel if the favor were returned, and leftist protestors found themselves mobbed and harassed while conducting their own private lives? Because once you go down this road, there's no turning back and no one will be safe. I don't see how it doesn't end up with political violence.

Posted by: Douglas Levene | Jul 1, 2018 2:12:45 PM

James, thanks for your interesting comment. I'm not sure how deep our disagreement, if any, is. Of course I agree that words and culture matter; whether I buy the old adage completely or not, I'm happy to agree that the pen can be as mighty as the sword. Nor do I mean to denigrate at some wholesale level the sincerity or commitment of those expressing their views, online or elsewhere and in whatever political direction. Who could possibly make such a broad statement with confidence? Again, my somewhat more modest suggestion was that arguably uncivil statements, along the lines (to take an example from this week) of "they killed the wrong Kennedy; it should have been Anthony Kennedy, not JFK," may indeed cumulatively add up to big things and have a big influence, just as a book like Common Sense or Uncle Tom's Cabin can have a major political impact. But things like individual uncivil tweets rarely involve much by way of danger, sacrifice, or risk for the writer him or herself. Of course there are exceptions, and for the person who receives a death threat or has his or her address splashed all over the Internet it will not seem like a small exception. But most of us on social media write for many fewer people, most of whom already share our beliefs. The casualty rate for people condemning Justice Kennedy is still a good deal better than for, say, an RAF pilot. I'm not questioning the power of speech, civil or uncivil. I'm suggesting that there are equally powerful and influential forms of speech or action that don't need to involve incivility, and that can and sometimes do involve more sacrifice and commitment than merely throwing in an expletive or tossing someone out of a restaurant. I think this is my last go-round on the subject. Best wishes.

Posted by: Paul Horwitz | Jul 1, 2018 12:03:20 PM


I think there is an important difference between what I would call electoral politics and cultural politics. During the 1970s a favorite criticism of those involved in electoral politics on the left against those involved in cultural politics on the left was "those people don't want to take over the country, they want to take over the English Department." Yet I would argue that over the ensuing 30-50 year we have seen the downstream electoral ramifications of the taking over the English Departments because taking over the English Departments lead to taking over the Liberal Arts program which lead in many cases to taking over the entire universities and now we have many universities that are closely aligned with specific political agendas from Liberty University on the right to Harvard on the neoliberal Left.

"although it seems to me that WWII military service was a more credible signal of commitment and sacrifice than writing a really strongly worded tweet."

For the reason suggested above I strongly disagree. Who controls social media goes a long way to controlling the country. It is dubious whether Trump could have gotten elected if it weren't for his social media reach. Little things add up to big things, and even tough of the surface a tweet might not seem as dangerous as a bullet overt he long-run the pen is mightier than the sword.

Posted by: James | Jun 30, 2018 11:59:08 AM

Is the question what counts as civility or what constitutes a meaningful political action that requires some effort and sacrifice and does not require incivility to be effective? My point was only that generally avoiding incivility does not preclude serious political activism and that some instances Olof incivility have more to do with self-indulgence by members of the top 20 percent than with the powerless reaching for the only available tool against the crushing elite ruling class.

Posted by: Paul Horwitz | Jun 30, 2018 9:41:30 AM

Paul: I am not trying to be pedantic, I am genuinely curious because I think it is important (and contested) as to what we mean by incivility and civility. So:

A million people marching and calling someone an asshole?
Chanting something in a restaurant where a public official is eating, but without calling the person an asshole? (e.g., "Stop Separating Families")
Burning someone in effigy (not OK in a restaurant, obviously)

Posted by: Howard Wasserman | Jun 30, 2018 7:43:49 AM

Howard m, I appreciate your clarification. I rather think the other commenter didn’t take my point, which is that civil discourse doesn’t preclude many forms of forceful commitment to powerful social and political action. There’s nothing uncivil about a million people taking to the streets to march, or a high government official resigning in protest. Conversely, simply calling someone in a restaurant an asshole, or what have you, may have no useful result or a counter-productive one and involves little sacrifice. These days incivility is just as capable of being a safe and self-indulgent elite-class hobby as civility is to be a rhetorical tool of the powerful. If my reference to war offended you, so be it, although it seems to me that WWII military service was a more credible signal of commitment and sacrifice than writing a really strongly worded tweet.

Posted by: Paul Horwitz | Jun 29, 2018 4:22:23 PM

If intent matters, then words beyond the text become evidence of that intent. That words matter for one issue (intent) does not say anything about whether they matter for another (whether something is a tax or not).

Paul: I did not mean to suggest incivility is necessary, only that it is permissible. I also did not mean to suggest that anyone must accept or agree with an uncivil comment or action. My concern is the declaration of incivility as a conversation-stopper, that relieves anyone of responding to the merits.

Posted by: Howard Wasserman | Jun 29, 2018 1:04:43 PM

"Except that what a policymaking official says before, during, and after making policy is evidence of intent..."

Didn't Obama say the ACA wasn't a tax? If so, didn't that make it impossible for the Supreme Court to rule that it was a tax? And yet they did . . . because what a policymaking official says is completely irrelevant to what the text says. The text is the law, not what Obama might offhandily say, or Trump.

Posted by: Was it a tax? | Jun 29, 2018 12:52:15 PM

A significant part of the U.S. electorate seems to find it "uncivil" to ask someone to leave a restaurant because of their public actions or political views. Prof. Horowitz seems to suggest that it is "civil" to kill someone in an act of war, so long as you're careful to help ID them for the family.

