Tone vs. content; or why Orin Kerr really is an asshat

Soooooo, some of you may have noticed I got into a bit of a comment tiff with known law scholar and also known internet asshole (google "Glenn Greenwald" and "Orin Kerr" sometime, and then just watch a beatdown unfold)(oh, never mind, start here and here) Orin Kerr.  And, you know, I'd like something decent to come out of that exchange (not with Orin.  Until he has something intelligent or humane or HOPEFULLY BOTH to say (Readers, did you know this is possible?  IT IS) his comments are not sullying our lovely space).

But he brought up one of my least favorite arguments ever, because it is always used by those who say horrendous things: it is the "tone trumps content" philosophy of arguing.

You can imagine where this is going already.  Because if one needs to argue that one is using the correct tone, and thus is a Serious Person who has said Serious Things, rather than the fact that one said anything worthwhile, you already know there is a problem here.  Yet this gets whipped out in debate ALL.  THE.  TIME.  And we need to bury this motherfucker.

Orin made up a fake email insulting Jews, because he is Jewish, I suppose (I bet some of best friends are black, too. HA!) and then illustrated the "proper" way to instruct someone on how to handle bringing up an obviously ignorant comment at Harvard Law, where apparently getting the ignorant racists to shut the fuck up is a bad thing (silly me, I would call this PROGRESS).  The "proper" way, by the way, does not involve schooling them, or pointing out their ignorance, or in any way calling them on their shit. 

No.  Instead, Orin basically said: if you have a view which has been espoused for hundreds of years by racists, and it is in fact a racist view, you just need to admit that you are espousing a view with a racist past, and then as long as you endeavor to show you are in good faith somehow, everyone else should accept your racist view as just another intellectual point for debate.

I AM NOT EVEN KIDDING, YOU GUYS.  THAT WAS HIS ADVICE.

This man ostensibly teaches law students, I do believe.  I am just saying. 

So once again, according to Orin Kerr, it is ok to continue a long tradition of oppression, oppression that the speaker has undoubtedly benefited from, and continues to benefit from, as long as you have the correct tone, and establish that you are arguing this oppressive thing in good faith.

And those last two words are where this argument totally falls off the rails (ok, it fell of the rails earlier, but this is where the train cars just BLOW UP) because there is no way these racist arguments can ever be in good faith.  Ever.

Let's take Stephanie Grace's argument, because that precipitated this entire thing.  Stephanie Grace, to whom Orin Kerr thinks folks are being unfair, said that, scientifically, it could be a proven fact that black people are less intelligent, genetically, than white people. 

Why is this in bad faith?  Because first off, Stephanie Grace has not met every single black person.  She has not met HUMONGOUS SWATHS of black people in the world, but she feels it is ok to make a ridiculous statement about ALL of the black people in the world.  To make such a statement about ALL people, by race, being ANYTHING, is totally absurd.  I mean, think about it.  It is.

Not only that, in 10 seconds, Stephanie Grace could have done a google search and discovered that scientists have uniformly rejected any of the theories of race and correlations with intelligence which would have made her statement true.  But she didn't look.  She wasn't ACTUALLY intellectually curious about this.  This wasn't in good faith.  Good faith would require you to educate yourself first.  It would require having a basis for saying something.  And Stephanie's basis here would be sticking her fingers in her ears and shutting her eyes and saying, "LALALALA" really loud.  This would be BAD faith, this right here.

But the reason she can be defended for saying something so ridiculous and ignorant?  Because of that history, that Orin Kerr said you should "recognize" (which: "own" in my book means something a whole lot different than "recognize," Orin, and I said "own" was necessary).  Hundreds of years of racism makes such a ridiculous statement somehow "acceptable" for debate.  Even though it is wrong.  And absurd.  And hurtful.  And that mindset has contributed to genocide, murder, slavery.  But as a society, we don't tag that statement as ridiculous.  And Stephanie can never truly "own" that history, because history is the only thing that is allowing her to even offer that view in the first place.*

Imagine if I went to Harvard Law and said, you guys, I know, there's always been this weird stereotyping of white people, but, really, I just really believe that white people are all secret obsessive nose-pickers (I don't know, Readers, go with it).  I would get ridiculed.  People would be all: I'm a white person and I don't pick my nose, and that has never been proven, and I want to see some research on that, and generally I'd be laughed out of the room.  As I should be.  Saying a group of people ALL have the same characteristic is totally ridiculous.  Because there is simply no way you could fucking know that.

