A more civil public discourse

16/10/2018

Sem 2 Wk 12

Xavier Boffa

As law students – future lawyers, advocates and lawmakers – we should be more concerned about the state of our public discourse. We should strive to be more decent, more courteous and more understanding. We should desire to lead by example by resisting the temptation to conform to the standards around us.

The reasons we should aspire to a greater level of civility speak for themselves. Aside from strong moral arguments in support of respect and toleration, there are many practical benefits to be gained.

The reasons we should aspire to a greater level of civility speak for themselves. Aside from strong moral arguments in support of respect and toleration, there are many practical benefits to be gained.

Since the horrific 2017 Congressional baseball shooting, the trend has only worsened. Who would want to contribute to public life when our political discourse has devolved to the point some feel disagreements run so deep they cannot be resolved without violence (such as the recent assault of Victorian MP David Southwick) and abuse? Who would want to be a public figure when you can’t even enjoy a precious moment with your spouse without being harassed, like Ted and Heidi Cruz, for holding different views?

We now live in a world in which the politics of hatred, envy and personal destruction seem to be overpowering reason, compassion and civility. Today, it appears that people are too ready to attack one another rather than engage with principles and ideas.

Worse still is the way that public figures’ families on all sides are vilified for political purposes. Nothing I can say on this point could be more powerful than the following contribution from former first daughter Chelsea Clinton in response to a cartoon featuring Brett Kavanaugh’s daughter: “If you can’t make your point about Judge Kavanaugh, whatever it may be, without bullying his kids, it’s not worth making.”

Chelsea Clinton has no doubt experienced what Liza and Margaret Kavanaugh are experiencing, but we don’t have to have experienced hurt to know that its cause is wrong. We don’t have to be parents to be appalled by the threats against Kora Hanson-Young. But too often, we get too caught up in impassioned debates to see the personal toll these disagreements can exact from others.

No victory or success, political or otherwise, is worth sacrificing one’s integrity and humanity. By this I mean, not only the quality of being honest and having strong moral principles, but also of being true to one’s own self.

The advice and consent process associated with the nomination of Brett Kavanaugh to the US Supreme Court highlights everything we stand to lose if things do not change. For me, one particularly jarring incident involved a group of organised protestors being led around Congress as they chanted and screamed abuse at Senators and congressional staff. As they were directed to stage sit-in of a wavering Democratic Senator’s office during a key vote, one woman can be heard asking: “Why? She’s on our side.” She was right to wonder about this use of political pressure.

The idea that we should demand strict adherence from our ‘allies’ speaks to a toxic win-at-all-costs mentality that has pervaded Western politics. This dangerous notion encourages people to be hardest on those with whom they have most in common, and validates the politics of thuggery and intimidation.

The root of this malaise is a brand of tribalism that forces people to choose ‘sides’ rather than empowering them to become politically engaged individuals. The result is a politics ruled not by conscience, but by a need to ‘beat’ the other team.

James Madison and Alexander Hamilton warned against the destructive role of factions over 200 years ago in The Federalist Papers. We must heed their warning. So, what can we do about it?

Firstly, we can heed Justice Elena Kagan’s advice to give others the benefit of the doubt. As any case involving the construction of an instrument will reveal, words often can be interpreted in multiple different ways. Whenever we interact with each other we can choose to promote understanding. We can remember that, in the immortal words of Jessie J, ‘nobody’s perfect’ and we can look for the good in others.

Secondly, we can learn from Justice Clarence Thomas’ wisdom by choosing to look beyond outcomes. We can instead focus on what Justice Stephen Beyer describes as listening better to better understand our common goals.

Thirdly, we can draw inspiration from the close friendship of the fervently ideologically opposed Justices Ruth Bader Ginsburg and Antonin Scalia. We should remember that, no matter how vehemently we disagree with one another, we all share a common humanity.

We will never live in a world in which all people agree about all things. We can, however, build a world in which peoples’ disagreements are civil and do not define their interactions with one another.

I can’t but think of some of the comments in response to recent De Minimis articles (1, 2) about the LSS ‘People of Colour Lunch’. We can and should do better; not only in politics, but also in how we conduct ourselves throughout the course of everyday life. We (myself included) can be more generous, more civil and more compassionate. At a leading law school, we can lead by example.

