communication – Sheila Kennedy

Speech Versus Action

A recent report on an upcoming Supreme Court case from the New Republic made me think–definitely not for the first time–about the widespread misconceptions around the First Amendment.

Most of the people who read this blog are aware of many of those misconceptions. Probably the most annoying is the most basic–it constantly amazes me (okay, irritates the heck out of me) how many Americans don’t know that the First Amendment, like the rest of the Bill of Rights, protects only against government action.

I still remember a call I got when I was with Indiana’s ACLU; the caller had applied for a position with White Castle, and had been told that his extensive tattoos were incompatible with their customer service standards. He demanded we sue White Castle for infringing his Free Speech rights. I had to explain that–had the City Council passed an ordinance against tattoos, that would have violated his First Amendment rights, but White Castle is private–and has its own First Amendment right to determine the manner of its own communication.

The case described in the linked article isn’t that clear-cut. It involves an often-contested “gray area.”

The Supreme Court will hear Counterman v. Colorado in April to decide whether prosecutors must prove that a defendant meant to threaten someone with harm, or if they can opt for the lower threshold of whether a reasonable person might interpret a defendant’s actions or statements as a threat. Where the high court ultimately comes down on this distinction could be consequential in an age when it’s easier than ever for Americans to threaten not just each other, but also election workers, FBI agents, members of Congress, and even Supreme Court justices. How far does the First Amendment go to protect them?

In my classes, I took a rather unorthodox approach to this question, and a number of similar issues. While you won’t find my distinction in legal treatises, it seemed to help students understand the purpose–and limits– of the Free Speech clause. The fundamental distinction I drew was between speech (defined as communication of a message) and action.

The distinction doesn’t rely on whether there was verbal communication.

If I tell you that this cubic zirconium ring I’m selling is really a diamond, and charge you accordingly, I have engaged in fraud–a behavior. The First Amendment won’t protect me.

If I text and telephone you every hour and call you names, that’s harassment–a behavior. The First Amendment won’t protect me.

If I burn an American flag, I am sending a message (we know it’s a message, because most Americans understand it and find it offensive). That message is protected by the First Amendment.

The problem for law enforcement arises when it is unclear whether we’re dealing with behavior–a genuine threat–or the expression of an opinion. (As lawyers like to say, it’s a “fact-sensitive” inquiry.) Social media trolling has vastly complicated this determination.

At the heart of this case is a campaign of harassment that seems all too familiar. The plaintiff, Billy Counterman, used multiple Facebook accounts to send hostile messages to an unidentified local musician in Colorado. Among the numerous messages that Counterman sent her were ones that read, especially in the context of the years-long barrage, as threats. “Fuck off permanently,” Counterman said in one of the messages. “You’re not being good for human relations,” read another. “Die. Don’t need you.” The target, who never responded to him and blocked him multiple times, ultimately contacted Colorado police, who charged Counterman for violating the state’s anti-stalking statutes.

Colorado law defines the offense to describe anyone who “repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person … in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person … to suffer serious emotional distress.” Notably, under the rulings of Colorado courts, prosecutors aren’t required to prove that the defendant intended to threaten a person. They instead must only show that a reasonable person would have taken the statements as threats, which is a much easier threshold to clear at trial.

In the lower courts, the troll was handed a sentence of four years under the state’s anti-stalking statute.

This is one of those “hard cases” that –as the saying goes– sometimes make bad law. Four years seems pretty excessive for being an online asshole; on the other hand, such trolling far too frequently becomes a “heckler’s veto”-defined as behavior that allows people who disagrees with a speaker’s message to shut that message down.

It remains to be seen how the Court will treat online harassment, but it sure seems like it falls on the “behavior” side of my explanatory line…..

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The First Corruption Is Language

Jeffrey Isaacs, a distinguished professor of political science at IU Bloomington, had a very thought-provoking essay in Common Dreams.It was evidently triggered by the issuance of a Chinese State Council position papers asserting that China is a “democracy that works.” The paper argued that the “Chinese model” is superior to the “Western model,”–that it is more efficient, promotes solidarity, and is not “an ornament to be used for decoration.”

As Isaacs notes

Most readers of the piece will rightly focus on the manifest hypocrisies of the Chinese power elite and its intellectual supporters who justify terrible violations of human rights.

