Let the Punishment Fit the Crime
There’s an interesting discussion about free speech between Eve Garrard and Shalom Lappin at Normblog. Not, this time, via Irving and lying but via Frank Ellis and racist opinions. I had a thought about that earlier discussion with Norm and Eve, and have been meaning to scribble a note on that thought.
The thought was sparked by something Appiah said in a note (note 66 on page 337) in The Ethics of Identity.
The US has a singularly expansive free-expression regime, and yet even here, freedom of expression is tightly corseted, and legitimately so. The First Amendment does not protect a contract killer’s verbal contract; it does not protect a fraudulent or defamatory claim…
Bingo. Just what I said. There is no freedom of speech right to make fraudulent claims; that means deliberate falsification of evidence is not protected free speech. I went on thinking about this, because I still agree with Norm and Eve (and Lipstadt and Evans and lots of people) that (ideally, and leaving aside Austria’s particular situation) Irving shouldn’t go to prison for three years for falsifying evidence. So I decided that what we have here is a different right. If we want to put it in US terms (which we don’t, particularly, it’s just that it might clarify), what we have here is not a First Amendment issue but an Eighth Amendment issue. What we’re worried about here is not a putative right to lie but a disproportionality of punishment. (The Eighth Amendment reads in its entirety: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.)
In fact I don’t really particularly think Irving should (necessarily, ideally, in theory, etc) be punished at all, but I do think he should be prevented. That is, since his falsifications are now well documented, thanks to his bullying rashness in suing Lipstadt, I think they ought to be no more protected than claims that cigarettes promote health. That of course is not to say that I think the state should vet scholarly work for accuracy, or that it should get involved at all, but it is to say that I don’t think Irving does have or should have a legal right to tell lies – and that was the issue we couldn’t agree on.
Eve says this, in reply to Lappin’s* “There is, I think, a clear analogy here between the Ellis case and that of a racist candidate for a jury in the trial of a black defendent.”
I have very mixed feelings about this – on the one hand, your jury example is very convincing, but on the other hand I think that setting a precedent of punishing people for the implications of their views, on the grounds that holding the views is bound to make them act in accordance with those implications, is a bit worrying.
It is worrying, for the reasons that both agree on (intimidation of speech and proper academic functioning), but I would say that what’s at issue (Ellis’s suspension) is not actually punishment, but prevention. Leeds, it seems, suspended him in order to prevent him from having certain effects (which Lappin discusses), not in order to punish him. I think that makes a fairly important difference. Not much of a difference to people in that situation who are suspended and prevented, but a difference to the motivation and intention of the agents.
Another point, about something Lappin goes on to say:
But with the racist juror we are not prepared to take this chance. We regard his or her expressed opinions as sufficient grounds for disqualification from the role of impartial judge in a case involving someone directly affected by the potential juror’s racist attitudes. It is hard to see how we can avoid the same conclusion in the case of a university lecturer entrusted with power over students and colleagues.
I’m not entirely sure of my facts, here, but I don’t think that’s actually true – I don’t think ‘we’ exclude racists from juries, I think it’s one side or the other in the trial that does. I think that it is one side of an adversarial process that does that excluding, while the other side would much prefer to keep the racist. (In pre-Civil Rights Mississippi and other places that wasn’t even an issue, because blacks weren’t even eligible for jury duty [under what form of law or custom I don’t know]; for instance the jury who tried the murderers of Emmet Till was all white men who cheerfully acquitted them.) At any rate, it makes something of a difference to the argument, I think, because jurors are generally excluded not on the basis of fairness but on the basis of tactics. Tactics can just as easily prompt a desire for unfairness, bias, preconceptions. Juries are a rather disquieting subject, actually…
*I’ve just noticed I use first name for one, last name for the other. That’s because I’ve swapped quite a few emails with Eve, so I sort of ‘know’ her; it’s not absent-minded sexism, like those people who talk about Dickens and Hardy and Charlotte and Jane.
“We” do exclude some people from serving on juries. Judges exclude potential jurors “for cause” if there is something about them that makes them inappropriate to serve on a particular jury in a particular case (in addition to excluding people from jury duty generally for less particular reasons, such as, for example, being unable to understand the language that the trial will be conducted in). Other fairly common examples of “for cause” exclusions are when a potential juror is closely related to someone in the lawsuit, or has some independent knowledge of the case. Potential jurors may also be excused (by the judge) “for cause” if there is something about them which convinces the judge that they are not “neutral” (or there is a danger that they won’t be). A potential juror who is known to be racist would not, I suspect, likely make it to a jury in a case in which race was a factor.
Parties to lawsuits, usually through their attorneys, may also exclude (some) potential jurors. With some (singificant) limitations, these exclusions are not “for cause” (in the sense outlined above). They are “peremptory,” meaning that no reasons need be given. It is these kinds of challenges which are typically used to try to select juries that are favorable to your side … with the counterbalance being that the other side is trying to do the same thing.
