Arguing with an Authority

Just because someone is an authority on a subject does not mean that person is always right about things related to that subject. Thus, one may occasionally find oneself in the position of wanting to argue against something an authority says about their special subject. This phenomenon has become all the more common since the advent of social media but has occurred since time immemorial. In the 19th and 20th centuries, a common way to rebut an expert was through newspaper op-eds.

The op-ed rebuttal is still alive and well, as seen in this short article. OK, maybe "well" isn't quite correct, but it's extant and frequent. In that article, the author, Stephen W. Ball, is replying to an article written by Ken White (@Popehat), who is considered something of an authority on the First Amendment. At the very least, he is known within First Amendment circles as someone who knows what he's talking about.

Go ahead and click through and read Ball's article. It's only 4 short paragraphs long, and only three of those paragraphs are substantive.

Done? Good. What did you think of it? Cuz I thought it was shit.

Does the author bring up some good points? I mean, like, kinda. He's not entirely wrong in what he says, but damn does he not know how to make a good argument.

When you argue against an authority about their subject of expertise, you need to make sure you fully explain yourself. It is nowhere near enough to simply say, "well, actually, you're wrong," and leave it at that. No one with a head on their shoulders will believe you. You must fully explain your position and cite direct evidence or other authorities. You must be persuasive.

Ball's entire article is just a series of one-sentence points saying, "well, actually, White is wrong about that," and never going on to explain how White is wrong. It's as though he brought up some talking points and then wanted to sit back and let the people in the comments section make his arguments for him.

I think I'll just go ahead and do that. I'll make his arguments for him. Sounds fun. Even better, I'll point out why his arguments are stupid, and maybe we'll all learn something.

One: "Well, actually, Schenck is still good law."

Well, actually, pretty much everyone thinks you're stupid for trying to make this argument. Is he right? Only in a very technical sense. I guarantee you will not see Schenck cited as anything other than historical curiosity in a SCOTUS decision anytime soon (unless they decide to finally get around to explicitly abrogating it).

Here's the argument he should have made when he decided going down this path was a good idea (note: I mostly pulled these arguments from Wikipedia, which I suspect is where Ball learned everything he knows about Schenck anyway):
"Schenck is still good law because the Supreme Court has never explicitly overturned it. Even Holmes' dissent in Abrams wouldn't have overturned Schenck, but instead, would have differentiated it. Furthermore, the same line of reasoning used to decide Schenck was used in Brandenburg v. Ohio, which established the current standard for incitement. Presently, Schenck appears to still be good law for matters concerning national security, as shown in the reasoning for Holder v. Humanitarian Law Project . According to Shepard's, Schenck was cited positively in an appellate decision as recently as 2010."

That's the best I can do in making that argument without spending far too much time on it. It's better than what Ball said because at least I included the word "because" and some sort of backing.

Is it an oversimplification of Brandenburg? Yes. Brandenburg didn't follow Schenck, it just considered the same sorts of things. In fact, Brandenburg explicitly rejected the "clear and present danger" test used in Schenck.

Does it matter in the slightest whether Holmes would have overturned Schenck in his Abrams dissent? Not really. It's a dissent.

Was Schenck actually cited as precedent in Humanitarian Law Project? No. The argument that these cases are related comes directly from Wikipedia and is interesting, but not entirely honest. While Humanitarian Law Project might have rejected a specific intent requirement for sedition supporting terrorism, it didn't do so by relying on Schenck. The only mention of Schenck in that case is in Breyers' dissent. There, he cites Schenck once as an example of a case badly decided due to a perceived national security threat:

 I am not aware of any case in this Court--not Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925), not Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470, 17 Ohio L. Rep. 26, 17 Ohio L. Rep. 149 (1919), not Abrams, 250 U.S. 616, 40 S. Ct. 17, 63 L. Ed. 1173, not the later Communist Party cases decided during the heat of the Cold War--in which the Court accepted anything like a claim that speech or teaching might be criminalized lest it, e.g., buy negotiating time for an opponent who would put that time to bad use.

