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gravitascivics · 4 years ago

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THE ANGLO-SAXON INFLUENCE

[Note: From time to time, this blog issues a set of postings that summarize what the blog has been emphasizing in its previous postings. Of late, the blog has been looking at various obstacles civics educators face in teaching their subject. It’s time to post a series of such summary accounts. The advantage of such summaries is to introduce new readers to the blog and to provide a different context by which to review the blog’s various claims and arguments. This and upcoming summary postings will be preceded by this message.]

This blog currently is looking at the effect identity, that factor that defines a person (for example, as an Irish American), has had on polarizing the American public. While this has become particularly virulent, identity always exerts itself in politics. It is ubiquitous. And it is not only in politics but in other realms of life. Take sports. There, teams count on identities based on localities or educational linkages to sell tickets or paraphernalia to a fan base which results in gobs of money for those teams.

Usually, such expression does not cause any or much antagonism – yes, there are the occasional fights and strains, but they are usually considered a source of good-natured ribbing or put downs. One usually speaks of “bragging rights” if one’s team wins. But of late, the identity factor is being expressed in the political arena seriously and persistently. And when ethnicity, race, and/or nationality serve as its source, identity, as the historian Schlesinger warns, threatens to debase the nation’s unity.[1]

Of course, this usually is related to immigration, but it also has to do with race relations, an ongoing source of animosity and violence in the nation’s history. And it does represent, among unjustly treated people (due to their identity), legitimate protests – e.g., the Black Lives Matter movement.

But a troubling question is: to what extent should immigrant, racial, or indigenous groups divorce themselves from the nation’s overarching cultural base? That is an argument that multi-culturalist pose and its aimed at the adoption of the Anglo-Saxon cultural base – the base upon which the nation’s culture has developed.

That base, it should be remembered, has provided the basic constitutional structures, processes, and legalities upon which the nation rests. Of course, this reliance has not of necessity staved off influences from other cultures. And the nation has during the years of its existence entertained and adopted elements of those other traditions.

Most of them are aesthetics in nature. Influences in food, music, art, and so on have been a continuous part of the American story. But in addition, there are other areas – beyond aesthetics – in which varying cultural influences have made their marks. For example, the whole notion of professional policing originates with the Romans, not with the Anglo-Saxons.

But today’s expression of heightened allegiance to some political/national/ethnic based identity – an allegiance approaching or expressing a tribalism – does not originate from a communal sense. It instead stems from an extreme individualism and, as such, reflects a nuanced concern. David Brooks makes this connection.[2] He explains how individualism allows for uninhibited natural motivations to go unchecked and part of that package of dispositions is to favor one’s tribe and to degrade other “tribes” – other nationalities, ethnicities, and/or races.

The classic Us vs. Them mentality is spurred by such thinking. And consequently, it becomes the fuel that feeds the polarization the nation faces. One should point out, counterintuitively, and ironically, it serves to undermine the basic individualism that brings it to the fore.

That is, the individual is subsumed under resulting movements by which this identity is expressed. Again, the historian Schlesinger warns that the individual is absorbed into a united expression of national, racial, and/or ethnic messaging and his/her personage is subsumed with that process. The analogy, a silly one, that illustrates the point, might be how people lose their identity when they apply makeup that exhibits team colors to the point one cannot identify who they are.

But one should not misidentify this allegiance. It is not an example of commitment. It instead reflects a type of transaction. The exchange is this mindless devotion to the source of the identity for an enhanced ego. “I belong to this group, and it makes me special” is the basic message one projects. Shouting “USA, USA” when so motivated is basically one that proclaims the shouter’s importance; he/she is an American and, therefore, superior.

And when this is expressed in terms of a nation, one can discover the main difference between patriotism and nationalism. Patriotism promotes a sense of commitment that one is willing to sacrifice for the common good within the context of one’s nation. Nationalism, instead, calls for sacrifice so as to be able to promote an expression of oneself.