But this rhetorical appeal by authoritarians to the values of “democracy” is nothing new. It has antecedents in the official rhetorics of Italian fascism, German Nazism, and Russian Communism—all of which claimed to represent a “higher form” of “folk democracy” or “proletarian democracy” or “people’s democracy.” In more recent times, Hugo Chavez presented himself as a proponent of an anti-imperialist “protagonistic democracy,” and Viktor Orban, the Prime Minister of Hungary’s increasingly authoritarian regime, famously declared in 2014 that Hungary was an “illiberal democracy,” pointing to Singapore, China, India, Turkey, and Russia as his models. And we must not forget, of course, that Vladimir Putin long extolled his regime as a form of “sovereign democracy” that placed national traditions above global commitments and regarded “human rights” as a “Western” abstraction.

As Isaacs goes on to discuss, the Chinese claim to be a democracy is just the most recent iteration of a longtime debate over what the term means. “Democracy,” as he reminds us, is a “complex and essentially contested” concept, and arguments over the connections between liberalism and democracy have been central to modern politics.

But we don’t need to look to mid-20th century totalitarianism, or current-day anti-liberal authoritarians in China or Russia or Hungary, to see versions of this contestation. For it is taking place before our very eyes in the U.S., in the form of a Republican party that is deliberately assaulting core norms and institutions of liberal democracy and doing it in the name of . . . democracy itself.

In the essay, Isaacs highlights a critical and too-often overlooked element of America’s current political impasse: the misuse–the intentional corruption–of language in service of propaganda and power.

He reminds us that GOP “leaders” from Tucker Carlson to Mike Pence have made it their business to commune with Viktor Orban, and that Republican efforts to “Orbanify” U.S. politics don’t just adopt Orban’s authoritarian legal tactics–they also mimic his rhetorical ones.

Isaacs is quite right that when Trump and his MAGA supporters pontificate about “democracy,” they mean something quite different from American liberal democracy.

They mean the popular sovereignty of “true Americans.” They do not mean by this universal adult suffrage, they mean voting restrictions designed to limit the participation of “undesirable” and “un-American” people. They do not mean by this a system based on robust debate and free and fair party competition. They mean a system that opposes “fake news” and “liberal science,” that privileges their own media and their own academics and their own partisan advantage, and regards any alternatives as “enemies of the people.”

This essay–well worth clicking through and reading in its entirety–reminded me of the following exchange from Alice in Wonderland between Alice and Humpty-Dumpty:

When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less. ‘ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.”

Communication is difficult even when the participants to a conversation agree on the meanings of the words they are using. Tone, body language, professional and “hip” jargon can change the connotation of otherwise simple exchanges, even when no misdirection is intended. When language is is corrupted–when, in the words of Tallyrand, words are chosen “to conceal true thoughts”–we no longer have the critically-important ability to engage in productive conversation.

Language is what allowed humans to emerge from caves, to collaborate, to investigate, to create. It’s not only essential for intellectual and emotional expression, it’s the primary vehicle through which humans transmit culture, scientific knowledge and world-views across generations, the way we link the past with the present.

When words no longer have objective content–when we lose the ability to understand what other people are really saying–the resulting chaos empowers the worst of us.

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Strategy And Language Matter

One of the more under-appreciated consequences of living in information “bubbles” is lack of recognition of the realities of political communication.

Because I write this blog, I routinely access messages from the left, right and (dwindling) center, and it has become obvious that Americans who reside in silos are simply unaware of what the people in other bubbles are hearing and thinking. They aren’t only “preaching to the choir”–they believe most of the church is singing their hymns.

I will admit to a partial bias in that direction myself–as I read claims made by those promulgating the “Big Lie” or bizarre beliefs of QAnon adherents, I wonder how any sentient person could believe such nonsense. But then, I remind myself that an uncomfortable number of people do believe these things–and that the language we employ to communicate with their fellow-travelers matters.

In my own silo, too many people have forgotten that. Too many see arguments about strategy as lack of commitment to progressive goals.

We saw this most recently with the disastrous “Defund the Police” slogan. No one I know disagreed with the goals of the “defund” movement, which were eminently reasonable. But people with even a moderate understanding of political strategy understood how easily that slogan could be weaponized against progressive candidates. Purists defending the slogan by insisting that it “just needed to be explained” were incredibly naive.

If there is one thing Republicans do well, it’s demonizing and weaponizing progressive terminology. It began a long time ago, when the GOP managed to turn “liberal” into a swear word, or a synonym for communist. They have had somewhat less success with “socialist,” mostly because they accuse any government action–most recently, repairing infrastructure–as “socialism.” (Or in Marjorie Taylor Green’s case, as communism.)

