In a decision with potentially large ramifications, New York Federal Judge LaShann DeArcy Hall won't dismiss a libel suit against "Shitty Media Men" creator Moira Donegan.
Explaining, the judge says it is possible that Donegan created the entry herself. The judge believes that Elliott should be able to explore whether the entry was fabricated. Accordingly, discovery proceeds, which will now put pressure on Google to respond to broad subpoena demands. The next motion stage could feature a high-stakes one about the reaches of CDA 230.
The Language of No Compromise
It’s not often that I come across a book that blows me away in terms of readability and freshness: most have a few good points here and there, leaving me, the reader, curious as to what prompted reviewers to call it a ‘tour de force…’ or describe it as ‘simply a masterpiece.’ The reviews for the following book, however, were modest—the irony was not lost on me when I thought to myself upon finishing, ‘this is simply a masterpiece.’
Rights Talk: The Impoverishment of Political Discourse by Mary Ann Glendon is an interesting little book—indeed, for a book about such a monumental subject as rights it is comparably small. Perhaps because Glendon goes to work right away and wastes no time with an introduction telling the reader what is going to be argued later at greater length; a style in vogue with academia and journals. Concerning our talk about rights in this country, she begins by claiming that our brand of rights is “set apart from rights discourse in other liberal democracies by its starkness and simplicity, its prodigality in bestowing the rights label, its legalistic character, its exaggerated absoluteness, its hyper individualism, its insularity, and its silence with respect to personal, civic, and collective responsibilities.”
“Collective responsibility.” Nine syllables that some will only ever hear as four: “socialism.” That’s precisely Glendon’s point. Mere words block us from having fruitful conversations about important and complex issues. It’s no surprise, then, that the use of the phrase “collective responsibility” can both catapult a progressive politician to the fore, while at the same time subject them to such disingenuous caricatures from right-leaning folks in the form of memes about dictators and tyrants. (Though it cuts both ways.) Glendon’s point is that the political landscape is gray, murky, and opaque, but we only ever talk about it as if it was simple.
A more collective attitude seems perfectly coherent and more than necessary as an addendum to our insistence on only talking about rights. Our individual rights are but one half in what Glendon calls our “democratic equation.” The other half—talk of collective or civic responsibility—is all but absent from our rhetoric due to our “near-aphasia” concerning its role.
Characterizing our political discourse—if discourse is the proper term anymore—as impoverished is one thing: it doesn’t take a Stephen Hawking grade intelligence to see that our interactions in the political arena are impoverished, to say nothing of their Hobbesian nature: hostile, short, and usually cruel. Daddy hasn’t let Mommy a word in edgewise concerning the Second Amendment—it’s there, it’s clear, don’t touch it. Boiling this impoverishment down to an evasion of responsibility is a much more interesting observation.
Interesting and mysterious observations often need more justification. I have long railed on about how we need a heavier dose—perhaps a lethal dose—of civility in our conversations, but Glendon takes a different tack. It’s not necessarily civility, but rather the problem is inextricably bound to our historical situation: to be frank, our country’s history, narrative, and founding documents seem to cause such radical fracture and thus such brief and simple political conversations. As is hammered on again and again throughout, Glendon doesn’t push any overt policy or platform, so in a certain breath-of-fresh-air sense, the book isn’t overly politicized. She similarly doesn’t call for a letter-changing construal of our actual documents. Rather, she hopes for a change in our talk and rhetoric about politics in general—a simple shift in how we frame the conversation, she thinks, can mean a world of difference (although her request might be harder in practice).
Quite a sigh for folks who think that how you say something is just as, if not more, important as what you’re saying. The latter point is something that should sit relatively easy with all along the political spectrum, though I realize it may be harder in reality. However, advice and suggestions always sit well with most… that is until the opportunity comes to implement said advice.
Glendon is a specialist in comparative law, so she’s well-suited to observe that rhetoric in the United States is highly legalistic as compared to other nations. “There is no more telling indicator of the extent to which legal notions have penetrated both popular and political discourse,” she says, “than our increasing tendency to speak of what is most important to us in terms of rights, and to frame nearly every social controversy as a clash of rights.” She goes on to say that “the time honored understanding that difficult and controversial issues should be decided by the people through their elected representatives, except where Constitutional text and tradition clearly indicate otherwise,” is being nudged out in favor of a seemingly quicker and more efficient way to do things. In other words, her implication here is that we seem to be knocking on the Court’s door every time we have a problem.