The main difference lies in this ultimate targeting, but one can describe it practically: with patriotism one can protest what one’s nation does if what it does hurts the common good, where nationalism does not allow such a divergence from national policy or for some leader.

As for the Anglo-Saxon influence, why should one be an adherent to its provisions or basic ideals? First, it should not be seen as a static entity. It has a long history of evolving even before arriving on these shores. It either adopted or developed those ideas and ideals that became this nation’s basic constitutional framework and not all of that originated in Britain. And, in part, that framework calls for a commitment to a union of volunteers that comprises the American republic and its basic values and norms.

Within its tenets, it establishes a partnered arrangement among those volunteers to work toward the common good – a more perfect union. And the path toward establishing this partnering was not arrived at smoothly. Religious tribalism predated the other forms mentioned above. Intolerance among the different Christian sects was common, not to mention the antagonism toward Jews.[3] But through them, usually for practical reasons, the evolving cultural base found itself accepting more variance within the population. And with that, a level of secularization gained ground.

By doing so, that commitment to a partnered populous eventually became institutionalized. Its adoption to a meaningful degree did not take hold until well into the nation’s history. This commitment assumes and holds that any polarization in which the populous is divided into two uncompromising alliances – which religious divisions resembled – serves as an antagonistic expression to those federated ideals.

It is instead a form of tribalism while the Anglo-Saxon based tradition – the one this nation inherited in a more crude form from the British in the eighteenth century and grew through complex developments – calls for a committed congregational arrangement.[4] The two, the partnered view vs. the nationalist view, are basically different.

[1] Arthur M. Schlesinger, Jr., The Disuniting of America: Reflections on a Multicultural Society (New York, NY: W. W. Norton and Company, 1992).

[2] David Brooks, The Second Mountain: The Quest for a Moral Life (New York, NY: Random House, 2019).

[3] Kenneth C. Davis, “America’s True History of Religious Tolerance,” Smithsonian Magazine, October 2010, accessed November 1, 2020, https://www.smithsonianmag.com/history/americas-true-history-of-religious-tolerance-61312684/#:~:text=In%20the%20storybook%20version%20most,followed%2C%20for%20the%20same%20reason.

[4] More specifically, this congregational tradition stems from the Puritanical influence that in effect were being encouraged to leave Great Britain in the 1600s. But one can argue, the established view of formal religion reflected the Roman Catholic Church’s vertical structure while the Puritanical congregation more closely reflected a traditional Anglo-Saxon tradition. It is their congregational bias that seems to have encouraged the federal structure of the US, with its supporting processes, that this nation implemented.

#identity politics #tribalism #Arthur M. Schlesinger Jr.#David Brooks #civics education #social studies

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lemme-use-a-thorn · 2 years ago

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Government mandate makes a lot of sense, actually. In the Netherlands we becamse protestant after the Dutch Revolt, and it mostly started as a “fuck you” to Spain (which, y’know, incredibly Catholic). So the difference probably stems from how our countries became Protestant. Mandate vs spite i guess.

hang on wait a second. you were raised protestant but did communion??? hello??? there’s protestants out there who do that???

In every Swedish church denomination I’ve ever interacted with? We do confirmation at age 14 too. The Swedish church has been Protestant since the 1600’s and all denominations that aren’t the Swedish church (except obviously the Catholic Church of Sweden, with which I’ve never interacted) are also Protestant and ever one has done communion with the wine and wafer thing?

#i learn something new every day

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a-wandering-fool · 6 years ago

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Facts vs. opinions; compensatory/presumed/punitive damages; negligence, recklessness, and knowledge; libel per se; timing; choice of law; and more defamation law fun.

Eugene Volokh|January 24, 2019 1:01 pm

Some readers have been asking me about whether the Covington High School boys could sue various people who have said various things about them. (For more on the story, see this Robby Soave [Reason] article, and this Caitlin Flanagan [The Atlantic] article.)