That one talent–turning progressive words into weapons–can derail well-intentioned but clumsy efforts to avoid hurtful language.

Michelle Goldberg recently wrote about one such effort to demonstrate “wokeness” via terminology.

If you follow debates over the strident style of social justice politics often derided as “wokeness,” you might have heard about a document called “Advancing Health Equity: A Guide to Language, Narrative and Concepts.” Put out by the American Medical Association and the Association of American Medical Colleges Center for Health Justice, the guide is a long list of terms and phrases that some earnest people have decided others in the medical field should avoid using, along with their preferred substitutes.

Some of these substitutions make sense; health care professionals shouldn’t be referring to people who’ve been in prison as “ex-cons.” Some are a matter of keeping up with the times, like capitalizing Black when talking about Black people. Some, however, are obnoxious and presumptuous and would impede clear communication. For example, the guide suggests replacing “vulnerable” with “oppressed,” even though they’re not synonymous: it’s not oppression that makes the elderly vulnerable to Covid.

As Goldberg points out, “Advancing Health Equity” would probably be ignored, if it didn’t “inadvertently advance the right-wing narrative that progressive newspeak is colonizing every aspect of American life.” Parts of the “diversity, equity and inclusion” movement are admittedly heavy-handed and feckless, and the rest of us keep having to answer for them.

John McWhorter, recently made much the same point in a column about the use and misuse of the term woke. McWhorter traced the emergence of the term and its original utility–and the subsequent success of reactionaries and White Nationalists in weaponizing it.

“Woke” has also followed a trajectory similar to that of the phrase “politically correct,” which carried a similar meaning by the late 1980s and early 1990s: “Politically correct,” unsurprisingly, went from describing a way of seeing the world to describing the people who saw the world that way to describing the way other people felt about the people who saw the world that way. Some in the politically correct crowd on the left had a way of treating those outside it with a certain contempt. This led to the right refashioning “politically correct” as a term of derision, regularly indicated with the tart abbreviation “P.C.” The term faded over the years, and by 2015, when the presidential candidate Donald Trump was declaring that “political correctness is just absolutely killing us as a country,” “woke” already had greater currency.

There probably wasn’t much progressives could do about “woke,” which began as a useful descriptor. But as Goldberg points out, there is a lesson here, and activists who actually want to win elections need to learn it. Language matters–and reluctance to use terminology that is a gift to the GOP isn’t evidence of a lesser commitment to the cause.

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Communicating In The Age Of The Bubble

This is the speech I gave yesterday to the Public Relations Club of Indianapolis.

Democracies require ongoing discussions by participants who share a reality. Thanks to social media, conspiracy theories, “fake news,” and political polarization, Americans today occupy alternative realities. We talk past each other, not to each other, a problem exacerbated by distressingly low levels of civic literacy.

Most people have heard Daniel Moynihan’s famous quote to the effect that we are all entitled to our own opinions, but not to our own facts. Less famous, but equally true, is this quote from the science fiction writer Philip K. Dick: “reality is that which, when you stop believing in it, doesn’t go away.” I think Neil DeGrasse Tyson said something like “Reality doesn’t care whether you believe it or not.”

The problem is, without a shared belief in a shared reality, productive public discourse becomes impossible. When it comes to the exercise of democratic self-government, we also need a shared understanding of the basic premises upon which our system was built. People don’t need to be constitutional scholars, but they do need to know the philosophy of our system, what I call “America’s foundational values.” We don’t even have to agree with the principles and values the founders incorporated in our constituent documents: we just need to know what they were, and how 200+ years of jurisprudence have changed and enlarged them.

People who know me know that civic literacy has been an obsession of mine for years. I’m not going to belabor it for my entire talk, I promise, but I do want you to understand what I mean when I say that civic ignorance is preventing informed civic participation by too many Americans.

For a number of years, it has been clear that what I call “civic literacy”—knowledge of the U.S. Constitution and Bill of Rights, the basics of American history, at least a nodding acquaintance with what is meant by the Rule of Law—has been in very short supply.

