Offense

[Volokh, Eugene]

	It's possible that under some legal tests, the mere fact that
something offends enough people might justify regulation -- not because
this makes the action bad manners, but because it may (for instance)
cause excessive political divisiveness.  I'm not wild about such a
theory, but it's at least possible that it's proper as to the
government, though not as to individual speakers (even if we substitute
"a rule of good manners against it" rather than "regulation").

	Nonetheless, even here focusing on offense as such seems a
pretty poor approach.  True, many Jews may be offended by a creche
(though others might not be).  At the same time, many people are
offended by the government's (here the Court's) decision to prohibit
standalone creches.  Now one can argue that the first sort of offense
should count and the second should not; but why, if the point is simply
that it's bad manners (or even presumptively bad manners) to offend
people?  Plus if we eliminate the "reasonableness" requirement, can this
really be a viable test -- anything related to religion that offends a
nontrivial number of people (how would we count them? what would be the
threshold?) is unconstitutional?  (Recall that O'Connor didn't limit her
endorsement test to government religious speech, but also applied it to
religious exemptions, religious participation in generally available
funding programs, and pretty much any Establishment Clause controversy.)

	Eugene

> -----Original Message-----
> From: Mark Tushnet [mailto:mtushnet at law.harvard.edu] 
> Sent: Tuesday, August 08, 2006 4:25 PM
> To: Volokh, Eugene
> Cc: CONLAWPROF at lists.ucla.edu
> Subject: RE: Offense
> 
> To shift the example:  I once wrote that Justice O'Connor's 
> assertion that reasonable Jews wouldn't take a municipally 
> supported creche to be an endorsement of Christianity would 
> come as a surprise to most (I think I said, though "many" 
> would do as well) Jews in the country.  (I don't have my 
> wording right, and I'm certainly not quoting Justice 
> O'Connor, although I would argue that my description of her 
> assertion is accurate.)  I took that to be an
> *argument* against her application of the endorsement test, 
> and an illustration of why that test might not be a good one. 
>  To that extent, I was arguing that others who thought about 
> the problem shouldn't take her approach.  (Note that it 
> doesn't really help to try to salvage her point by 
> emphasizing the "reasonable" in her formulation; indeed, 
> doing so exacerbates the problem by describing as 
> unreasonable quite a large number of Jews.)
> 
> In some contexts, then (it seems to me), the *fact* of 
> (widespread) offense provides a reason for 
> rejecting/accepting some arguments.  That, coupled with a 
> general norm of good manners (which might be tautological -- 
> what makes behavior good manners is that it conforms to a 
> general norm to which people adhere without having to provide 
> reasons for their conformity), suggests that the fact of 
> (widespread) offense provides a reason for asking the person 
> making the perceived-to-be-offensive statement to offer an 
> explanation for his/her doing so, other than "I take offense 
> at being told what to say" (unless the taking offense is 
> itself sufficiently widespread to trigger the dilemma Frank 
> Cross referred to).
> 
> --
> Mark Tushnet
> William Nelson Cromwell Professor of Law Harvard Law School 
> Areeda 223 Cambridge, MA  02138
> phone:  617-496-4451 (office)
>         202-291-6352 (home)
>         202-374-9571 (mobile)
>         617-496-4866 (fax)
> 
> 
> Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:
> 
> > 	I certainly did not understand Marty to be intending offense.
> > But it seems to me hard to interpret a statement that 
> "there is likely
> > not an African-American person (or a person of color, likely) in the
> > country that would not be deeply offended by this particular line of
> > argument" as anything but a demand -- not backed by force 
> of law, but a
> > demand nonetheless.
> >
> > 	I agree entirely that all of us have a general obligation of
> > good manners, and of good will toward and respectful 
> dealing with our
> > fellow list members.  On that I think there is no difference between
> > Marty and me.
> >
> > 	But I do not think that good manners require us to abandon the
> > use of words or concepts simply because people say, however 
> sincerely,
> > that they are offended by the word or concept.  Insisting 
> that others
> > stop using the words or concepts they choose, or be guilty 
> of breach of
> > good manners, is no small thing.  It is sometimes justifiable, for
> > instance if one can argue that the words or concepts draw unsound
> > analogies that unfairly malign some group, or if the words 
> or concepts
> > are likely to be reasonably perceived as deliberate insults.
> >
> > 	To give an example:  I remember a couple of people telling me
> > that "handicapped" is an offensive term, because it 
> originates in the
> > notion of handicapped people begging for money with their 
> caps in their
> > hands.  I'm not sure that etymology tells us much about 
> whether the term
> > should be seen as offensive, but even if it does this turns 
> out to be a
> > false etymology: the origins of "handicapped" are 
> completely different.