But why don't you get laughed out of the room for saying all black folks might be not as bright as white folks?

This is why you can't make this argument in good faith.  Because you are using a history rich in racism and oppression to even come to the table to be taken seriously.  And notice no one ever needs to be defended for suggesting maybe Christians might be really greedy and selfish, or maybe all whites are not genetically as smart as blacks, or women are much better than men at math.  These "academic discussions" are only valid and allowed to come to the table if they go in one direction.  And that is the direction that hundreds of years of oppression have reified.  When you do this, you are just continuing the problem.  In fact, you have become the problem.  You are now the bigot that continues to use your privilege to perpetuate bigotry.  There is no good faith involved, anywhere.

I mean, in his fake email, there is a reason why Orin Kerr had to explain to Silvana and I, and other commenters, that he had made the email up that was ignorant about Jews, and it wasn't just because Silvana and I don't read his blog or his comments.  It was also because that sentiment, that Jews are moneygrubbers, is: a) STILL SAID; and b) certainly has a very long pedigree in history. 

Since good faith is out, let's get to tone.  I SO HATE THIS.  Because: on no plane in any reality does a polite tone ever take away the inhumanity of a statement.  I got tone thrown at me a lot during the first Bush administration, when the country had gone fucking crazy (I am ALSO LOOKING AT YOU, Orin Kerr).

Basically, someone would say: I think we should torture people.  And I would shriek: Are you fucking crazy?  That is a horrible fucking policy.  I would then give ten reasons why.  And they would say: you are not being civil, and thus, any argument you make is not valid.  You said fuck, I win.

Look, if you are saying that the word "fuck" is somehow worse than the sentiment that we should torture (mostly innocent, it turned out) human beings, not only is your moral compass broken, I am thinking you never even had one to begin with. 

There is speaking politely, and that is nice.  And then there is speaking truth.  And sometimes, these things can be combined.  But sometimes, if you are a horrible human being, and I am appalled by you, and you are NOT in good faith, then I am going to curse at you.  But that doesn't make me not right.  It doesn't make what I am saying not true.  It just means one of us actually is not a heinous human being, and is rightly upset at the view that is being espoused, and refuses to allow you to even bring that view to the table.  I am not even debating anyone's horrendous, inhumane views with reasoned arguments, because that gives those inhumane views way too much validation.  Some points of view are just not valid (these would include Stephanie's racist views).  I am not arguing with them like they are.  Because fuck polite, when truth and humanity is on the line. 

And I have a suspicion that this pearl-clutching over tone is lobbed more at the ladies, because they are not being lady-like, and they may be yelling, and angry, and ladies are not supposed to do that, and if they are, they are just hysterical and irrational.  I don't know if this is true, but it gets lobbed plenty from the right.  Whether it gets slung at ladies more, I am not sure.  But it has certainly been thrown at me.

Well.  There is a lot more to be said here, but it is late.  Feel free to add any other silencing techniques or other asshattery in comments.  Or hell, if you want to rant about the last time you had an Orin-Kerr-type run-in, go to it.**  Get it out.  I hear you.  I am right there with you.  We here, at Unnatural Forces, do not clutch our pearls or feel faint when we hear colorful language and emotional tones and raw anger.  In fact, we are not about politeness at all.  No, we are all about truth, which is always the greatest virtue, no matter how it is expressed.





* Especially: did you know that Stephanie Grace was using a law school built from the proceeds of slave labor to begin her stellar career?   Yup.  Stephanie Grace's privilege was built on the backs of black people.   Betcha she hasn't "recognized" that.
** And this is probably the last time I ever bring up Orin Kerr, because while he made me think about racism and tone and shit and I wrote this post, this is about as much good as one is going to get from interacting with Orin online.  I should stop while I am ahead.