Volume 54, Issue 2

Freedom of Speech, Liberal Democracy, and Emerging Evidence on Civility and Effective Democratic Engagement

On January 8, 2011, a mentally disturbed man opened fire on Congresswoman Gabrielle Giffords at her “Congress on Your Corner” event. Six people died and several others, including the Congresswoman, were seriously wounded. In the aftermath of the tragedy, a renewed call to more civil political discourse arose, followed immediately by strenuous objections to this call on constitutional, political, and practical grounds. In this Article, we address these objections and conclude that none is sufficiently compelling to derail a civil political-discourse project.

We argue that the more important issues are whether, and how, incivility in political discourse poses a problem for democracy. Facts matter in the debate about what consequences may flow from how we “talk politics.” This Article analyzes the emerging data about the nature, causes, and consequences of incivility in modern political discourse. As we explain, the currently available empirical evidence is inconclusive on many specific points. However, it does suggest that some types of incivility, in certain contexts, may cause harm to democratic engagement and governance. At the same time, empirical evidence gives the lie to claims that perceptions of incivility are either completely idiosyncratic or completely determined by political partisanship. Research suggests a fairly substantial consensus among citizens and between citizens and researchers about what “counts” as political incivility. We therefore suggest preliminary steps that might inform a civil political-discourse agenda that respects the enduring value of full-throated freedom of expression. We also identify empirical research questions that must be answered if we are to assess the accuracy of the explicit and implicit behavioral assumptions underlying current legal and political debates about civil discourse.

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On Hubris, Civility, and Incivility

Hubris, excessive confidence in one’s own views and conclusions, is a dominant human trait. It comes in many guises and defines common patterns of mistakes. This Essay examines several potential meanings of the terms “civility” and “incivility” when hubris influences decisionmaking. Groups in society primarily use the labels “civility” and “incivility” to determine participation in decisionmaking processes. The labels effectively function as exclusion instruments, although they create the appearance of inclusiveness and openness to contrarian views. The Essay describes the role of hubris in establishing conformity in groups through the use of “civility” and “incivility” norms. The Essay argues that reliance on the labels “civility” and “incivility” could exacerbate group vulnerability to follow the hubris of individuals, and therefore to err.

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Rhetorical Capture

“Rhetorical capture” refers to a form of discourse using conclusory labels. Forms of rhetorical capture include begging the question, capture by antithesis, capture by substitution, and capture by assimilation. Begging the “baseline” question has been especially prevalent in legal and political discourse; for example, the assertion that antidiscrimination rights “take” the property rights of owners who wish to exclude assumes a baseline that the owners had the right to discriminate in the first place. Capture by antithesis or substitution is also prevalent, as in “war is peacekeeping” and “attack is defense.” Another form of rhetorical capture, capture through assimilation, occurs when a word bearing culturally good connotations is applied to a practice that may not warrant those connotations—for example, the assumption that receiving a set of fine-print terms divesting important rights from an unknowing consumer is “freedom of contract.” When rhetoric displaces reasoning in matters important to democracy, democracy suffers.

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The “Civil” Courts: The Case of Same-Sex Marriage

This Essay argues that the embattled movement for civility in public discourse should direct its attention toward the perceived harms of civility, rather than the perceived harms of incivility. The alleged harms of civility include the views that civility harms adherents, that civility honors the dishonorable, and that civility impedes authentic engagement. Examining the case of same-sex marriage, this Essay shows that these perceived harms were surmounted in the counterintuitive context of civil litigation. It remains unclear whether the civility of the courts can be replicated in other forums. Nevertheless, this case study demonstrates that none of the harms associated with civility necessarily attends it.

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J. Byron McCormick Society for Law and Public Affairs Lecture

This is in many ways a very difficult time to talk about broken or dysfunctional government because we face as serious a set of short-term and long- term challenges as I think we have seen in our lifetimes.