16/10/2018 08:12:25 pm

From memory, Heydon J lost on this point in Coleman v Power.

Xavier Boffa

17/10/2018 09:17:33 am

I actually identify more with Callinan's reasons in Coleman, but you're correct: both he and Heydon wrote in dissent. I do, however, agree with Heydon that: "[i]nsulting statements give rise to a risk of acrimony leading to breaches of the peace, disorder and violence." When individuals use violent rhetoric, they should be live to the reality that this can give license to violent action. Repeat 'Xavier Boffa is a bad person' enough times and eventually someone might feel justified in causing me or my loved ones physical harm.

Is it that easy?

16/10/2018 08:20:13 pm

I think you raise some really good points, but I also think it's easy to be civil when you're not the one on the receiving end of systemic oppression and abuse. To have to deal with sexism or racism every day of your life wears you down, and at some point it isn't about some higher principle or ideology - it is your life. Maybe think about why people aren't civil - did anyone listen when they were?

Whatever

16/10/2018 09:14:35 pm

Who are you kidding? You went on The Bolt Report to spread an inflammatory message about life being unbearable as a conservative in a liberal university. You had no qualms about defaming your own university. And now here you are preaching civility. Practice what you preach.

16/10/2018 09:44:31 pm

Nothing about it was inflammatory or uncivil ? He was merely expressing an opinion about what happened? I'd say your comment amounting it to defamation is inflammatory... and the very kind of hyperbolic talk this article is talking about in debates..

17/10/2018 09:19:23 am

Hi 'Whatever', you may not have watched the full interview, but I was actually asked to appear on The Bolt Report to discuss an article which joked about killing 'Liberal' students at the University of Melbourne. I think it's entirely consistent for me to write about why we should deplore hate speech and incitement, and for me to have condemned that article.

Further to your point, I do think it's inappropriate for a lecturer in a compulsory subject to tell students he'd turn them into Marxists - for *some* of the same reasons that the 'it's okay to be white' movement is problematic. The implication is that being non-Marxist (or non-white) is somehow not okay. It also gives social license to those who would marginalise centre-right students (or people of colour) in the way the Farrago article did.

17/10/2018 11:04:26 am

I don't agree with Boffa's worldview in the slightest, but how was his statement on the Bolt Report in any way defamatory?

That's a big call buddy

Max

16/10/2018 09:26:23 pm

Great read, Xavier!

17/10/2018 09:18:12 am

Thanks Max!

Barry link

16/10/2018 09:50:42 pm

This article reeks of ignorance and privilege on so many levels.

It is blindingly obvious when someone preaches civility with zero contextual understanding of political adversity.

The author is conflating political agitation with the inciting of hate, overlooking the fact that for many - political reality is oppressive, denying those experiences, and undermining the legitimacy of agitation as an important tool for change.

When you have had reason to hate, and are able to choose not to, then maybe your opinion on civility might offer some value.

Appealing to our common humanity isn’t going to work when you are subject to a complaint of verbal harassment at a student liberal club event:

https://www.smh.com.au/national/young-liberals-fight-causes-young-woman-to-seek-intervention-order-from-police-20171012-gyzxen.html

17/10/2018 09:20:57 am

I was exonerated by the University, the Courts and the Police, so I don't know what more you want from me. People do occasionally make false allegations for political purposes. I don't expect you to believe me. I, however, happen to agree with Justice Kagan that we can and should choose to give others the benefit of the doubt. I also happen to agree with Blackstone's Ratio. I've tried to do a positive thing by writing about tolerance and compassion. I've tried to practice what I preach by engaging constructively with commenters on articles I've written. I can't control how you choose to read what I write.

States' Rights?

16/10/2018 09:55:15 pm

I may not disagree with your overarching point, but I certainly do have qualms with how you have presented it.

The six examples of political victims of invective (physical or otherwise) that you have provided fails to be an accurate representation of partisan agitation. There is one reference to an Australian Greens senator, sure, but that must be weighed against one reference to a member of the LNP, three members of the US Republican party (US), and your final example that broadly concerns those who were willing to confirm Kavanaugh, which almost overwhelmingly fell along partisan lines.