It's hard to tell, because to my knowledge no lawsuits have been filed, so we don't know exactly who would be suing whom over what statements. Still, let me offer a few general thoughts. (Note that this is entirely apart from the important matters of media ethics and personal ethics that this incident implicates; I'm focusing here solely on the legal questions, because that's where I think I have something to contribute.)

[1.] Fact vs. opinion. A lot of derogatory, even unfairly derogatory, criticism is treated as pure opinion, and thus not legally actionable. For instance, claiming that someone's appearance in some video (especially one that you link to) reflects a "smirk" (rather than a pained smile) and stems from racism, is likely to be seen as an opinion: A reasonable reader would understand it as the poster's subjective judgment about the video subject's motivations, and thus as speculation rather than an assertion about provable fact. To quote a nice summary from a recent federal district court case,

Statements indicating that Plaintiff is racist are clearly expressions of opinion that cannot be proven as verifiably true or false. While there appears to be no North Carolina court expressly addressing this issue, many courts in other jurisdictions that have faced the issue of defamation claims based on accusations of bigotry or racism have held the statements to be nonactionable statements of opinion. See, e.g., Stevens v. Tillman, 855 F.2d 394, 403 (7th Cir. 1988) (holding that neither general statements charging a person with being racist, unfair, unjust, nor references to general discriminatory treatment, without more, constitute provably false assertions of fact); Standing Comm. on Discipline v. Yagman, 55 F.3d 1430, 1440 (9th Cir. 1995) (holding that calling a judge "anti-Semitic" was a non-actionable opinion); Ward v. Zelikovsky, 643 A.2d 972, 980 (N.J. 1994) (accusation that plaintiffs "hated Jews" nonactionable); Covino v. Hagemann, 627 N.Y.S.2d 894, 895 (N.Y. Sup. Ct. 1995) (dismissing defamation claim based on statement that plaintiff was "racially insensitive," observing "an expression of opinion is not actionable as a defamation, no matter how offensive, vituperative, or unreasonable it may be" and "[a]ccusations of racism and prejudice" have routinely been found to constitute non-actionable expressions of opinion); Williams v. Kanemaru, 309 P.2d 972 (Haw. Ct. App. 2013) (accusation of racism based on disclosed facts not actionable for defamation); Lennon v. Cuyahoga County Juvenile Court, No. 86651, 2006 WL 1428920, *6 (Ohio Ct. App. May 25, 2006) ("[W]e find that appellant's being called a racist was a matter of one employee's opinion and thus is constitutionally protected speech, not subject to a defamation claim.").

On the other hand, claiming that a person made a particular statement would be a factual assertion, and might well be libelous if false and defamatory (i.e., if the statement, if made, would reflect badly on the person).

[2.] Speaker's mental state. Say that a speaker had said made a false factual assertion about one of the Covington boys. What mental state would the plaintiff have to show on the speaker's part? From a First Amendment perspective, that turns on whether the plaintiff is a public figure or public official, and whether the speech is on a matter of a public concern.

The boys are private figures, not public officials or public figures; they weren't famous or influential before this event. One could become a "limited purpose public figure" by voluntarily entering some particular debate; then one would be treated as a public figure as to claims relevant to that debate. But I doubt that just showing up at a rally would qualify, and in any event the rally they voluntarily joined was a "March for Life," not a rally focused on racism or Indian-white relations or the way to deal with protesters banging drums and chanting.

On the other hand, the criticisms of the boys were tied to questions of broader public concern, rather than purely private figures. In private figure/public concern cases,

The First Amendment allows plaintiffs to recover proved compensatory damages (such as loss of business opportunities, loss of social standing, and emotional distress stemming from those harms) based on a showing that the defendant speakers' errors were negligent.