> > (The term apparently flows from a 19th century betting game call
> > "hand-in-cap," from there to handicaps in some sports, and 
> from there to
> > handicaps in the sense of a burden that some bear.)  I'm 
> sure there are
> > some people -- a small fraction of the handicapped, I suspect, but
> > nonetheless some -- who are sincerely offended by use of 
> the term.  But
> > I don't think that their views, however sincerely felt, 
> deprive me of
> > the right (not just a legal right, but a right within the 
> rule bounded
> > by good manners) to abandon this perfectly proper word.
> >
> > 	Likewise my sense of offense, which I assure you is quite
> > sincere, at others' telling people (without what I see as adequate
> > justification), including me, what not to say doesn't 
> impose on others
> > an obligation to stop such demands.  (Of course, if my arguments are
> > sound, then others might be persuaded by them, but only because my
> > arguments are sound, not because it's bad manners for them 
> to say such
> > things to me.)
> >
> > 	Eugene
> >
> >
> >
> > ________________________________
> >
> > 	From: Marty Lederman [mailto:marty.lederman at comcast.net]
> > 	Sent: Tuesday, August 08, 2006 3:17 PM
> > 	To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> > 	Subject: Re: Offense
> >
> >
> > 	Eugene:  I hope it was clear from my post that I intended no
> > offense (after all, that woulda sorta defeated the purpose).  In any
> > event, please be assured that I don't.
> >
> > 	I didn't see anyone "demanding" anything here.  Merely Yvette
> > explaining why many would find Mark's analogy offensive.  
> (She did not
> > accuse Mark of ill-will, and Mark, to his credit, responded to her
> > explanation with aplomb and understanding.)
> >
> > 	Me, I think that's a good thing.  I'm not a civility fiend -- I
> > think there are certainly times and places where civility is
> > unwarranted.  But I should hope that won't often be the case on this
> > listserv.
> >
> > 	I'm curious, though:  Why don't you think that any of us has a
> > general obligation of good manners, paricularly on the 
> list?  A general
> > obligation, mind you -- a basic but rebuttable presumption 
> of good will
> > toward and respectful dealings with our fellow list-members?  Surely
> > that has been the norm here (thanks in no small measure to 
> our generous
> > host!), and I think it would be a shame if it ceased to be the case.
> >
> > 		----- Original Message -----
> > 		From: Volokh, Eugene <mailto:VOLOKH at law.ucla.edu>
> > 		To: CONLAWPROF at lists.ucla.edu
> > 		Sent: Tuesday, August 08, 2006 6:01 PM
> > 		Subject: RE: Offense
> >
> > 		    Well, it turns out that I myself am rather offended
> > when people start demanding based on (in my view) an inadequate
> > justification that people (which would end up including me) not say
> > certain things.  Nor do I think that any of us have a general
> > obligations of good manners -- as opposed to a judgment 
> about rhetorical
> > effectiveness, should we choose to act based on such a 
> judgment -- or
> > even a presumptive such obligation, to recast our arguments simply
> > because some may find them offensive.
> >
> > 		    I'm aware that some people are offended by the terms
> > "handicapped," "rule of thumb," "Mormon," "black," "Jew" (used as a
> > noun, e.g., "I'm a Russian Jew"), and a long and 
> ever-lengthening list
> > of other terms.  I've at times been urged to stop using those terms.
> > Yet absent a persuasive argument that the offense is indeed 
> reasonable,
> > it seems to me right to draw the line and to say that none 
> of us has an
> > obligation to continually drop various terms from our 
> vocabulary simply
> > because others insist on it.  (I go into more detail about 
> my reasons in
> > a recent post at
> > 
> http://volokh.com/archives/archive_2006_07_30-2006_08_05.shtml
> #115458443
> > 3.)  The same is at least as true for ideas and lines of 
> argument rather
> > than words.  And it seems to me important to stress this, 
> since if only
> > critics of such terms and not defenders of their use were 
> heard, others
> > might feel (in my view improperly) pressured to abandon perfectly
> > legitimate terms and arguments.
> >
> > 		    On the other hand, if others want to shift to
> > another, more substantive, topic, I'd be delighted to go along with
> > this.
> >
> > 		    Eugene
> >
> > ________________________________
> >
> > 		From: Marty Lederman [mailto:marty.lederman at comcast.net]
> >
> > 		Sent: Tuesday, August 08, 2006 2:46 PM
> > 		To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> > 		Subject: Offense
> >
> >
> >
> > 			No, of course not -- the "mere fact" that one
> > fellow listserv participant is offended should not necessarily deter
> > someone from posting their views.  Not standing alone, 
> anyway.  (No one,
> > surely not Yvette, has said anything about entitlements to post or
> > obligations not to do so.)