How can you write about the ad hominem attacks involved in the Kavanaugh hearings without mentioning that Christine Blasey Ford still cannot return home due to fears for her family's safety? Or James Royal Patrick Jr, a 53-year-old man from Florida who was arrested for threatening to kill anybody that voted against his confirmation? What about the death threats sent to Indigenous Greens MP Lidia Thorpe about her comments concerning Australia Day? How about Labor MPs Rita Saffioti and Tony Buti? The murder of Jo Cox in the United Kingdom?

This is not simply a case of cherry picking or whataboutism. It is a notable omission which frames a dangerous false equivalency; one which portrays the actions of anti-fascist groups as morally equivalent to the fascists they seek to rebuff, and that broadly translates into the narrative that the left is as culpable for societal divisions and brazen partisanship as the right is. That same narrative is then used to justify further restrictions to civil liberties, which are often implemented selectively and preferentially.

The weaponisation of racial and ideological dog-whistle politics is certainly not a normally distributed phenomenon across the political spectrum in liberal democracies, and neither are more subtle yet equally pernicious techniques of suppression and disenfranchisement, such as gerrymandering, voter identification laws and roll purgers. Certain groups have been particularly fruitful at cultivating messages of fear and 'boogeymen' - across all intersections - in order to gain and retain power in the form of electoral or policy success, and it is disingenuous to paint the flow of those messages as anything close to a two-way exchange.

Part of the reasons behind this are structural (for example, right wing 'small government' believers, such as the libertarian and tea party ideologues you have identified have less incentive to maintain the strength of political institutions and civic discourse), but part are cultural, insofar as it is nearly impossible to achieve a solution if we continue to misdiagnose the problem. Whether Michelle Obama is cutting off the Democrats' nose to spite their face when she said that 'when they go low, we go high' is beside the point; the better approach is to be comparative and ask whether you could picture Mitch McConnell not only saying it, but meaning it. As you correctly identify (albeit somewhat implicitly), political ruthlessness leads to the degradation of institutions and civic society, and when citizens treat politics like a game of football, bad things happen; my contention is simply that the culpability for such hyperpartisanship is far from equal.

As I said at the start of my comment, I don't necessarily disagree with the tenor of your argument - assault, hate speech, and general physical intimidation are not acceptable no matter your political sympathies. Ironically, the fact that (after some introspection) I am choosing to post this anonymously is, if anything, testament to your underlying claims about the chill to civil discourse which is created by the proliferation of politics of derision and hate. Ultimately, though, if your belief is that the political discourse should be decoupled from the politics of the person, then in principle you should find no issue with my decision to remain anon. Hopefully this has given readers something to consider.

hear hear

16/10/2018 11:47:36 pm

Could not agree more.

Cherry picking examples of contemptible behaviour and painting a picture of equivalency does nothing to address the underlying cause; rather, it just masks it.

Also, serious question: how does one civilly engage with people who cheer for due process for someone going for a job interview who has been credibly accused of sexual assault, but then in the same breath chant 'lock her up' in reference to someone who has not been convicted or accused of any crimes.

People

17/10/2018 12:14:46 am

'who has been credibly accused of sexual assault, but then in the same breath chant 'lock her up' in reference to someone who has not been convicted or accused of any crimes'

In this statement, you display your partisanship.

The credibility of Ford's testimony is arguable. So is the criminality of the Clinton couple over the last 20 years.

Engage by having a discussion. That's all. You may not come out respecting the other person, but engaging is easy enough.

17/10/2018 09:23:25 am

Hi 'States rights?', this is very valuable and comprehensive feedback, so thank you for taking the time to write (even anonymously). I wanted to respond to give you more insight into my writing process - not necessarily to disagree with you (so please take the below in that spirit!).

One overarching comment I have to make is that I don't disagree on many points, but perhaps chose to prioritise my limited word count slightly differently.

For example, my focus on current US politics might be a reflection of the fact I'm going to the States over the break as part of the UCWIP (and maybe don't want to be assaulted for disagreeing with someone!). I did deliberately try to include the reference to Senator Heitkamp to address (perhaps insufficiently) the concern you raise, however. I hadn't heard of James Royal Patrick Jr, but I agree that would have been a worthy inclusion that brings us to the same conclusion.

