They take opposing arguments out of context or restate them inaccurately and in bad faith.What might be useful there would be an example. Fortunately I have a near-perfectly illustrative example right here, from this blog, quoting a complete, stand-alone proposition:
That Justice Gableman agonized over running the ad before deciding to run it certainly could support an inference that he did not believe it was false. — law professor Rick EsenbergReplies Prof. Esenberg:
You're taking my comment out of context. I was discussing the constitutionality of sanctioning political speech, not speculating on Justice Gableman's intent — about which I have no knowledge.The comment was no more nor less taken out of context than it would be to take "You're taking my comment out of context" out of the context of the two sentences above.
Rather, it communicates a discrete, very particular idea that goes directly to one of the crucial elements of the code of judicial conduct Gableman is accused of violating: Intent. Prof. Esenberg well knows this and only pure sophistry can facilitate his evasion.
And even if I was "taking it out of" some context I was addressing it in its proper context: the record of the Wisconsin Judicial Commission's case against Gableman, the initial impetus for which is the object of the very remark of Esenberg's that he's suddenly now claiming was taken out of context. Mighty tricky, I do reckon.
Alas, it's nothing but a trick.
You don't get to cry 'context!' just because you are at once discussing a broader topic and then make an individual statement which has no necessary connection to that larger topic (in this case, Prof. Esenberg claims, the constitutionality of sanctioning political speech).
If I'm talking about going to the Packers game and mention how much I love the stadium brats at Lambeau Field, it serves me little effective purpose to subsequently recant loving the stadium brats because, hey, I was only talking about the Packers game.
Finally — and read these one more time — watch how Prof. Esenberg actually denies what he'd previously written:
1) That Justice Gableman agonized over running the ad before deciding to run it certainly could support an inference that he did not believe it was false.But of course contemplating Gableman's agony seeking (and then "certainly" finding) support for inferences as to Gableman's true/false beliefs is "speculating on [his] intent." That's exactly what it is.
2) [I was] not speculating on Justice Gableman's intent — about which I have no knowledge.
Bad faith, indeed. Once we see the good faith, then perhaps we might begin to concern ourselves with the requisite "civility."
Better yet, if Prof. Esenberg ever takes to exposing his fellow travelers Charlie Sykes and Patrick McIlheran, both of whom operate in a perpetual paradigm of bad faith, that would really be something.
Speaking of Aristotle...
ReplyDeleteI said that the fact that he agonized over the ad "could" support an inference that he - however wrongly - believed that the ad was "true" because each of its constituent parts was true. That is important because it may be the case, to avoid constitutional problems, that we can sanction people only if they know that they have made a false statement. In other words, they must have an "impure heart" not simply an "empty head." It is a subjective and not an objective test.
ReplyDeleteThe problem with your continuing effort to put words in my mouth about Gableman so you can condemn this is that I did not say that his "agonizing" "certainly would" support such an inference. It might not. I haven't read the record and I don't know.
Or it may be that we believe there is more constitutional room for punishing false political speech such that a modified objective test would be appropriate. The subject of my post was to try to figure out what Judge Fine was saying in that it is arguably inconstent with Ny Times v, Sullivan.
I said that the fact that he agonized over the ad "could" support an inference that he - however wrongly - believed that the ad was "true" because each of its constituent parts was true.
ReplyDelete"Certainly could," yes, and that's speculating as to intent, which is what you denied it being. It's by definition speculating on intent.
The reason I found it remarkable, as I have explained, is because its "certainly" supportable inference (whatever it is) entails either assumptions or a conclusion — based on a collection of facts and procedures that someone in Gableman's position must comprehend — which state that Gableman doesn't understand how the judicial system works. Personally, I find the latter practically impossible to believe.
This is a question that one can only with some difficulty separate from the ethical one. If Gableman knew what he was doing, then he's guilty. If Gableman didn't know what he was doing, then he's unqualified (whether not knowing how the trial and appellate systems work constitutes "mental incapacity" for the purposes of § 757.81(6)(6) is a question for another day).
So, anyway, first you tell me that I'm taking you out of context, then you tell me that what you said isn't what you said — or, in any event, it's what you said but here's a few more caveats that may or may not have occurred to me at the time — and now you say I'm putting words in your mouth.
I don't need to make anything up in order to point to the case for condemning Gableman, and I haven't. Nor have I taken you out of context. I have never suggested you are defending Gableman's actions; what surprises me, frankly, are your defenses for his cause.
When you say, as you did, that a summary dismissal of the complaint against Gableman is "the right outcome," I find that — which is effectively an ethical judgment masquerading as a legal one — troubling, particularly when it issues from a highly regarded member of the professional establishment (and, indeed, the Academy).
If your CLE reporting period coincides with mine, then I hope you'll join my letter of protest against the State Bar's regime of mandatory ethical training supervised by the members of the Supreme Court. This requirement seems to me vaguely hypocritical under the current procedural posture.
I understand the First Amendment implications at work here. I understand the profound importance of free speech principles and the controversial applications they find in this particular case.
I also understand that the First Amendment is not a collection of absolute privileges and that when one undertakes certain obligations of public office there is an implied surrender of some of those rights, or at least an implied promise not to enforce them.
I would bet the farm that if a different provision of the code of judicial ethics was at issue here, for example, the one forbidding judges from making explicit promises to rule on particular cases one way or the other, that a judge's violation in such a scenario would be subjected to a much more stringent standard of review than the instant case. And that judge would most likely lose.
If you agree with my suggestion, then why is lying any less unethical than simply promising?
Isn't it a matter of which state of mind is at issue?
ReplyDeleteRE wrote: Determining whether a statement is false can be difficult. The three judge panel in the Gableman case could not agree on whether the statements at issue in that case were false. Figuring out whether the speaker knew it to be false is even tougher. That Justice Gableman agonized over running the ad before deciding to run it certainly could support an inference that he did not believe it was false.
That seems not to speculate as to whether Gableman thought the ad asserted a falsehood -- it only suggests that the judges on the panel would have had to consider the question.
But it seems more presuppositional on Gableman's having "agonized". That is, it does appear to take a view on that aspect of his mental state.
Whatever. The exclusion of "empty head" defences is bizarre on its face. At some point the question must be whether a reasonable person could have doubted that the ad would assert a falsehood to at least many basically linguistically competent hearers. Judges rarely have a problem with speculating as to someone's mental state when they say things like "I didn't know the gun was loaded," but are known to have been present and looking at the gun while it was loaded. Only if Gableman claims the relevant equivalent of a severe visual impairment with respect to basic communicative competence could this defense fly.