Let me just share some statistics that illuminate the extent of the problem. (There’s a lot more depressing research on IUPUI’s Center for Civic Literacy website.) A few years ago, the Oklahoma Council of Public Affairs asked high school seniors in that state some simple questions about government. Here are a few of those questions and the percentages of students who answered them correctly—and let me also assure you that there are dozens of studies confirming that, unfortunately, Oklahoma isn’t an outlier:

What is the supreme law of the land? 28%

What do we call the first ten amendments to the Constitution? 26%

What are the two parts of the U.S. Congress? 27%

How many justices are there on the Supreme Court? 10%

Who wrote the Declaration of Independence? 14%

What are the two major political parties in the United States? 43%

We elect a U.S. senator for how many years? 11%

Who was the first President of the United States? 23%

A recent survey found only 24 percent of Americans could name the three branches of government—that’s down from that same survey’s result of a pathetic 36% just a few years ago. Fewer than half of 12th graders can describe federalism. Only 35% can identify “We the People” as the first three words of the Constitution. Only five percent of high school seniors can identify or explain checks on presidential power.

Americans are equally uninformed about important current events and issues: a survey taken during the widely publicized effort to repeal the Affordable Care Act found that a full third of Americans didn’t know that the Affordable Care Act and Obamacare are the same thing. Another survey found that only 47% of Trump voters know that Frederick Douglass is dead. Closer to home, Indiana had the lowest voter turnout in the nation in 2014; when the Center for Civic Literacy fielded a survey asking why, 20% of the Hoosiers who didn’t show up at the polls said they didn’t vote because they didn’t know enough about the candidates or the issues.

One obvious problem with civic ignorance is that citizens who don’t know what the Constitution requires don’t recognize when proposed laws would violate it. Here in Indiana, we have a legislature in which a number of lawmakers can’t tell the difference; As I’m sure you’ve seen in the news, both local and national, Milo Smith, a Republican from Columbus, has proposed a law that would require the owners of the Colts to refund ticket prices to attendees “offended” by athletes “taking a knee”– that is, by athletes exercising their First Amendment rights. (We can discuss the constitutional defects of that suggestion during Q and A, if they aren’t immediately apparent.) This proposal has generated national scorn, and made Indiana look like a backwater. Again.

Here’s my premise: Legislators and informed citizens should be able to recognize the difference between a policy they disagree with and one that is unconstitutional.

There is another “small d democratic” electoral problem with our dismal lack of civic knowledge; citizens can’t evaluate the performance of their elected officials if they’re unaware of the standards to which those officials should be held.

The ability of citizens to determine what constitutes accurate information—not just about our Constitution and legal system, but about science, about history, about economics, and about what happened yesterday—is critically important. Right now, even thoughtful people are unsure of who and what to believe.

That insecurity leads to distrust, and when people don’t trust their social and governmental institutions, society doesn’t function. Government doesn’t function.

Don’t kill this messenger, but the Public Relations profession bears a disproportionate responsibility both for the loss of trust and for people’s inability to sort the wheat from the chaff. I’m not talking about “puffery”—anyone who ever sold anything in the marketplace has been guilty of that, probably from the time of the Roman agora. I’m thinking of the far more sophisticated cultivation of purposeful distrust, that started really being socially problematic with its use by big tobacco. As I’m sure you all know, when science confirmed the health hazards of smoking, tobacco companies hit on a brilliant strategy: rather than debating the science, rather than responding with the dubious “findings” of their own shell “institutes,” they insisted that the jury was still out. No one really knows whether smoking is the cause of X, Y or Z.

The “who knows” tactic worked for Big Tobacco for a long time—if it hadn’t been for some industry whistleblowers, it might still be working. Today, that approach has been adopted by other industries that pose a threat to public health, most notably, the fossil fuels industry. Oil, gas and coal producers rarely argue anymore that climate change isn’t real; they say the science of causation is unsettled, that we don’t “really know” whether the changes that have become too obvious to miss are due to carbon warming the atmosphere, or whether they might be part of natural fluctuations, or something we have yet to identify. (What do 97% of climate scientists know, anyway?)

Then these profit-motive encouragements of uncertainty met the Internet, where conspiracy theories and political spin and propaganda intensified mistrust. These days, sane people don’t know what to believe; crazy people—whose ranks seem to be growing—believe all sorts of bizarre shit. Hillary Clinton is running a child sex ring out of the basement of a pizza parlor. Barack Obama was born in Kenya, and someone, somehow managed to get his birth announcement published contemporaneously with his birth in Hawaii because they knew he’d be President someday. Right.

I tell my students, if you want to believe that aliens landed in Roswell, I can find you five websites with pictures of the aliens’ bodies on them…

Rightwing and Left wing “news” sites constantly pump out propaganda that then is circulated through Right and Left social media bubbles. And to return to that horse I keep beating, if you are ignorant of how government works, if you can’t tell the difference between science and religion, if you don’t know the definition of “fascism” “socialism” or “capitalism”—you have no yardstick to apply, no way to evaluate the credibility of what your friends are posting, or the President is tweeting.

