This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.
Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.
We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:
-
Shaming.
-
Attempting to 'build consensus' or enforce ideological conformity.
-
Making sweeping generalizations to vilify a group you dislike.
-
Recruiting for a cause.
-
Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.
In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:
-
Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.
-
Be as precise and charitable as you can. Don't paraphrase unflatteringly.
-
Don't imply that someone said something they did not say, even if you think it follows from what they said.
-
Write like everyone is reading and you want them to be included in the discussion.
On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.
Jump in the discussion.
No email address required.
Notes -
Defamation Bear Trap
The legal field is filled with ad-hoc quirky legal doctrines. These are often spawned from a vexed judge somewhere thinking "that ain't right" and just making up a rule to avoid an outcome they find distasteful. This is how an exploding bottle of Coca-Cola transformed the field of product liability, or how courts made cops read from a cue card after they got tired of determining whether a confession was coerced, or even how an astronomy metaphor established a constitutional right to condoms. None of these doctrines are necessarily mandated by any black letter law; they're hand-wavy ideas that exist because they sort of made sense to someone in power.
I've dabbled in my fair share of hand-wavy ideas, for example when I argued that defendants have slash should have a constitutional right to lie (if you squint and read between the lines enough). Defamation law is not my legal wheelhouse but when I first heard about Bill Cosby being sued by his accusers solely for denying the rape allegations against him, I definitely had one of those "that ain't right" moments. My naive assumption was that a quirky legal doctrine already existed (weaved from stray fibers of the 5th and...whatever other amendment you have lying around) which allowed people to deny heinous accusations.
I was wrong and slightly right. Given how contentious the adversarial legal system can get, there is indeed the medieval-era legal doctrine of "Litigation Privilege" which creates a safe space bubble where lawyers and parties can talk shit about each other without worrying about a defamation lawsuit. The justification here is that while defamation is bad, discouraging a litigant's zeal in fighting their case is even worse. Like any other cool doctrine that grants common people absolute immunity from something, this one has limits requiring any potentially defamatory remarks to have an intimate nexus with imminent or ongoing litigation.
It's was an obvious argument for Trump to make when Jean Carroll sued him for defamation for calling her a liar after she called him a rapist (following?). A federal judge rejected Trump's arguments on the grounds that his statements were too far removed from the hallowed marble halls of a courthouse. Generally if you want this doctrine's protection, your safest bet is to keep your shit-talking in open court or at least on papers you file in court. While the ruling against Trump is legally sound according to precedent, this is another instance where I disagree based on policy grounds.
Though I'm a free speech maximalist, I nevertheless support the overall concept of defamation law. Avoiding legal liability in this realm is generally not that hard; just don't make shit up about someone or (even safer) don't talk about them period. But what happens when someone shines the spotlight on you by accusing you of odious behavior from decades prior?
Assuming the allegations are true but you deny them anyways, presumably the accuser would have suffered from the odious act much more than for being called a liar. If so, seeking redress for the original harmful act is the logical avenue for any remedies. The (false) denial is a sideshow, and denial is generally what everyone would expect anyways.
But assuming the allegations are false, what then? The natural inclination is also to deny, except you're in a legal bind. Any denial necessarily implies that the accuser is lying. So either you stay silent and suffer the consequences, or you try to defend yourself and risk getting dragged into court for impugning your accuser's reputation.
My inclination is that if you're accused of anything, you should be able to levy a full-throated denial without having to worry about a defamation lawsuit coming down the pipes. You didn't start this fight, your accuser did, and it's patently unfair to now also have to worry about collateral liability while simultaneously trying to defend your honor. Without an expansion of the "Litigation Privilege" or something like it to cover these circumstances, we create the incentive to conjure up a defamation action out of thin air. The only ingredients you need are to levy an accusation and wait for your target's inevitable protest. That ain't right.
And a crucial third ingredient: have the intended victim of this trap be Donald Trump. Other people in other situations, such as Hillary Clinton defaming the women who accused Bill Clinton of raping them, are not dragged into civil cases.
Are we to interpret this as a consistent principle that judges would apply to prominent Democratic politicians when they deny accusations? Or just a weapon to be used on Trump and then put away?
...none of which is Hillary clinton being sued for defamation for, to put it bluntly, calling the women accusing her husband of rape lying sluts.
In a '98 NBC interview she called the sexual assault allegations against her husband a "vast right-wing conspiracy".
This was in an NBC interview, not a courthouse (like Trump's comments), and appears to directly suggest that all of the women are liars, which appears at least modestly similar to Trump's supposedly-defamatory remarks.
Ultimately, I think I have to conclude that denying allegations should probably enjoy specific privilege from defamation concerns.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link