I think that tells us pretty much all there is to know about the rhetorical value of civility.

Posted by: Anon Again | Jun 29, 2018 12:47:30 PM


"Except that what a policymaking official says before, during, and after making policy is evidence of intent..."

As a general matter this is true but the President is no ordinary "policy making official". The Founders rejected the title "Chief Executive" and went with "President" instead and that choice was not an arbitrarily one. The President doesn't serve as only or merely as a policy making official, he is the /President/ and also wears the hats of cheerleader, coach, commander in chief, and lots of other things too. Viewing Trump's remarks solely through the lens of "policy making" results in a too constrained view of the Presidency and produces a result that is too chilling of free speech for my tastes. The same type of chilling that flys under the rubric of "civility".

Posted by: James | Jun 29, 2018 12:15:22 PM

Except that what a policymaking official says before, during, and after making policy is evidence of intent and improper intent can render policy constitutionally invalid. The problem is not that Trump was uncivil. The problem is that he acted with discriminatory motives and government cannot do that.

Posted by: Howard Wasserman | Jun 29, 2018 11:03:00 AM

I don't know how to square Howard's post with Andrew's post directly below it. Perhaps Howard means to implicitly repudiate Andrew's post, I don't know. But intentionally or not Howard seems to have written the best possible response to Andrew and the response I would give as to why Trump vs Hawaii reached the correct conclusion.

Posted by: James | Jun 29, 2018 10:53:22 AM

“I’m happy to assume these particular arguments...” [And whatever other corrections or interpolations are required.]

Posted by: Paul Horwitz | Jun 29, 2018 9:17:42 AM

“[Sullivan says “debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.’ That means debate and criticism of public officials can, will, and should be uncivil....A requirement of civility...effectively creates a right for public officials to be free from proximate speech that she deems unfriendly or uncomfortable.”

Howard, I think you read things into Sullivan that are not there and read things that *are* there out of it. Sullivan does not say robust etc. speech must be vehement, caustic, and unpleasantly sharp (and not all these things are necessarily synonymous with incivility. It says robust political speech may include such speech and perhaps will inevitably sometimes do so. For multiple reasons the Court believes such speech, directed at public officials, must be protected, but it doesn’t say it must occur, not that uncivil speech is a fine and necessary thing, and I rather doubt all those Justices would have believed such a thing, let alone believed it to be true on the sorts of occasions that some people have argued should be greeted with uncivil conduct. Conversely, at least in the context of defamation, the Court *does* say public officials cannot have a right to be comfortable. (If a public official was harassed and chased out of, say, his mother’s funeral, on the other hand, do you think the Court would have hesitated much to uphold a conviction on a neutrally written and applied trespass, stalking, or nuisance law?)

I have not read all these pieces from start to finish. But blanket rejections of civility because of how it can be used or because of general assertions about power and its misuse strike me as rote, banal arguments lacking in serious insight and obtainable from the back of a book jacket. I’m these particular arguments are better than that, but I can’t say the same for many expressions of the same argument that I have seen in the usual places.

It must also be noted that civility doesn’t preclude serious action. Some WWII aces took careful note of the people they shot down and even landed, told the enemy the location if the pilot was still alive, or identified the slain pilot and made sure in a respectful fashion that his mates and family knew of his death rather than have them agonize about his unknown fate. And uncivil conduct can be a demonstrative but lazy and essentially self-serving substitute for more demanding political action. The nice thing about yelling at someone in a fine restaurant is that you are yourself in a fine restaurant, literally having your cake and eating it.

Posted by: Paul Horwitz | Jun 29, 2018 9:16:18 AM

Wasserman , it seems that you have ignored the other side of the equation , and it is simply ,an overwhelming discrimination . It is already crazy phenomenon all over the US . So , how would you reconcile them both ?? For an overwhelming free speech , must be balanced ( and the free speech is already as a matter of fact , balanced and restraint in the US . You can't petition for highly classified information for example , and obtain it , in the name of free speech of course ) . Otherwise , the whole fabric of the society , is deeply affected . One society becomes or rendered tribal one , divided to sections and subsections . Impartiality , anonymity , must be kept in the public domain. Doesn't make sense !!


Posted by: El roam | Jun 29, 2018 9:12:28 AM

I think it's important not to conflate two different things as I fear your post does.

1) Letting whoever is in power define what is civil and uncivil and castigate those who don't obey their definition of civility.

2) Actually adhering to a standard of civility in political disagreements and discussions.

There is no question that 1 is unacceptable and needs to be avoided. Correspondingly we need to be wary about any overly simplistic attempt to formulate rules for civility.

However, nothing about having a "uninhibited, robust, and wide-open" debate requires that one be an asshole and, indeed, usually such actions are counterproductive. This also doesn't mean we shouldn't judge others based on whether or not they treat others nicely and don't necessarily inflict suffering.

I mean it's true that notions of civility have been used in the past to silence protest and dissent. But the right answer is to identify those as inappropriate or unfair standards of civility not to discard the concept.

Posted by: Peter Gerdes | Jun 29, 2018 6:32:33 AM

Civility is not the absence of exercising one's freedom through things like constructive-criticism and peaceul-protest. Civility means not covering one's opponent's car in HIV-infected blood or not leaking a sextape of them online.

Can you imagine Jane Austen's editor returning her manuscript saying "I was going to suggest changes, but 'criticism is uncivil,' so I left your writing as an unorganized mess for posterity's sake."

Posted by: Ramosovich | Jun 29, 2018 12:57:29 AM

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