Plausible Misconceptions

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gabriel conroy

Gabriel Conroy [pseudonym] is an ex-graduate student. He is happily married with no children and has about a million nieces and nephews. The views expressed by Gabriel are his alone and do not necessarily reflect those of his spouse or employer.

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  1. Avatar Gabriel Conroy
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    says:

    Hi all:

    I’ll be gone for most of today, but I’ll try to read and respond to comments tonight or sometime this weekend. Thanks for reading my post.Report

  2. Avatar George Turner
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    says:

    A recent poll of 1,500 college students found that only 39% think the First Amendment protects hate speech. Washington Post story

    That’s can’t be the result of mere ignorance. That’s active misinformation.Report

    • Avatar Burt Likko in reply to George Turner
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      I disagree. That can be the result of mere ignorance, especially if we include within our definition of “mere ignorance” the likelihood of reasonable confusion.

      It’s commonly known, for instance, that in some cases a person’s spoken words can be used against them in a court — a discrimination lawsuit, for instance.

      Yet if we say spoken words are also sometimes protected by this nebulous thing we call “freedom of speech” and this other nebulous thing half-remembered from an ill-taught high school civics class called the “First Amendment,” then how do we square that with punishing people for things they say?

      Someone might make the understandable mistake of saying, “Well, that must mean that some speech isn’t protected.” That speech is used as evidenceof something else (intent, most often) rather than used as the direct basis for punishment is a pretty subtle distinction, one lost even sometimes on the very lawyers who gather and use that evidence.

      Then, of course, when you dig into the jurisprudence, we find out that indeed, some speech really isn’t protected. One of the categories of speech that isn’t protected is “fighting words.” Which sounds something like “hate speech.”

      That’s not the result of “active misinformation,” a phrase which implies somone is deceiving the public about this subject. It’s just complex, is all, and simple surveys with clumsy wording may very well obscure more than they reveal about the state of public education.Report

      • Avatar InMD in reply to Burt Likko
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        I dunno Burt. I agree that it doesn’t have to be misinformation but there are plenty of prominent voices out there calling for various limitations on speech, including establishing laws other Western countries have adopted that wouldn’t pass 1st Amendment scrutiny here. Now I do think there’s more ignorance out in the general public than ideology but I don’t think that’s quite whats going on at colleges.Report

        • Avatar Mike Schilling in reply to InMD
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          says:

          Roy Moore, a former judge who’s running for the Senate, says the Constitution doesn’t protect the right not to salute the flag. That’s much worse than some college kid.Report

        • Avatar gabriel conroy in reply to InMD
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          says:

          I think the key here is to try to decipher whether the misinformation is willful or not. Mr. Moore, as Mike Schilling points out, is much more on the willful side.

          As for what’s going on in colleges, I suppose it depends on the specific student(s) or group(s) involved.

          I will say, in more of a direct answer to George Turner, that “hate speech” is one of those things I had in the back of my head when writing this OP, but I didn’t quite know how to fit it in elegantly. I do think the (somewhat) widespread notion that “hate speech” isn’t protected is due largely to the dynamic Burt describes (and to be clear, he’s elucidating how all that can happen; he’s not suggesting that it must always be happening that way). But I’m sure there are some who are being more willful.Report

  3. Avatar Burt Likko
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    An insight from a civil lawyer’s practice: from time to time, clients come to me with a dispute against another person and ask me “Have I been defamed?” They know the words “libel” and “slander” but aren’t always really clear on the precise definitions.

    But here’s the rub: they want me to go into court and get an order to stop the other person from saying these things. Which is pretty much the classic definition of a prior restraint. Explaining to them that we can’t get prior restraints because of the First Amendment is a tough thing for me to do and frustrating thing for them to learn. They want there to be a prior restraint against defamation and all of these high-falutin’ theories about freedom and liberty and truth and the marketplace of ideas don’t mean much to them when they’re suffering the sting of a half-true invective-laced accusation.

    I infer from the fact that I’ve been asked to go to court and seek injunctions like this so much, for so long, that this is a facet of American law that is widely misunderstood.Report

    • Avatar Saul Degraw in reply to Burt Likko
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      says:

      They certainly don’t know about Sullivan either probably.

      I concur that a lot of people have a feeling of “that’s not right” on the law and are really angry when they need to be told about things like the Learned Intermediary Doctrine.

      I’ve had to explain jurisdiction a lot lately because of a Supreme Court case. Explaining Jurisdiction to non-lawyers is really hard.Report

    • Avatar gabriel conroy in reply to Burt Likko
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      says:

      This is one of those things I didn’t know. Chances are greater than 50/50 that if 5 minutes before reading your comment, I had been asked whether someone could enjoin defamatory speech, I would have guessed yes. (Even so….can’t someone get a cease and desist order?….or is that something different?)