Ah – thanks very much, Jeff. Sure enough, I wasn’t sure of my facts, and had them wrong. I’ll update to that effect.
Aren’t there also exclusions for cause by the prosecution and the defense though? I thought the prosecution and defense had both: a few peremptory exclusions (which they use carefully because they get a limited number) and some for cause as well. No? In addition to the judge’s exclusions, I mean?
It’s possible that there are variations between jurisdictions, but I know of no jurisdiction in which “for cause” exclusions are made by the parties. It’s up to the judge. The judge may do so herself, or at the request of a party (if the judge agrees that there is legitimate “cause”). There is no limit to the number of potential jurors who may be dismissed for cause (although it happens comparatively infrequently). The parties themselves may dismiss potential jurors “peremptorily,” in limited numbers. This, however, is not a “for cause” exclusion. Think of a “for cause” exclusion as a judicial determination that an individual is not proper as a juror for that case, for an identifiable, “objective” reason. A peremptory dismissal is more a subjective decision by a party that they just don’t want that person sitting on their case, even though there is no “impropriety” involved and the individual is otherwise qualified.
Many thanks for the clarification, Jeff.
I’m not sure I’ve been reading the same article as everybody else, because Ellis’s pronouncements didn’t strike me as being ‘a controversial but not falsified academic thesis’, but rather cobbling together a variety of sources, some clearly dubious, to support an agenda.
Once he has urged his reading list on us, he gets into full stride;
‘…a whole continent where the average IQ is 70. How is it possible for a people with such a low average IQ to achieve, let alone to sustain a technologically sophisticated civilization?…stupidity, superstition and random savagery …sexual incontinence…AIDS kills Africans because Africans refuse to act, or are unable to act, in ways which are sexually responsible…emotional parasites…get weepy about Africa’s self-inflicted plight. If Africans refuse to behave responsibly, they condemn themselves to death.
The BNP is the only party in this country that articulates the thoroughly justified hopes and fears of the white indigenous population regarding the legal/illegal immigrant invasion. Yes, in case it had escaped your attention, we are being invaded.’
And so it goes on, his rants at universities, the BBC, ACPO ( the police are anti-white, apparently) become increasingly foam-flecked. He uses ‘illegal’ as a noun, the surest sign of a twat that I know of, and urges that a process of ’rounding up’ should begin. His track record, which includes addressing a conference held by American Renaissance;
http://www.amren.com/
gives reason to doubt that he is simply presenting a thesis. as does the fact that; ‘seven of his former students complained in a letter to a newspaper that they “had to endure crudely ill-informed and offensive comments concerning the intellectual inferiority of black people and women during seminars”.
http://www.timesonline.co.uk/article/0,,2088-2104083,00.html
But above all, Ellis made his comments in his capacity as a professor at Leeds University, giving his pronouncements an academic gloss to which they were not entitled. He was asked to refrain from making further statements proclaiming the innate superiority of some races, or at least to make it clear that he was speaking in a private capacity.
The question is surely not ‘Has he the right to express his views?’ Of course he has. But there are two other questions; Has he the right to remain on the public payroll while expressing these views? and Is Leeds University obliged to continue employing someone who alienates students, thereby damaging them economically, and brings the institution into disrepute by associating it with shabby argument in a disreputable cause?
“The question is surely not ‘Has he the right to express his views?’ Of course he has. But there are two other questions; Has he the right to remain on the public payroll while expressing these views? and Is Leeds University obliged to continue employing someone who alienates students, thereby damaging them economically, and brings the institution into disrepute by associating it with shabby argument in a disreputable cause?”
1. Indisputably, Yes. Otherwise all we can expect from public employees is newspeak – is that what you want?
2. Seven students out of how many? How long has he been lecturing? I’ll take odds that more drop out from sheer lassitude than from taking a principled stand. There is a slew of academics teaching various science topics in UK universities, notably Leeds, who are ardent proselytizers of Creationism and Intelligent Design. Why are they exempt from PC witch hunts? Why? Because Voltaire got it right, and therefore Frank Ellis should be permitted his waywardness so long as he teaches his subject competently and doesn’t break the law.
MikeS
The two questions were genuinely asked, although of course my own view is implicit.
On question one, I’d say it is arguably yes, but not indisputably. I can see the problem with penalising controversial views ; it’s wide open to abuse, quite apart from increasing a culture of self-censorship. But I can also see instances where steps would have to be taken, an obvious example would be a senior official in the Immigration Service publishing extreme white supremacist views, a teacher who advocated teacher-student sexual relations as being ‘experiential’, a public health official who enthusiasticaly urged ‘Live fast, die young and have a good-looking corpse’.