It’s hard not to agree with her at this point even if one agrees with the outcome of certain recent court decisions. Put another way, anyone who’s thought about the deeper processes at work will soon realize that no matter the good that’s come from certain decisions, the precedent is a potentially dangerous one. The precedent of course being ‘let’s leave it to nine judges to decide everything we find problematic in society.’
I consider myself neither a fear-mongerer nor Supreme Court doubter, but I don’t think one need be either to simply worry about the type of court the highest in the land is slowly becoming: an arbiter not of the constitution but of morals. It is, essentially, another legislative branch. Even unapologetic Constitutional haters like Daniel Lazare worry about this hard turn. Whereas Americans “were formerly inclined to see the Supreme Court as a neutral body devoted to the concept of the law as a force greater than politics, they now see that it as no less baldly political than any other institution in Washington.” It seems likely that our insistence on using legal jargon and “rights talk” rose part and parcel with our viewing the highest court in the land as the ultimate decision making entity in our country. Which, of course, is much easier to digest when the court is overtly political and has a majority of members whose political alignment is the same as one’s own.
Though it is this very notion of legal talk that Glendon thinks is our most dangerous aspect: it “cheapens” the complexity of most issues while simultaneously “foreclosing further communication with those whose points of view differ from our own.” “The language of rights,” she says “is the language of no compromise.” After surveying the superficial problems—perhaps the more obvious ones—Glendon sets the question in plain. Alas, the question she wishes to answer with her exploratory book: “Why does our public rhetoric so regularly gloss over the essential interplay between rights and responsibilities, independence and self-discipline, freedom and order?” Grandiose and pregnant questions, indeed.
Where she wants to get us is to a more “refined rhetoric;” one that “would promote public conversation… keep competing rights and responsibilities in view, helping to assure that none would achieve undue prominence and that none would be unduly obscured.” This, however, is a tall order considering our hair-trigger ability today to say ‘so what?’ or ‘screw em’ to the apparently obvious and backwards views of others. By urging that no view achieve “undue prominence,” Glendon shows herself as moderate or even classical conservative: she believes compromise to be both a political virtue and absolutely essential in a democratic republic. Without it, we have very little reason for hope.
If it were only compromise she were after, the book would have focused more on swindling, backhanded dealing, and a guide to two-faced politics rather than an inquiry into our talk of rights and responsibilities. As she says about her book: “It is not an assault on specific rights or on the idea of rights in general, but a plea for reevaluation of certain thoughtless, habitual ways of thinking and speaking about rights.” This is no small order of business. Her first task is to trace whence all this absolute rights talk came from which she pinpoints in the political philosophy of property rights—the likes of Blackstone, Locke, and so on. Here Glendon rightly points to the rather obvious fact that property rights were never, much to the dismay of believers today, absolute in any sense. Of course they may have been absolute in the letter but were never close to such in spirit. One can bolster this view by surveying the historical literature: “the crucial fact,” Forrest McDonald writes “is that ownership did not include the absolute right to buy or sell one’s property in a free market; that was not a part of the scheme of things in eighteenth-century England and America.” McDonald’s chapter “The Rights of Englishmen” in his book Novus Ordo Seclorum can be read as a historical supplement to Glendon’s criticism of proponents of rights absolutism. She writes:
“Absoluteness [in the law] is an illusion, and hardly a harmless one. When we assert our rights to life, liberty, and property, we are expressing the reasonable hope that such things can be made more secure by law and politics. When we assert these rights in absolute form, however, we are expressing infinite and impossible desires—to be completely free, to possess things totally, to be captains of our fate, and masters of our souls. There is pathos as well as bravado in these attempts to deny the fragility and contingency of human existence…”
It’s hard to deny Glendon’s sober and relatively unbiased assessment of the situation both in light of the actual history and her larger project. The former being that much to the dismay of libertarians and glorifiers of the past, rights were never absolute. As far as the larger project, Glendon simply wants us to realize this so that we may preserve what little societal fabric we have and have more constructive conversations in the political sphere.