      I was thinking more along the lines of the government prohibiting publishing certain speech about the government and not about civil claims.Report

  4. Avatar CJColucci
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    says:

    I yield to no one in my belief in the ignorance of the American public, but surveys like this don’t tell us much. As you say, respondents may not know what rights the First Amendment protects, but they have a tolerably good idea, if somewhat muddled, about what rights they have and that they are somehow protected by the Constitution. Chapter and verse, and the straightening out of some misconceptions, is for the professionals. And surely they know that there is a President, and a Congress, and a Supreme Court, and they probably know there are other federal courts as well. Maybe they think the alphabet agencies are a fourth branch of government, which is technically incorrect but not an unreasonable thing to think. Even the professionals sometimes think they kinda-sorta are, so I can’t get down on lay folk who reify a metaphor.
    I’m quite certain that the public’s actual ignorance, accurately determined, would be appalling, but I can’t get the vapors based on what surveys like this show.Report

  5. Avatar DavidTC
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    says:

    None of those answers is right, but I can understand why thoughtful but imperfectly informed person might offer them. The FTC (and other regulatory agencies) can issue regulations that look a lot like laws and judicial decisions even though it’s not a legislative body or a court and even though it’s implementing and enforcing laws, which is an executive branch function.

    I don’t think the sort of person who knows what the FTC is would be the sort of person who would not be able to correctly answer the ‘What are the three branches of the Federal government?’ question. This isn’t an example of ‘being smarter than the questioners’….the three branches are fairly well defined in the constitution…they all just sometimes end up doing ‘the wrong things’.

    If someone said ‘Define the three branches and their role in the government’, yeah, some smart people might overthink the question and explain how the executive makes a bunch of rules, or how the courts often end up basically making laws, or at least regulations, if the laws are silent, but just the existence of the three branches and their names isn’t in dispute.

    OTOH, it does seem likely that some people said ‘The president, Congress, and the Supreme Court’, which is a) technically incorrect on every one of those, and b) entirely right in any meaningful sense, they just named the ‘heads’ instead of the branches.

    Weirdly, if you look at the constitution, it might be possible to logically infer that the state governments, in a way, are supposed to be the fourth branch. I mean, they are Article 4, coming after legislative, executive, and judicial.

    However, this falls apart if you keep going to Article 5, because ‘How to amend the constitution’ is a pretty abstract concept for a branch of the government, and they just get weirder.

    Of course, if you read the actual text of the constitution, it doesn’t name the branches what we call them anyway. E.g., it basically asserts that executive power _exists_, presumably as some sort of law of physics or something, and then _vests_ that power to Congress. The word ‘branch’ doesn’t even appear in the constitution except for the obscure rule that members of the House of Representatives (And now the Senate) have to meet their own state’s congress’s most numerous branch of legislature requirements, a rule I literally had never heard of until this very post.(1)

    1) A rule which, now that I think about it, appears to make a state imposing a Congressional term-limit legal. All a state would have to do is assert that someone cannot be elected to their state’s Congress if that person has previously served X years in the US Senate, and, tada, they also cannot be re-elected to actual US Senate either. I don’t know why no one’s done this. Wow I’m off topic, but whatever.Report

    • Avatar gabriel conroy in reply to DavidTC
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      says:

      I don’t think the sort of person who knows what the FTC is would be the sort of person who would not be able to correctly answer the ‘What are the three branches of the Federal government?’

      You may be right on that one. My original example was going to be the Federal Reserve, of which more people are more likely to have a passive, but withal incomplete, understanding. My problem was that what the fed does doesn’t fit my narrative quite as well as the FTC does. (I don’t believe the fed makes judicial-like determinations the way the FTC appears at first glance to.)

      Your reading of the mentions of “branches” is much more detailed than mine. So good work, sir!

      I’m not sure I buy the argument from your note #1, however. I understand that provision to be about who’s qualified to vote for certain offices, not about who’s qualified to win those offices.Report

      • Avatar DavidTC in reply to gabriel conroy
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        says:

        You may be right on that one. My original example was going to be the Federal Reserve, of which more people are more likely to have a passive, but withal incomplete, understanding. My problem was that what the fed does doesn’t fit my narrative quite as well as the FTC does. (I don’t believe the fed makes judicial-like determinations the way the FTC appears at first glance to.)

        It’s the same sort of thing there…_logically_, anyone who is knowledgeable enough to have a real beef with the Fed is knowledgable enough to know the three branches, and their beef would be something along the lines of ‘The legislature is supposed to make laws, and the executive is supposed to enforce them, not the completely unaccountable Federal Reserve!’ or something like that.