But before plaintiffs recover other damages -- such as "presumed damages," which don't require a showing of specific loss, or punitive damages -- they have to show that the defendants knew their statements were false or likely false (the misnamed "actual malice" standard).

My guess is that the plaintiffs would have a hard time showing specific damages stemming from a particular Tweet or even a statement in an out-of-town newspaper. They may well be damaged by the controversy as a whole, but that doesn't mean they can show such damage stemming from a particular defendant's speech. They would therefore need to claim presumed or punitive damages; and that requires more or a less deliberate lie, not just a negligent mistake.

[3.] Libel per se? The boys appear to be from Kentucky, so it seems likely that any suit they bring will be governed by Kentucky law. (That's the general choice-of-law rule in cases of libel by media that crosses state boundaries.) Under Kentucky law, and under the law of many other states, a plaintiff may only recover presumed damages for accusations that are "defamatory per se" -- "those which attribute to someone a criminal offense, a loathsome disease, serious sexual misconduct, or conduct which is incompatible with his business, trade, profession, or office." (The same rule likely applies to punitive damages as well.)

So if a teenager is just being accused of being rude or racist, I doubt this would qualify as "per se" defamation; he then would need to show proved compensatory damages, or what are often called "specific damages" rather than the presumed "general damages." (One can argue that accusations of racist smirking, even at a political rally, may eventually harm the boys' business prospects in their future professional lives; but while that may be factually plausible, I don't think such long-term potential harm in a future business, trade, profession, or office would qualify under the "per se" test.)

As I mentioned above, such specific damage to reputation might be hard to show for most Tweets and out-of-state newspaper publications. On the other hand, if someone is accused of hitting or threatening people, that's an accusation of crime, and thus defamatory per se.

Note that the rule seems to be somewhat different in Ohio, where other statements that "hold [plaintiff] up to a public hatred, contempt or scorn" can qualify as defamatory per se; so if some of the boys live in Ohio (that seems possible, since I think Covington Catholic High School is very near Cincinnati), they might have a stronger case.

[4.] Knowledge/negligence as of when? Say that someone posted an accusation sincerely believing it to be true, but then it was shown that the accusation was false, but the poster refused to take it down. Can the plaintiff successfully argue that keeping the post up with knowledge of falsehood or likely falsehood is libel, or does it matter only what the defendant knew when he initially posted the material?

Likewise, even if the negligence test applies, say that, when an accusation was posted, the poster reasonably believed it to be true -- but then learned of facts that would lead a reasonable person to no longer believe that. If the poster refuses to take down the post even then, can the plaintiff argue that keeping the post up is negligent, or does it matter only whether the defendant was negligent when he initially posted?

Surprisingly, that is not a well-settled question; the cases are split, and there are good arguments on both sides. On one hand, the Restatement (Second) of Torts § 577(2) states:

One who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or chattels in his possession or under his control is subject to liability for its continued publication [once he learns about the defamatory statement].

Illustration: 15. A writes on the wall of the men's washroom in B's tavern a statement that C is an unchaste woman. B fails to discover the writing for an hour. After he discovers it, he fails to remove it for another hour, although he has ample opportunity to do so. During the second hour the writing is read by several men. B is subject to liability for the continued publication of the libel during the second hour, although not for the original publication. [That illustration is drawn from an actual California court case. -EV]

The logic of this provision seems to apply to Web sites owned by the publisher, and to publishers who knew about the statements from the outset but only later learned that they were false. (Because the Restatement is an influential summary of court cases, not a statute, courts can apply it by analogy even to situations that may fall outside its literal words.) On the other hand, some courts have held that, under the so-called "single publication" rule, the validity of a libel claim is judged solely as of the time the libel was initially published. I'm writing a law review article on this subject right now, and I hope to post more about it in coming months.

[* * *]

There's more to be said, but the post is long enough as it is. I'll leave it at that for now, though I might have more follow-up posts in days to come.

#must reads

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benrleeusa · 6 years ago