Once we ditch our neolithic assumptions about the absoluteness of our own rights, we still have most, if not all, of the work ahead of us. Even acknowledging that our right to property has reasonable limits, we still think of ourselves as individuals with clearly defined borders. Glendon calls this “the lone rights bearer.” At the heart of this tangled mess is the belief that we are singular individuals that come together to form a society—in no way does society come first. In other words, we are all strangers that happened to wander close, so we decided to form bonds. It’s not surprising that we have, for the most part, come to believe society doesn’t impose anything upon us in terms of the way we think about the world. Individuals and society do not form a sort of reciprocal back and forth or symbiotic relationship. Thanks to Hobbes, Locke and others, we have the state of nature thought experiments that lend credence to these individual-before-society views.
Glendon urges us to grab hold of another notion: the idea that “people do not ‘enter’ society; they are constituted in part by society and in turn constitute it.” This is no strange idea, for many thinkers before her have at their most critical wanted to do away with any individual-society schema, and in their more exhausted states wished to simply talk about more exciting things. I find myself in the latter camp. The overblown effect that progressives think society has on individuals versus the radically individualistic view that ‘everyone has a choice’ is one of the more exhausting examples of these black-and-white style conversations.
As Glendon points out, neither view is without harsh implications. The orthodox-individualistic view perpetuates on a deep level the idea that we owe nothing to anyone else (putting aside the positives of this view for a moment), while the progressive-society focused view perpetuates the idea that we owe everything to that thing we call society; that we are but helpless bystanders to society’s will and force. In that sense, then, Glendon is spot on in wanting us to ditch either extreme, because each view leads to some undue focus on one aspect to the exclusion of the other. She says,
“Modern liberal polities require not only a citizenry that is prepared to accept some responsibility for the less fortunate, but citizens who are willing, so far as possible to take responsibility for themselves and their dependents. Conservatives tend to lament deficiencies in the latter area; progressives, in the former.”
In other words, there is no lone-rights bearer outside of the society he or she is apart of, and neither is there only society in which there are lesser, smaller pawns known as individuals who have very little control over their own lives.
Once Glendon disposes of both the myth of absolute rights and the fantasy of the lone-rights bearer, she explores the relative lack of “responsibility language” in our founding documents and court decisions as compared to other countries. In a quotable line, she opens up this chapter by noting that “the American rights dialect is distinguished not only by what we say and how we say it, but also by what we leave unsaid.” In our system, in other words, good behavior is not encouraged by codified law, but rather, per Mill, are “left to other social norms—custom, convention, and religion.” She notes that our legal system in the United States trains our lawyers to make harsh distinctions between the law and morality—pointing out that it is perfectly legal to pull up a chair and watch a toddler drown in a pool, whatever your thoughts may be about the morality of such a heinous failure to act. This, Glendon points out, is not so in other countries.
Whereas it is true that bystanders who don’t come to the rescue of other stranger-citizens in harm’s way are not punished in any harsh or legal sense, judges have a much easier time conveying a sense of responsibility to the particular person before them, thus navigating the murky waters between ‘what are my rights?’ and ‘what are my duties?’ much better than we do here. Glendon is the first to point out that these types of “bystander” situations are gray areas, and yet other nations do a far superior job in dealing with these gray areas when compared to the United States in which rights are primary and the only focus of the situation. The heavy lifting Glendon wants us to do at this point is to shift our way of thinking and speaking from black and white to the promotion of gray areas—in her eyes, judges can and should show a genuine sense of disappointment in their opinions along with the articulation of the hard laws and rights of the situation. The entire theme of the book is, more or less, the idea that most situations need not be ‘either/or’ but ‘both/and.’ Much to the dissatisfaction of anti-collectivists and radical individualists, this new way of thinking and speaking is hardly a tall order or a slippery slope into the law being a moral guide perpetuated by a few elitists. A judge’s disappointment, Glendon keeps clear, isn’t a legal ruling even though it may have a profound and important role to play.