I should also point out that I picked Kelley Paul's article because 1. I think it's incredibly well-written, 2. I wanted to include the voice of someone who has been exposed to incivility because of her husband's vocation rather than her own, and 3. (as a man) I want to actively include the voices of women in my writing.

I picked the Ted and Heidi Cruz example because that sort of incident is exactly why I would never want to seek political office. I genuinely mean it when I say that those family moments are precious, from my perspective.

I chose Chelsea Clinton's tweet for a combination of the above reasons. 1. I would never want to expose my children to the vitriol she's experienced (same reason I chose the example of Kora Hanson-Young). 2. She is a Democrat. 3. Another opportunity to include a woman's voice.

As to fascism/anti-fascism, I didn't necessarily intend to comment so it's genuinely interesting to me that that was a takeaway for you. My grandparents lived under Fascism in Italy, so my view of fascism is shaped by their lived experience. I cannot but view fascism through the lens of Mussolini's subversion of individual rights, particularly property rights, because that's what it meant to my Nonna.

I certainly didn't set out for this to be a critique of one side of politics (hence my decision to steer well clear of Eric Holder's recent commentary and the doxxing of Republican Senators by a former Democratic staffer). That said, it's admittedly difficult for anyone to fully detach their writing from their worldview and I am always striving to write in a way with which a greater number of people are able to identify. One of the reasons I am a federalist is because I believe that federalism is the best way to disagree civilly.

Should civic discourse be decoupled from the politics of the person? I don't think so. But we would all benefit from helping each other engage in that politics in a more civil manner.

Pauline

16/10/2018 10:23:02 pm

ITS OKAY TO BE WHITE

yeah

17/10/2018 08:42:41 am

And orange. It's okay to be orange.

Lucas

16/10/2018 11:45:33 pm

You seem to assume that, in the halcyon days of yesterday's politics, the political arena was something other than a blood-ring dependent on character (and other kinds of) assassination for its continued day-to-day existence.

2017 is a seriously interesting place to pinpoint the beginning of the end of civil discourse in politics, as if it hasn't been common for centuries, probably even millenia, for leadership candidates across the world, including in the US and Britain, to regularly spout vile insinuations about each other, which end up being the tuning fork for political discourse in any given country.

There was no era of glorious, high-brow political discourse that was any more or less civil than ours today. Sure, you're striving for an ideal, and I accept that. But it's dishonest to say we've strayed from some kind of noble tradition of civility when the political discourse of most Western countries has for centuries been some variation of lynchings (USA), genocide (Germany; any colonial establishment), enslavement (USA, Europe, Australia), eugenics (countless notable figures), sectarian conflict (Ireland), race-baiting (Australia), violent xenophobia resulting in domestic and international violence, revolutions, and, of course, assassination of character and of physical person.

Don't read me wrong as saying politicians are bad. Politicians are people, and like us, they embody within themselves and as a collective the best, but mostly the worst in us. There's your recognition of common humanity.

But we aren't straying from some grand old noble tradition that's been undertaken in the great halls of the Academy, Oxbridge or the Ivy League. For some, purely civil discourse has been totally sufficient to achieve their political ends. Many others cannot achieve what they desire without it necessarily requiring something more, and the proof is in the bloody, bloody pudding of history. Political victory often necessarily comes part-and-parcel with the sacrifice of one's own humanity. Your assumption that politics in the past broadly operated on a basis of an embrace of (and desire to maintain) one's own (or anyone's) humanity, from which we are now straying, is demonstrably wrong.

(I'd also add that it's questionable to assume that in the "old days" politicians cared very much about integrity or humanity... Again, either their own or anyone else's... and only now have they stopped).

We don't "now" live in a world in which the politics of hatred, envy and personal destruction reign. History tells us that we basically always have, because politics is a fucking high-stakes contest of ideas as well as a contest of power.

Also, "choosing sides" and "tribalism" are not the same thing.