        That said, this country just elected Donald Trump, proving it’s entirely possible to take somewhat real problems and convince people of very stupid things WRT them. It’s entirely possible there are voters out there who think that the Federal Reserve is some evil branch of the government operating next to the executive and the legislature.

        Likewise, it’s possible, in your FTC example, that some people think ‘government bureaucrats ‘ are some branch of the government also…I was just basically thinking if they know the term ‘FTC’, they probably know how the government works.

        But, hey, a lot of people in this country appear to know nothing about anything, so, who knows at this point? If talk radio started talking about the evils of the FTC, at some point we’d have people chanting ‘dismantle the FTC’ (Just like they want to make the Fed entirely transparent via ‘audit the fed’, when real problem is the Fed’s priorities, which the government sets.) or something stupid. This hasn’t happened so far, but could easily.

        I’m not sure I buy the argument from your note #1, however. I understand that provision to be about who’s qualified to vote for certain offices, not about who’s qualified to win those offices.

        You are 100% correct there, I misread that entirely. No wonder I had never heard of it. That actually says that people who get to vote for the House (and later Congress) are required to be the same people (Or at least have the same requirements) as the people who can vote for the largest branch of the legislature in the state government.

        This raises the interesting question of whether or not a state has ever had separate voter pool for two different branches of their legislature, and thus if ‘the largest’ qualification has ever mattered. (I know at least one state only has one branch, but that presumably counts as ‘the largest’ one.)Report

        • Avatar gabriel conroy in reply to DavidTC
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          says:

          This raises the interesting question of whether or not a state has ever had separate voter pool for two different branches of their legislature, and thus if ‘the largest’ qualification has ever mattered.

          I don’t know the answer, but if there has been a state, or states, that did that, I’d bet antebellum South Carolina was one of them.Report

        • Avatar Kolohe in reply to DavidTC
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          says:

          Similarly the upper chamber had usually been appointed by the governor in colonial days, except in Rhode Island,
          Connecticut, and Massachusetts. Now the upper house too became elective, though on slightly different terms from the lower house: The districts were larger, the terms longer, and usually the officeholder had to meet more stringent requirements on age, residence, and wealth. In North Carolina and New York the franchise was also more restricted. Both states lowered the requirements to vote in a house election but
          retained the earlier property qualification for the upper house: 50 acres in the former £100 freehold in the latter. In New York, under this provision only 28.9 percent of adult white males could vote for the state senate in 1790, half the number that could vote for the house. In most states,though, the senates of the 1790s were fairly reflective of popular opinion and, in any case, power was concentrated more in the lower houses

          (page 10-11) of the PDF, page 228-229 in original pagination)Report

  6. Avatar aaron david
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    says:

    Lies, Damn Lies, and Statistics.

    The phrasing and framing of questions for a survey often have greater ability to sway the direction of answers to those questions than we care to admit. As both Burt above and Gabriels OP point out, most people do have a strong sense of the three branches of gov’t and a decent idea of the 1st amendment. And outside of forums for political dorkery (such as this, he says proudly), these issues don’t come up that often. And thus we can excuse most people from eloquent descriptions of the workings and bedrock of our gov’t.

    That said, there are people who should know better, such as former presidential hopeful Howard Dean. And a good civics class at the high school level would be most welcome by me, as sharpening people perception of these principles is, in my opinion, an unalloyed good.Report

    • Avatar gabriel conroy in reply to aaron david
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      says:

      I hadn’t heard about the Howard Dean tweet before. Thanks for binging it to my attention.

      As for a “good civics class at the high school level,” I agree. But I have two caveats.

      One, we (as in all of us, not necessarily you or me) need to think hard about what we mean by “good.” There’s such a wide range of what people come into such a class already knowing, that the instructor will have to skip over some things that you and I might consider essential. For example, I had a passably good civics class in high school, but I don’t believe the instructor ever found time to talk about how much of the bill of rights was incorporated against the states via the 14th amendment. I suspect that’s partially because only a few of the students knew enough of the basics for that particular tidbit to have much meaning. (I suspect it also partially may be that the instructor didn’t know about it.)

      Two, my working hypothesis is that subject like civics are best taught and learned through constant engagement. By the time I graduated high school, I had a pretty good command of what our government did and how it did it and why it was constructed the way it was. But that wasn’t because I took a good civics class. As I just said, it was indeed “passably good,” but by itself it couldn’t have taught me even the basics that the instructor actually did cover. That’s because my knowledge was reinforced repetitively through my history courses and watching the news.

      A good civics class is a start, but it shouldn’t end there. I realize you’re not saying it should end there. You’re just saying it’d be a good thing to have.Report

  7. Avatar Mike Schilling
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    says:

    The Constitution does not protect the right to criticize or laugh at the Attorney General, nor to criticize a general.Report

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