Personally I don’t think the Ellis affair is extreme enough to make a good test case, but it does raise the question.
I think the second question is more relevant to the actual case. Why should a university continue to employ a liability who has repeatedly and forcefully repudiated the stated principles of that university? If it were a genuine academic debate it would be a different matter, but it isn’t.
On reflection I agree that the complaining students are barely relevant. It’s a small number and a fairly high profile issue, so no more than to be expected. But, however much I am assured that Ellis is meticulously fair to his students, I think I’d feel uncomfortable if I were an african student and my professor was forcefully of the view that africans as a whole wre subnormal and incapable of anything other than random savagery and sexual incontinence.
Impatient as I am with Creationists, it is really not the same thing. I might shake my head over reputable institutions hiring these people, but there can be no question anybody’s right to pursue their chosen field and publish results. A university would be obliged to defend that, however heated the debate. Ellis effectively published a political and racist manifesto cloaked in spurious academic authority.
I don’t think this is a witch hunt. Ellis chose to use his position to advance his political agenda. He was asked to stop and, apparently, declined.
Mike, please don’t wave Voltaire at me. Nobody is disputing his right to express his views, I just doubt his entitlement to use a publicly funded position of authority as a platform to do so.
OB, I don’t see how you get from Appiah’s comment, which is about speech as a means to commit various crimes, to this: “There is no freedom of speech right to make fraudulent claims; that means deliberate falsification of evidence is not protected free speech.” You keep saying that you want to separate the issue of the moral rectitude of speech — a dimension of moral right — from the issue of legal rights, but then you muddy up your own argument by mixing vocabularies. “Protected” comes from a legal vocabulary — I’m not sure what moral protection would even be. The extrapolation of a hired killer’s contract to the claim that, say, 200 000 people were killed in the Dresden bombing when most authorities say 75,000 people were killed in the Dresden bombing — to make this relevant to Irving – seems ruinous to the very business of investigating the truth, since it puts a fear into all investigators that error will be held against them, legally.
Let’s use another case. Page six of the NY Post is a gossip page. Recently, the police recorded one of the gossip columnists trying to shake down a billionaire mentioned on that page for payment in order not to be. The gossip — which may be true — is protected by free speech law. The shakedown – which may even depend on the truth — isn’t. There is an essential mismatch in your theory between truth, falsity and harm that makes it logically fragile.
MikeS. Interesting. Also – has the noted professor of linguistics Noam Chomsky, ever been cautioned by his employers for expressing his strident views and conspiracy theories on US foreign and domestic policy ?
“So demand to be treated like women”
Unfortunately there is a similarly driven group out to prove that women have lower IQs too.
MikeS. Notwithstanding my comments about leftist propagandists (including deniers of genocidal atrocities committed by Communist leaders accross the globe in the C20th) freely operating out of Universities, Ellis sounds like a twat, and I wouldn’t want a twat teaching me, whatever his beef. The arguments vis his sacking/suspension require greater refinement than that though, obviously which is where the rest of this post s coming from. Not surpirsed he’s at Leeds though. They’re all racist up there arent’ they ? ;-)
roger, I don’t think I “keep” saying I want to separate the issue of the moral rectitude of speech from the issue of legal rights; I said it several times in an earlier discussion, but now I’ve said something different. I still do want to separate moral from legal, but I was claiming there is also no such legal right. (And I was also asking questions about that issue during the last discussion.) I know “protected” comes from a legal vocabulary.
“seems ruinous to the very business of investigating the truth, since it puts a fear into all investigators that error will be held against them, legally.”
Well that (and similar worries) is why I said what I said about the state. Of course I don’t think the state should be vetting scholarship for falsifications. But – once such falsifications have been disclosed, I also don’t think they or their creator have a right to state protection. And the issue, remember, is not “error” but falsification. Irving lost the case because there was abundant evidence (obtainable only through an expensive process of investigation) that he had falsified the evidence. He wasn’t able to win the case anyway by claiming a free speech legal right to falsify evidence – because there is no such right. That’s all I’m saying. It’s not a moral right, and it’s also not a legal right.
Furthermore –
“The gossip — which may be true — is protected by free speech law.”
But is it protected if it is 1) not true and 2) demonstrably falsified? No, it’s not. That’s all I’m saying. You’re the one who’s muddying, I think, by apparently claiming I’m saying more than I am saying.
well this is all very interesting but what I want to know is which system are you using that lets you e-mail Charlotte and Jane? And do you get any replies?
Nonononononono, I said those other people who talk about Charlotte and Jane, meaning the whole point is that I nevernevernevernever talk about Charlotte and Jane, precisely because I don’t swap emails with them, nor have them over for wine and feta, nor go to high school reunions with them, nor ask them for advice, nor offer them recipes for thin gruel or burnt porridge.