But either way, politics has, including in the grand old days of yore, been about choosing sides (that is, when and for whom 'choosing' has been an option). The actual act of democracy comes down to the choosing of a side. But practical realities have been the cause of a politics of "needing-to-win", and I have no doubt that "successful" (in the loose sense of the word) political operatives like Lenin, Louverture, the nauseating number of 'whips' that have ever existed, and even the comparatively puny Mitch McConnell (whose been pulling his shit since well before 2017, and who may have just peaked by getting mentioned in the same sentence as Toussaint Louverture) would agree.

"Dirty" politics has always been a part of politics. Your assertion that we have strayed from a civil political tradition is not correct. That same 'civil' discussion can be had in the same places and with the same people that it always has been. But it will also exist side-by-side, as it always has, with the muck of 'uncivil' political discourse. Politics gets done in different ways because people have to do it in different ways. Realise that appeals to traditions and histories of 'civil' discourse may as well be malpractice in the field of history, accompanied by a blindness to it that is disoriented to the point that (and I mean this literally) it physically feels somehow 'lost'.

17/10/2018 09:37:30 am

Hi Lucas, thank you for taking the time to so comprehensively.

Like other replies, I wanted to respond to give you more insight into my writing process - not necessarily to disagree with you (so please take the below in that spirit!).

I think the central point I would like to make is that my article was not intended to be a reflection on history. I don't disagree with many of the points you raise on that subject. I didn't set out to argue that there has ever been a state of perfect civility in politics (but to be constrained by history would be to fall foul of an is-ought fallacy).

The article is prospective and aspirational. I agree that, for some, civility may be or may appear to be a luxury they cannot afford. Those of us in positions of power and privilege can help create a world in which incivility is nobody's only option.

I do think, however, that the Trump era is more fulled by hatred than, for example the 2008 election of President Obama on a message of hope and change.

My use of the phrase: "Since the horrific 2017 Congressional baseball shooting, the trend has only worsened" was not meant to suggest that I see this as some significant turning point in history. I chose that example because I think it is good illustration of the thin line between political rhetoric and hate speech and actually violence.

dear oh dear

17/10/2018 05:51:47 am

The cherry-picked examples are awful!

Reminds me of that 'great' quote:

“You had some very bad people in that group. But you also had people that were very fine people, on both sides."

17/10/2018 09:29:12 am

'Dear oh dear' you might be interested to my reply to 'States' rights?' above re the examples used. I don't think I set out to criticise one side of politics with this article and I would encourage you to read it again without reading too much into the choice of evidence (see above response).

choose the right examples

17/10/2018 08:20:55 am

Who chose the picture accompanying the article? Was it Xavier? Way to go for a subliminal message. Trump is the one person who does not understand the concept of civil discourse. Perhaps one might be served well to be reminded of the time he mocked a journalist with disability. Or that other time he mocked Dr Ford - that too after first calling her a credible witness. Judging by Trump's standards 'Fuck Trump' is less an insult and more just wishful thinking.

17/10/2018 09:26:35 am

You'd have to ask the DM editorial staff, because that was a staff decision. I contributed the words only. I don't disagree with you.

Lawrence Bradford

17/10/2018 09:16:21 am

Boffa Deez aha

Fortune favours the bold

17/10/2018 12:15:16 pm

Arguments yearning for civility inherently benefit the status quo - history is strewn with examples of people whose causes achieved nothing until they got radical and uncivil (ACTUP and Stonewall; the US civil rights movement and anti-apartheid campaigns; suffragettes like Emily Davison). If people keep to their station and meekly request some improvement to their lot, the powerful have no incentive to change a thing. As you've recognised in the comments Xavier, civil discourse is a privilege that some cannot afford. It is also consistently invoked to justify and enable the rising far-right. I think your article has disregarded the fact that notions of civil discourse are beneficial to some and detrimental to others.

2/11/2018 11:20:56 am

Hi 'Fortune',

As you mention, I will readily acknowledge that this is a fair argument. Where our views may differ is in how we approach addressing the issue.

I believe that the right course of action is for those empowered to engage in civil discourse to strive to ensure that all members of society have similar recourse to civil means of addressing their unique challenges and grievances.

Those who have the benefit of effective avenues of civil advocacy have strong reason to ensure that those channels are open to others in what they stand to lose when people are forced to resort to uncivil means. Championing and empowering the marginalised to participate in public discourse is the logical extension of our system of laws if we are to avoid anarchy and mod rule.