> >
> > 			But when a thoughtful, careful writer such as
> > Yvette -- a trusted and valuable member of our small 
> community here --
> > suggests that someone has unwittingly phrased an argument 
> in a way that
> > does, in fact, deeply offend a great number of readers, 
> surely the only
> > proper thing to do, the only civil course of action, is to 
> regret having
> > caused such offense, and to think hard about whether there's an
> > alternative way to put the point in a way that will not be 
> so offensive,
> > no?
> >
> > 			Eugene, I take it your point is that it was not
> > reasonable for Yvette (and if she's correct, all persons of 
> color) to be
> > offended by the analogy.  In light of the source, and the 
> civil manner
> > in which she carefully phrased her objections, I would 
> hesitate long and
> > hard before reaching such a conclusion about what should 
> and should not
> > offend people of color.  But be that as it may, even if one 
> concluded
> > that she was being unreasonable, why on earth wouldn't you 
> nevertheless
> > regret the offense, and do what you can to make the 
> analytic point in a
> > way that is not so hurtful?
> >
> > 			Or am I misconstruing your point?
> >
> > 			P.S.  This thread, and its current civility
> > offshoot, has been rather odd, to say the least.  It's not as though
> > there aren't tons of live, very important ConLaw questions 
> percolating
> > out there that could benefit from our discussion.  And yet 
> the list has
> > been fairly quiet for weeks.  But when Mark offers a provocative yet
> > very unorthodox suggestion -- i.e., one that surely won't be in the
> > mainstream of 13th Amendment doctrine for quite a while, if 
> that -- it
> > prompts so many posts that my In-Box can barely stand the 
> volume!  Not
> > that there's anything wrong with it, of course . . . but it is
> > interesting what piques folks' interests . . .
> >
> > 			----- Original Message -----
> > 			From: "Volokh, Eugene" <VOLOKH at law.ucla.edu
> > <mailto:VOLOKH at law.ucla.edu> >
> > 			To: <CONLAWPROF at lists.ucla.edu
> > <mailto:CONLAWPROF at lists.ucla.edu> >
> > 			Sent: Tuesday, August 08, 2006 5:21 PM
> > 			Subject: RE: Re: Could the 13th Am. prohibit the
> > factory farming of animals?
> >
> >
> > 			If people find something offensive, they're of
> > course entitled
> > 			to express this view -- my point was simply that
> > the mere fact that some
> > 			are offended shouldn't strip the original author
> > of his entitlement to
> > 			express his view, and to continue expressing it.
> >
> > 			Eugene
> >
> > 			> -----Original Message-----
> > 			> From: Frank Cross
> > [mailto:crossf at mail.utexas.edu]
> > 			> Sent: Tuesday, August 08, 2006 2:19 PM
> > 			> To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> > <mailto:CONLAWPROF at lists.ucla.edu>
> > 			> Subject: RE: Re: Could the 13th Am. prohibit
> > the factory
> > 			> farming of animals?
> > 			>
> > 			>
> > 			> Sure, but I presume you don't object to posts
> > observing that
> > 			> people would find a given position to be
> > deeply offensive, do
> > 			> you?  That's all I saw
> > 			>
> > 			> At 04:00 PM 8/8/2006, Volokh, Eugene wrote:
> > 			> >         I'm sure fellow list members
> > recognize that I quite
> > 			> disagree
> > 			> >with Mark Stein's arguments on the merits.
> > But I don't
> > 			> think that he
> > 			> >or others who support this views ought to be
> > stopped by the concern
> > 			> >that some people would be "deeply offended"
> > by their position.  The
> > 			> >position that both slaves and animals should
> > be seen as
> > 			> having rights
> > 			> >to freedom from slavery is perfectly
> > legitimate, and in no
> > 			> way suggests
> > 			> >that slaves (or blacks or any other human
> > group) are morally
> > 			> inferior;
> > 			> >the argument rather is that animals (or
> > certain animals)
> > 			> shouldn't be
> > 			> >treated as morally inferior, either.  If some
> > people are offended by
> > 			> >this position, they're naturally entitled to
> > be.  But I see
> > 			> no obligation on others'
> > 			> >part to therefore refrain from making such an
> > argument.
