Thursday, April 19, 2007

Follow up on that.

Some really good stuff out there. A few high points I did not hit, most of which I'm drawing from others' comments, but not all.

1) Yes, there has been an awful lot of attention to this, crowding out other issues of importance. My having posted on it reflects my agreement that it's interesting and important, but having seen the explosion of coverage, I do agree with the call for perspective.

2) Yes, I also agree that the implicit internalized rejection of self in response to white standards of beauty figured in this; that to me does not shift the blame at all, but it does point out that developing an independence of thought and embracing what others seek to stigmatize can be an effective defense if you're lucky enough to be able to do it.

3) This is a good example of how free speech means being able to say what you want via the network you own; hence NBC and CBS got a chance to exercise their free speech by letting Don Imus find some other venue. Free speech purists might have demanded something other than Imus' termination, true, so as not to chill people in his position, but this speech struck me as weak in hallmarks for protectedness, Imus has been relatively privileged, and the demand for a penalty seems pretty inevitable. It would be better to enact a durable and viewpoint-neutral standard for on-air speech conduct than to get rid of a person.

4) I am generally accepting of a humor defense for what otherwise might be considred hate speech, provided the humor succeeds in achieving some redeeming value and particularly if the joke is intended to be on the bigots and not on the disenfranchised. It should be one of a series of factors considered in evaluating how bad a comment is.

5) Some have tried to shift the attention to rappers. Some very smart people rightly acknowledge that hip hop has its horrible side that should be addressed; on the other hand, the ploy of justifying us-on-them bigotry by pointing to them-on-them bigotry is tired and disingenuous coming from most of its advocates. Beyond that, a most of rap is pretty benign compared to the worst it has to offer. When Nelly sings, "won't you hos come out and play, now?" he's talking about...hos. When Will Smith affects a bad-ass persona, bragging about his sexual exploits, you know it's just silly : Jada's not gonna stand for it. When Slick Rick gives us "Women Lose Weight," it would be horribly misogynistic if it weren't so funny. The defense in the previous paragraph applies.

6) Several of these points can be summarized together in the series of factors suggested above which provide an estimate of how bad something is. There is precedent in the law for identifying lists of factors that distinguish, for example, threats, which are unprotected performative speech, from mere expression, which is protected. It's easy to think what some of the factors should be that should be considered, for example, in employment harassment policies. I would suggest:

(a) The comment targets a specific individual or small group, as opposed to an entire protected class. This is because the attack in the first instance is apt to be felt more personally.

(b) The target or targets are not merely members of a protected class which is attacked, such as women or AfricanAmericans, but represent, or are closely associated with the broader group. This would include a role model, advocate, or spokesperson for a group, or a person whose group membership is especially salient. Such association assists in assuring that the attack is felt by an entire group.

(c) The individual is a private rather than general-purpose public figure, who has not courted or invited the kind of attention represented by the remark.

(d) The individual is vulnerable, either because young, experiencing hard times, not rich or powerful, or is at a point in their venture where there is much at stake.

(e) The individual’s targeted classification is not shared with the attacker, especially if the comment is directed by a member of a dominant group toward a member of a less-dominant group. This is because comments from without are an expression of power and implicitly threatening, because they are more hurtful, and because criticism of a group's internal handling of its identity tends to blame the victim, interfere with the group's internal autonomy, and suffocates the defensive project of defanging hurtful antagonistic speech.

(f) The comment is clear in its meaning and in its hostility, or else exploits a well defined mechanism of ambiuguity or code which resists policing.

(g) The comment is made more forceful by its being explicit or graphic, protracted, repeated, detailed, or especially loud, course, or profane.

(h) The comment is made directly to the target, or to people with power over the target, or to others whose respect or support is important to the target.

(i) The comment exceeds the background degree of ignorance or hostility ordinarily transmitted within the environment it reflects, and tends to advocate or promote (or lessen resistance to) a degredation of standards.

(j) The comment lacks legitimate purpose, or redeeming value, which would includes humor, artistic merit, comment on matters of social concern, academic or educational discussion, deliberative processes, or, to a lesser extent, communication for any legitimate purpose, including expression of strong emotion.

Thursday, April 12, 2007

Imus: Why the Why?

I've been, not astonished, but foreseeably disappointed, by the inability of so many mainstream media observers to get it. The local TV anchor refers to Don Imus's "blunder," a public radio report asks why the furor this time when he's said worse in the past. Another news report notes his being "insensitive."

Let's take the last first. Calling Barack Obama "articulate" is insensitive. One can sympathize with Joe Biden being so insensitive. Obama may be the most well-spoken American politician since Abraham Lincoln. He's the damned definition of articulate. But the word has baggage, and an articulate Democratic Presidential hopeful does not call an articulate black opponent articulate. It shows an awkward blindness to the consequences of language, one that can be attributed to innocent error. In contrast, "Oh, I'm sorry, I didn't realize that you would be offended at being called 'nappy headed hos'" does not seem very credible. [Aside: you shouldn't spell "hos" with an apostrophe, as many of these dumb media outlets have.]

Here's another test, based roughly on the burden-shifting mechanism recognized in Title VII discrimination cases: If you can make a prima facie case that a remark could reflect some kind of illicit prejudice, then ask whether the maker can come back with a credible explanation. In Biden's case: "Believe me: when I said articulate, all I meant was articulate" In Imus's case, the best I can come up with is, "I was saying that the Rutgers team fought on the court with the tenacity of young Ho Chi Minhs, but now must be so exhausted, they need to rest their sleepy heads." Pretty lame, I know, and I'm a lawyer.

Blunder implies the same thing: that it is what Imus did not intend that we dislike. What did he not intend? It's like a mean drunk who beats his pregnant wife every few days. If someone gets upset when it "goes too far" doesn't that mean that someone things a lesser degree of drunken pregnant wife-beating would have been acceptable?

I don't know everything that Imus has ever said, but the outrage in this instance does not seem hard to fathom. Not just that his -- wait --

Okay, as I am writing this, the local news I watch and always hate has just identified the issue as his "racially charged" comments. Again, this is a stupid hedge. Why is it only "charged"? My firm handled a case where a guy was fired for "racially charged" comments. We found a white comparator who told an African-American co-worker she looked like a hooker. That is what I'd call charged. It is not explicit, and in another context might have no racial aspect at all, but given the races of the parties, and the traditional Jezebel sterotype of African-American women, there was a racial tinge or inflection to the comment. "Nappy-headed" is pretty explicit. It's beyond charged. It's racial, period.

It also, of course, implicates sex, sexual mores, and class. In context, the phrase was equated with being rough, hard, savage. It hit on several points, and was graphic.

But that doesn't strike me as the big issue. Although I'm not a sports fan, I can appreciate the argument that for a bunch of underdog kids on the heels of a highlight achievement, this event partook of something sacred for its participants, like a funeral or a wedding. That's somewhere you don't want to take your dump, if you have any decency. Not if you want anyone to be willing to be seen with you.