As a side note, I also think it's worth pointing our that, to my mind, there is a difference between civil disobedience and the kind of incivility I'm concerned with. One illustration might be the difference between Claudette Colvin's/Rosa Parks' protest of Jim Crow laws and the rhetoric of NOI advocates (e.g. consider the rhetoric of '50s Malcolm X alongside his public killing in '65).

Fortune

2/11/2018 11:46:30 am

Sorry if I misinterpret you (I read over that third paragraph about six times in the hope I won't) but were you suggesting that it is in the interests of the centre left to encourage the far left to engage in this notion of civility because the alternative is that the far right don't engage in civility (and the historically shown extension of that)?

That was a confusing sentence and I apologise, I guess the point is that I couldn't avoid the feeling that the undefined 'marginalised person' in your response is a far right person denied the feeling of inclusion in the political process. I'm just after some clarity

2/11/2018 12:36:27 pm

No need to apologise! It may be unclear because you're searching for meaning that isn't there?

I didn't have the marginalisation of any particular political group in mind, so if I was suggesting anything it was that we all stand to lose in a race to the bottom.

When political leaders resort to ad hominem and ridicule their words have consequences. When we see each other as motivated by 'evil', when we become unable to regard each other as sharing a common humanity, we give license to the treatment of those we disagree with as inferiors.

We shouldn't dehumanise people for holding different views, just as we shouldn't dehumanise them for being different (e.g. racism, sexism, homophobia, etc.). To my mind, uncivil discourse encourages this dehumanisation of others (consider the absolutes all sides speak in when talking about those they disagree with).

Stalking politicians and screaming at them while they have dinner is not a legitimate means of resolving policy differences - whatever those differences are, whoever those politicians are (left or right). We wouldn't resolve a political disagreement with a friend by screaming at them, so why is it okay to do so to a stranger?

2/11/2018 01:28:07 pm

Okay. Thanks for your response. We'll never agree, so I'm gonna focus on consti

2/11/2018 01:42:51 pm

Fair enough and you're welcome! In any event, I think total agreement between any two people is incredibly rare and not inherently all that desirable - understanding is far more important. Thanks for commenting and good luck with Consti!

credit where credit's due

17/10/2018 06:56:05 pm

Xavier!

I am impressed with the quality of your responses in this comments section: this is a much better attempt at engaging with the commenters than in the previous article Feeling Inferior.

I still don't agree with your weltanschauung, but I am perfectly happy to acknowledge that I find your responses a lot more reasonable.

I still would have liked to know your response to the very last comment on Feeling Inferior by HELLO XAVIER! - especially because the links to the two articles contained some interesting points about the whole Kavanaugh situation.

Have a good day! :)

2/11/2018 01:06:52 pm

Thank you for the incredible generosity of this comment and for taking the time to seek better to understand where I am coming from!

I'm 22, imperfect and I don't have all the answers. In writing some of my thoughts for De Minimis, I set out to gain a better understanding of myself and others. It's necessarily a learning experience, which I hope will be defined by growth and improvement.

As far as my response to 'Hello Xavier', I have a few thoughts:

I didn't set out to come across as defensive or dismissive. Instead, I was hopeful that people might better understand my perspective. That is, that I care so much about the falsity of the picture painted of me because it is so antithetical to what I actually believe and care about. Sadly, as I pointed out above, a reality of communication is that you can't control how other people interpret your words. Tone is also harder to convey in writing.

As is hopefully evident from this article, I am much less interested in politics than I am in political philosophy (and primarily its intersection with legal theory). Why anyone would want to be part of a political class defined by tribalism and one-upmanship is beyond me. Rather than seeing it as political, I would encourage people to read my work for what it is: a philosophical exploration of my own thoughts and feelings about the world at this point in my life.

The Kavanaugh confirmation is a subject I have deliberately avoided discussing in any great depth because I found the whole saga to be deeply upsetting. My reference to it in this article was intended to be purely about the behaviour it prompted, rather than about the merits of the issues. I again refer to Ben Sasse: https://youtu.be/6bcWvixc_BU

Scott

19/10/2018 12:20:27 am

I sense the good intentions of this article, but I fear there is a deeper and inescapable contradiction at the heart of this civility prescription.