> > 			> >
> > 			> >         The same can be said, of course, of
> > claims (which I've heard
> > 			> >made) that it's offensive to analogize sexual
> > orientation
> > 			> >discrimination to race discrimination.  I
> > realize that there
> > 			> are many
> > 			> >people, including many blacks, who find
> > homosexual conduct to be
> > 			> >morally improper, and thus conclude that
> > discrimination
> > 			> based on sexual
> > 			> >orientation is on a very different moral
> > footing from discrimination
> > 			> >based on race.  But this hardly makes it
> > improper for others
> > 			> to argue the contrary.
> > 			> >
> > 			> >         Eugene
> > 			> >
> > 			> > > -----Original Message-----
> > 			> > > From: conlawprof-bounces at lists.ucla.edu
> > <mailto:conlawprof-bounces at lists.ucla.edu>
> > 			> > > [mailto:conlawprof-bounces at lists.ucla.edu]
> > On Behalf Of
> > 			> Barksdale,
> > 			> > > Yvette
> > 			> > > Sent: Tuesday, August 08, 2006 1:46 PM
> > 			> > > To: MARK STEIN; conlawprof at lists.ucla.edu
> > <mailto:conlawprof at lists.ucla.edu>
> > 			> > > Subject: RE: Re: Could the 13th Am.
> > prohibit the factory
> > 			> farming of
> > 			> > > animals?
> > 			> > >
> > 			> > > Hi folks:
> > 			> > >
> > 			> > > Regarding this particular line of argument
> > - Politically, I think
> > 			> > > all should be aware that there is likely
> > not an African-American
> > 			> > > person (or a person of color, likely) in
> > the country that
> > 			> would not
> > 			> > > be deeply offended by this particular line
> > of argument.
> > 			> > >
> > 			> > > The foundation of the battle against
> > slavery, which culminated in
> > 			> > > the adoption of the Thirteenth Amendment,
> > was a fight to
> > 			> recognize
> > 			> > > the equal humanity of all persons - and
> > the recognition
> > 			> of certain
> > 			> > > basic rights which were guaranteed to all
> > persons. This
> > 			> rejection of
> > 			> > > the concept of  the equality of all
> > humans, was at the
> > 			> core of the
> > 			> > > institution of slavery which premised on
> > the proposition that
> > 			> > > persons of African-descent, were "less
> > than fully human" and thus
> > 			> > > were not entitled to rights. The
> > Thirteenth and Fourteenth
> > 			> > > Amendments were a repudiation of that line
> > of thinking.
> > 			> > > Instead, those amendments, at a minimum,
> > substituted a
> > 			> value system
> > 			> > > based upon the equal humanity of all
> > persons. Even
> > 			> > > post-Reconstruction Jim Crow rhetoric,
> > which was used to justify
> > 			> > > segregation, an institution which clearly
> > was premised on the
> > 			> > > persistent belief of the inferiority of
> > people of color,
> > 			> required
> > 			> > > at least the legitimating language
> > 			> > > of equality:   "separate but equal."
> > 			> > >
> > 			> > > To apply these amendments to animals would
> > turn this
> > 			> history on its
> > 			> > > head - and would essentially readopt the
> > same line of
> > 			> thinking that
> > 			> > > was previously rejected after much
> > struggle - that is the
> > 			> view that
> > 			> > > black people are no different than
> > animals, and if they deserve
> > 			> > > rights, then animals must as well. .
> > (Indeed, I heard a
> > 			> speaker on
> > 			> > > one of the WPA recordings of former
> > slaves, say
> > 			> specifically, that
> > 			> > > during slavery "we were treated like
> > livestock, the same as if we
> > 			> > > were a cow or a mule - no different" )
> > 			> > >
> > 			> > >  Of course, one could argue that all
> > people  (regardless of
> > 			> > > race) and all animals  are the morally the
> > same, and equally
> > 			> > > entitled to rights, but if so, the same
> > reasoning would have to
> > 			> > > apply to all constitutional rights - not
> > just Thirteenth
> > 			> Amendment
> > 			> > > ones - if people and animals are morally
> > the same
> > 			> > > - what is the basis for not giving all
> > "human rights"  to
> > 			> animals.
> > 			> > > (And the mental capacity argument does not
> > work - because even
> > 			> > > unconscious, or severely retarded,  human
> > beings still have
> > 			> > > constitutional rights  which can be
> > exercised by others acting on
> > 			> > > their behalf.)
> > 			> > >
> > 			> > >
> > 			> > > So the thirteenth amendment seems to fit,
> > people of color will
> > 			> > > quickly conclude, because the move from
> > "Negro"  to
> > 			> animal has been,
> > 			> > > and still, is such a subliminally easy one
> > in this country's
> > 			> > > sociology.
> > 			> > >
> > 			> > > yb
> >
> >
> > 		________________________________
> >
> >
> > _______________________________________________
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