Words are the stock in trade of your profession, so it should really worry you that words are losing their meaning. If “socialist” is an epithet, rather than a description of a particular economic system, we can’t communicate. And you probably shouldn’t get me started on “liberal” and “conservative.” I think the GOP’s support of Donald Trump is pretty conclusive evidence that the party is not conservative—certainly not in the sense of political philosophy.

I’m a good illustration of how empty the words “conservative” and “liberal” have become—and how far the political pendulum has swung. In 1980, I was a Republican candidate for Congress. I was pro-choice and pro-gay-rights, and I won the GOP primary; when I lost the general election to Andy Jacobs, multiple people—most of them Republican– told me they couldn’t vote for me because I was “just too conservative.” I have changed my positions on a couple of issues—issues where the “facts on the ground” have shifted, or I’ve learned more about them—but my basic political philosophy is the same as it was in 1980, and I have old position papers to prove it. Yet today, I am routinely accused of being a pinko leftwing socialist elitist.

The point of all this is: words matter. Facts matter. Trust matters. When words cease to have content, when facts become matters of personal preference, the communication that builds trust becomes impossible.

And without a basis of trust, democracy is impossible.

I don’t know how we fix the fix we’re in right now, but I know we’d better figure it out, and soon.

Thank you.

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The Purpose of Language

Perhaps Tallyrand was right when he (purportedly) said that language was given to man to conceal his thoughts; we sure aren’t using it in order to communicate with each other these days.

In order to use language to exchange ideas, rather than to evade the chore of thinking, we’d have to stop the increasing tendency to substitute labeling for communicating. There are two major problems with that substitution: it allows us to avoid responding to the merits of an argument, and the labels themselves are all too often devoid of any meaningful content.

As many of you know, I alternate columns in the IBJ with Peter Rusthoven–I write one week, he the next. Generally, we do not take issue with each other, but a few weeks ago, I wrote a column that criticized the GOPs repeated efforts to derail “Obamacare,” including the House of Representatives’ forty (meaningless/posturing) votes. Rusthoven disagreed with that column, as he has a perfect right to do. But opened his “response” by pointing out that I am (in his lexicon, at least) a liberal. The implication was clear: we need not spend any time on the merits of her arguments, because we’ve placed her in this particular box and we have all made up our minds about the content of that box.

It may not be fair to pick on Peter for this behavior, because he is far from the only person who engages in it–on either side of the political spectrum. Furthermore, we all classify others to some extent; it’s human and it’s often efficient. The problem is, if we are going to affix a label that actually assists us in understanding where another person is coming from, we need to agree on the meaning of that label. And these days, we don’t.

Labels have lost their descriptive utility–they’ve become insults. Epithets. This is especially true of political labels.

A couple of years back, I proposed a quiz:

What highly placed political figure took each of the following actions?

Established the Environmental Protection Agency
Pardoned a powerful person who had committed a felony
Changed the rules governing welfare to restrict benefits and add work requirements
Defended the right of gays to serve in the military
Imposed wage and price controls during an inflationary spiral

The answers are: Richard Nixon established the EPA and imposed wage and price controls during his presidency; Gerald Ford pardoned Nixon after his resignation; Bill Clinton proposed and signed legislation “reforming welfare as we know it;” and Barry Goldwater vigorously defended the right of gays to serve openly in the military.

Which of these actions–and political figures– would we label “liberal” and which “conservative”?

Since Obama’s election, the problem has only worsened. The people who insist that the President is a “socialist” clearly don’t have the faintest idea what a socialist is. (And as I have pointed out elsewhere, he can’t be both a socialist and a Nazi at the same time; “National Socialism” is not the same thing as the political philosophy known as socialism.)

Actually, when I read “The Audacity of Hope,” it reminded me of my own platform when I ran for Congress in 1980–and at the time, I was labeled a conservative Republican.

When I encounter one of these accusatory critics, I want to shout “Agree with the President or disagree with him on the merits of his performance or positions. The substitution of (highly inaccurate) labels simply lets people know that you don’t know what you’re talking about.”

What reasonable people hear when a label is used in lieu of an argument is: I don’t like person X or position Y. I have no clear reason for my animus, and no persuasive counter to his position, so I’ll just call up a handy label.

That’s not communication, and it doesn’t advance any debate. Tallyrand to the contrary, it doesn’t even conceal the speaker’s thoughts.

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