In the short run, we continue to teeter at the edge of an economic abyss and are looking for ways to get out of our economic ditch. We clearly need something that observers increasingly say requires a jump-start, whether it is by the Federal Reserve (“Fed”) or even more, as the Fed has indicated their weapons are limited, through the rest of government and fiscal policy, to get us out of what is clearly not a typical recession. Economists have indicated very clearly— especially Carmen Reinhart and Ken Rogoff, in their magisterial book, This Time Is Different: Eight Centuries of Financial Folly1—that when you are in this kind of a downturn caused by a financial crisis, you are not going to explode out of it in a year or two, as inventories are depleted and everybody is ready to start again. You have this enormous period of time when individuals, businesses, financial institutions, and even governments have to deleverage—the worst possible thing to do when you are trying to jump-start an economy. The lost decade in Japan is the best example of how difficult that can be.

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Retaliatory Forum Closure

The recent Occupy Wall Street and Tea Party movements highlight the importance of preventing unconstitutional government interference with disfavored speakers. Perversely, officials seeking to prevent such protests while evading viewpoint- discrimination lawsuits can elect to simply close forums in which speech would otherwise be expressed. Holding that all speakers are equally affected, courts have generally allowed such actions. In other contexts, however, courts have rejected this rationale under the First Amendment retaliation doctrine. Despite a facade of facial neutrality, retaliatory forum closures specifically harm targeted speakers by making them the object of community scorn and by disproportionately obstructing their viewpoints. Also, retaliatory forum closures usually stem from governmental errors in the design or maintenance of a forum. To address these issues, this Note extends First Amendment retaliation jurisprudence to the forum-closure context by creating an action for retaliatory forum closure and then examines how this action corrects the problematic results of previous retaliatory forum closures. Consistent with First Amendment policy, this would protect disfavored speakers and give the public a greater opportunity to interact with a wide spectrum of viewpoints.

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Madness and Mayhem: Reforming the Mental Health Care System in Arizona

Neither state nor federal laws adequately protect the mentally ill in Arizona. Although the Arizona Supreme Court ordered the state to establish a comprehensive mental health system in 1989, this vision has never been fully realized. When the state plays multiple roles as the lawmaker, provider, and financer of mental health services, state courts have limited power to compel the financially distressed state to live up to statutory obligations. On the federal level, the U.S. Supreme Court instructed the judiciary to defer to states’ distributive decisions with respect to their resources, thus permitting states to commit minimally to the mentally ill. Because litigation under the current legal framework is not an effective vehicle to advance the interests of the mentally ill, an alternative solution is to integrate Arizona’s carve-out mental health services into the primary care system. An integrated mental health system has the potential to improve patients’ overall well-being and reduce the long-term social and medical costs associated with inadequate mental health services.

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In re Estate of Riley: Protecting Beneficiaries’ Rights in a Probate Estate

In In re Estate of Riley, the Arizona Court of Appeals held that state probate law requires a compromise agreement that affects the distribution of an estate to be executed by all beneficiaries and interested persons. This Case Note discusses the court’s decision and rationale, and explores its implications for probate law in Arizona, including increasing costs, opportunities for abuse, and contraventions of the law’s intent. It also proposes legislative solutions that may accommodate the Riley court’s interest in protecting beneficiaries’ rights in an estate while mitigating some of the implications of the decision.

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The Politics of Incivility

The Flemish painter, Pieter Bruegel, portrayed in his artwork men relieving themselves, cripples begging, and peasants toiling—as well as butchery and the gallows. In his masterful work, The Civilizing Process, Norbert Elias showed how the “late medieval upper class” had not yet demanded, as later generations would, that “everything vulgar should be suppressed from life and therefore from pictures.”

For centuries now, defining incivility has been intimately connected with social rank, class status, political hierarchy, and relations of power. The ability to identify and sanction incivility has been associated with positions of political privilege—and simultaneously has constituted and reinforced political power. This, I fear, remains true today: Defining incivility in political discourse continues to be a political strategy that is deeply embedded in relations of power.

In the aftermath of the Tucson shootings, there have been renewed calls for greater civility in our political discourse. Although at a personal level I favor civil discourse as the wiser path in politics, I recognize that it is inevitably a political strategy that comes more easily to those who already have an audience or a professional position that affords them greater access to the media and the public. This suggests, at least to me, that we should be cautious about telling others how civilly they should speak.

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