You ask for two things: respectful debate, and that people respect the opinions of others. These are frequently incompatible. It may be that truthful and necessary criticisms of a particular person/institution are considered uncivil or offensive. For example, criticism of religion is consistently considered to be hateful and prejudicial. Suggesting that Islam is a dangerous belief system could, under your view, be both unacceptable hate speech and an opinion worthy of being listened to and understood. I don’t think you can always separate the mode and content of speech, e.g it is difficult to see how you could ‘civilly’ suggest that we re-introduce racial segregation on the basis of white supremacy.

I’m certain that you’re aware that different views are offensive to different people. I think a perfect civil discourse is therefore effectively impossible. It seems that your concern is less with impoliteness and more with “attacks” which you have improperly conflated with speech. Threats of violence, intimidation and harassment are not ‘discourse’. My sense is that your concern is focused on dirty tactics which obviate conversation for political reasons, rather than mere uncivility. I think we should focus on distinguishing legitimate speech from harmful measures such as threats, rather than expect that all political discourse should be like a conversation on Q&A. While I have personally written that people should favour debate over name-calling, it is up to individuals to decide how to effect political change within the law.

2/11/2018 12:06:10 pm

Scott, thank you for taking the time to write - I broadly agree with much of the content of you reply, but my view perhaps differs on how we define incivility.

I believe that we should approach the vast majority of human interaction charitably. That is to say, as alluded to by Justices Kagan and Breyer, that we should give each other the benefit of the doubt and choose the least offensive interpretations of disagreeable speech unless given reason to do otherwise. For this reason, we shouldn't punish speech that is merely taken to be offensive. So on this we seem generally to agree.

However, while I agree that threats, intimidation and harassment are particularly problematic, I would characterise my concern as extending to conduct that is merely 'nasty'. For example, speech that is deliberately hurtful, aggressive and/or intended to upset (concepts captured by 'offense'), but might fall short of harassment (unless construed broadly).

I think there's a meaningful difference in how we respond to views we disagree with. To take one of your examples, we can call a white supremacist a 'Nazi' or accuse them of being 'evil' (probably not responses that conventionally would be considered harassment), or we can offer a reasoned refutation of their position. I take issue with the former approach and prefer the latter. Name-calling and ad hominem do not contribute to meaningful debate and can encourage hatred, antipathy and even violence (yet few would call name-calling 'hate speech' and most politicians and commentators frequently engage in this kind of ad hominem).

Critically, I also think we can respect a person's right to hold a different opinion without needing to respect the opinion itself. I'm more concerned with respect for the right of civil disagreement than with respect for the content of different viewpoints (i.e. I can think someone is wrong, but I can respect their right to be wrong so long as they aren't harming anyone). Respectful refutation of opinions that are wrong is a mark of respect for the rights of others to be wrong and a mark of respect for, and confidence in, our belief that they are wrong.

Callinan’s White Industries

19/10/2018 10:53:43 am

Hey Xavier,
First off, please stop coming across as a reasonable and thoughtful Tory. Us progressives can’t handle having our caricatures challenged. Not fair. Totally inconsiderate.

Second, and seriously, are you familiar with any of the empirical work suggesting that when we hear opposing points of view we actually double down on our pre-existing beliefs? Possible to square that with your prescription for civil discourse?

2/11/2018 12:20:43 pm

Human beings are hard-wired to utilise bias as a tool to more efficiently process information - so your premise has some real weight.

We should engage in public discourse to promote understanding of one another, rather than to attempt to persuade one another to change our worldviews (a much less achievable end).

Politics is effectively polity-wide negotiation. Adopting an interest-based approach to this negotiation requires all sides to seek to understand what motivates one another in order to identify potential areas of consensus.

If we believe that laws derive their legitimacy from consent (which I do), then we must be committed to consensus-building.

Proudly Anonymous

22/10/2018 11:45:07 am

With reference to the mention of Brett Kavanaugh in the comments of this article and of Xavier’s previous article ‘Feeling Inferior’, I urge people to watch John Oliver’s interview with Anita Hill:

https://www.youtube.com/watch?v=dHiAls8loz4

This is from before the hearings related to Dr Ford.