Ruminating on this idea a bit more, Glendon, in the chapter “The Missing Dimension of Sociality,” observes that our founding documents, court decisions, and interpretations rarely, if ever, speak of community. For instance, with respect to the contentious issue of flag-burning, Glendon says:
“what was never fully brought to expression in the controversy was the underlying disagreement between those who equate all widely held standards with majoritarian oppression, and those who regard the extension of constitutional protection to flag-burning, child pornography, or sadomasochistic art, as an assault on all the practices and procedures through which a society constantly defines and redefines itself. The maintenance of vital democratic society, a society with a creative tension between individual freedom and the general welfare, requires that a continuing debate take place about just such matters. If political discourse all but closes out the voices on one side of the debate, liberalism itself is at risk. Yet that is precisely what our simple rights dialect regularly does.”
Words like “tension,” “gray,” “complicated,” and other synonymic words appear regularly throughout the book, and Glendon is right to belabor the point. Compared to other relatively homogenous societies, the United States is wildly heterogeneous and struggles to have any overarching and authoritative narrative due to the countless number of cultures and peoples. To say nothing of the harshness and ideological radicalism of competing narratives. In other words, we are fragile (not that other nations and societies aren’t). As Glendon points out, most constitutions were written post-World War II, and along with statements of absolute rights they include many disclaimers and exceptions to those rights as well—most importantly these disclaimers and exceptions always allude to a sense of community or social responsibility involved in the matter. For example, in one nation’s constitution, Article I states that “Property and the right of inheritance are guaranteed. Their content and limits shall be determined by law,” while section two immediately states that “Property imposes duties. Its use should also serve the public weal.” This second half is notably absent from our version in the United States, and it’s safe to say that this would offend even some of the profoundest sensibilities on this side of the Atlantic.
In a particularly clear-headed observation, Glendon notes that it is precisely because our Constitution is much older that that dimension of sociality is notably left out. And it is with good reason; for “in the beginning there was no particular reason for American statesmen to pay special attention to families, neighborhoods, or other small associations. These social systems were just there, seemingly, ‘natural,’ like gravity on whose continued existence we rely to keep us grounded, steady, and attached to our surroundings.” One comes away thinking, ‘of course; why would they talk of sociality and community if they were simply assumed?’ It doesn’t take a soothsayer to predict Glendon’s lament at the loss of community in our society; others such as Nisbet, Oldenbourg, and Putnam have done so at length before. The breakdown of society, she claims, is due to all these fractures among the little institutions; the smaller associations we used to rely on so much in older times. In one sense, I can lament with her; in another, I think we are dealing with no more, no bigger, and no more serious set of problems than any other time in history. Yet there is still something terrifying, perhaps more than other pathologies, about the breaking down of informal social institutions.
Taking a brief detour around her penultimate chapter about our “rights insularity” as compared with other nations and countries, we find ourselves at a half-hearted conclusion. It is half-hearted because it has no call to action. At least no call that makes us ready to strap on our shield and pick up our swords in any heroic fashion. While Glendon and her requests are moderate, I think at times she underestimates the difficulty of essentially saying ‘we just need to speak differently.’ Bad habits are hard to break—two-hundred year old ones may well be near impossible. Especially when they are myths based upon an unrealistic version of two-hundred years ago.
Aside from some minor disagreements with Glendon about what the role and nature of law ought to be, I find myself coming away from this book somewhat of a cynic. What Glendon wants us to do may be much harder than it initially may seem: feeling a sense of profound hope for restructuring the “public sphere” is soon crushed by the countless real conversations that, even trying to apply Glendon’s points, are derailed almost as soon as they leave the station.
Perhaps we are too set in our ways to turn back; too heavy that even a light touch to the other side of the scale in the name of moderation seems pointless and ineffectual—a Sisyphean task. After all, our talks of rights seems more like a psychological defense mechanism for lack of depth or rigor than anything else.
But for those with a temperate heart like myself, it is much easier to see the call to action. It is, in short, a refusal to take sides. Even more, it is a bold suggestion that we start to talk of responsibility just as much as, if not more than, rights and laws. The boiling down of conversations both formal and informal to ‘well, it’s my right’ is true enough, but it’s to say nothing of interest or importance on the matter. Glendon hopes, I think, that we who believe that there are two halves to our democratic equation—rights and responsibilities—not give up on the latter half. For it is true that this half has no legal foundation and is much more hazy and complex, but, like most intangibles, it is powerful. It is also in desperate need of a revival so that its power to transform can once again be seen.