I was bitterly disappointed by Xavier’s lukewarm response. It’s great to have a civil discussion, but what’s the point if you can’t stand up and speak for what is right?

2/11/2018 12:13:33 pm

Thanks for sharing that interview!

I found Senator Ben Sasse's floor speech post-Kavanaugh confirmation to be insightful: https://youtu.be/6bcWvixc_BU

2/11/2018 12:44:44 pm

Also, I should point out, I'm sorry to have disappointed!

Nonetheless, insofar as disappointment implies some degree of hopefulness, I'm flattered to have been worthy of being the subject of disappointment.

ANONYMOUS

5/11/2018 09:07:38 am

Hey man!

I appreciate you taking the time to respond to everyone’s concerns. It is a rare thing indeed. With that in mind, I would like to give you some context about my bitter disappointment.

I am a migrant who comes from a poor country with a kratocratic government. The people in power like to pretend that they believe in transparent democracy when it’s an open secret that they don’t. There was a really influential politician (let’s call him X) was considered untouchable. He was actively religious and held a strong appeal for his religious base. He was an expert at ‘advocating’ their causes. Long story short, his record on what Australians call ‘women’s rights issues’ was very poor. He was only one such politician out of many. A sizable portion of the electorate supported them all.

One day a sex worker appeared on the scene accusing X of hypocrisy as he had been utilising her services. According to her accusations, X was a regular customer of hers and had been exploiting her and her business for his own benefit. X’s base felt concerned. X resigned from parliament. Things calmed down after a while. Turns out that the concerns felt by X’s base were only temporary. Then one day people noticed that the sex worker has disappeared without a trace. Belonging to an extremely socially conservative society, people couldn’t muster enough sympathy for ‘a woman who sold her body’. No one pursued her case. It’s hardly a surprise that X returned to parliament and continued his abysmal repression of women.

This is an extreme example. But remember that it happened in a poor country with a kratocratic government. The premise is still the same as in the Kavanaugh confirmation: a woman’s accusations were not taken seriously by those who cared more about their political and social agenda than about the injustice to the victim. The fact that this premise holds true even in proud Western democracies is the source of my bitter disappointment.

True that the confirmation hearings are not court hearings, so one can’t say with certainty what has or hasn’t been proved. But by the same token, one need not apply the ‘beyond reasonable doubt’ standard of proof. Ford’s testimony was compelling whereas Kavanaugh’s response was neither compelling nor appropriate. Considering that at stake was a lifetime appointment to make crucial legal decisions, the matter should not have settled as it did.

Thanks for the Ben Sasse video. I feel like I have just watched 18 minutes and 25 seconds of a lesson in ‘how to please all sides while not addressing the core issue’. By Australian standards, I might pass as a conservative. But some things are wrong simply as a matter of principle. The Brett Kavanaugh confirmation was one such occurrence. If one finds that the accusation is credible, one cannot then reward the accused with a lifetime appointment on the highest bench in the hierarchy. One cannot sympathise with both the accuser and the accused if one claims to believe the accused. One cannot have it both ways.

And just a minor correction: the speech is from before the confirmation vote. This is evident from the date the video was published as well as from what Ben Sasse says himself.

Since I have written a whole essay already, I might as well bring something else to your attention. I like my online anonymity. Your remarks on this subject in your previous article’s comments were a bit concerning for me personally. I understand that it must be excruciating to be attacked anonymously, but removing anonymity would take away my voice. I would not have been able to share my thoughts, which (I sincerely hope) have not offended you in any way. I have told the above story in a manner which makes it difficult to identify the location. Those events could have happened in a number of countries. But if I were not anonymous, I would definitely not feel safe in saying what I have just said. Please take the online anonymity thing as a part of the package.

It is also a huge pity that there are large number of people who hold views similar to mine, and belong to corrupt and repressive regimes, yet they get locked up in indefinite detention by Australia when they try to escape. Xavier, you and I probably differ on many issues, including this one, but I hope that one day people realise that accepting others for the sake of humanity and common decency pays far more dividends than bombing democracy into people, as one mighty US president decided to do.

(technologically challenged) anonymous

5/11/2018 09:09:32 am

I just realised that I should have replied to the PROUDLY ANONYMOUS thread. But, oh well!

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