Was that 2010 decision (the 9th Circuit's opinion in US v. Alvarez) really upholding Schenck? Not really. Alvarez was about the Stolen Valor Act, which made it a crime to falsely claim military honors. The court cited Schenck as upholding the idea that speech may be criminalized if it poses a "clear and present danger." I don't know what clerk decided that was still a test that courts use for anything or why no one caught that error, but Brandenburg explicitly killed the "clear and present danger" test. Importantly, for all its positive discussion of Schenck, the 9th Circuit nonetheless found that Act to be unconstitutional under the First Amendment. Also importantly, Alvarez was granted certiorari to the Supreme Court, which affirmed the 9th Circuit in an opinion which makes no mention of Schenck whatsoever. In fact, according to Shepard's, the Supreme Court has never cited Schenck positively. Now, of course, Shepard's has its flaws and its limits, but as a first step in research, and considering how old the case is, that should be a good sign that Schenck isn't exactly a highly regarded case.

Does it matter at all that a Circuit Court treated Schenck positively? Maybe. It's evidence that it's still seen as an important decision by some judges, or at least by some misguided clerks. However, the fact that the court spent so much time discussing Schenck is odd, to say the least. I'll just quote the dissenting opinion here:

The majority is wrong. The Court has never used the "clear and present danger" test to determine whether a category of speech is protected in the first instance. Much to the contrary, the Court has specifically held that the existence of a "clear and present danger" of harm is irrelevant in the context of unprotected categories of speech. ... Schenck dealt with a content-based restriction of a category of speech that would now be considered clearly entitled to First Amendment protection.

Ultimately, though, no one who knows what they're talking about (such as Ken White) views Schenck as good law. And even if one finds a situation where it could be considered "good law," in pretty much every instance there is a better case to be found.

Two: "Actually, true speech can be illegal."

The preferred word is "unprotected," not "illegal," but we get the point. And he's right. When it comes to determining if certain speech is protected, truth is not always a determining factor. Ball backs up this claim by paraphrasing an example from John Stewart Mill: "It is still criminal to incite mob violence or carnage at the house of a corn dealer even if the speech there is true." That's nice that he's reading Mill, but that's not a terribly good example to back up his argument. There have been some small but important changes to the concept of incitement since Mill's time. I simply cannot imagine a scenario where someone says a series of true statements which will cause a group of people to attack a corn dealer or burn down his house or whatever. Maybe the corn dealer was a really nasty guy, I dunno. But, for it to be incitement nowadays, the person charged with incitement would have to have spoken an opinion or a command at some point indicating a desire to have the mob attack the corn dealer. Such a statement would necessarily go beyond the realm of factual statements that can be described as true or false.

Here's the argument he should have made: "It overly simplifies the law to say that true speech is always protected. There are several instances where one may speak only truthful, factual statements and their speech still be unprotected. For example, Public Disclosure of Private Facts may involve speech that consists entirely of truthful statements, and yet that speech would be unprotected. Also, certain content-neutral regulations ban truthful speech along with all other types of speech, such as ordinances which prohibit protesting within a certain distance of a funeral. Someone may be protesting by holding a sign containing only truthful statements but would still be in violation of that ordinance. Thus their speech would be unprotected even though it is true."

There's nothing actually wrong with this argument. It's a bit pedantic, though, to argue about a single over-simplification in an otherwise good op-ed, especially considering the word count limitations. It just seems douchey to write your own op-ed saying, "well, you know, actually, these two minor points that make no difference to your main point you got slightly wrong, but otherwise it was good."

Three: "Here's a tangential obvious point."

Another reason not to make truth or falsity the test of protected speech is that what was once thought false might turn out to be true.

Yeah, no shit. And vice versa. That's part of the reason why it's not the test. Ball never does explain what this sentence has to do with the rest of his article, but then, he doesn't make a habit of explaining anything at all. So there it is. No, he didn't expand on this thought either. It's just this sentence sitting right after the single sentence about truthful speech sometimes being "illegal." Honestly, I'm almost embarrassed for him. The whole thing reads like an outline of a rough draft.

Four: "Let me start making a point and not finish it."

There should be no doubt, however, that so much of so-called hate speech is legally protected but is nevertheless currently suppressed — especially on college or university campuses (I am a philosophy professor at Cal State San Luis Obispo). “Hate speech” has come to mean whatever political speech one hates or finds offensive.

Thanks. You're really adding to the discussion. Maybe, being a philosophy professor, Ball could have added some insight by discussing things he has observed on campus as examples of "hate speech" being suppressed. He didn't, though. He just paraphrased part of White's article and made sure everyone knows he's a philosophy professor. This adds nothing. It's as though he thought of a good point, wrote down a couple sentences introducing that point, then promptly forgot to make the point before finishing his op-ed. It's just two sentences sitting there without backing or explication or anything. I totally agree with these two sentences, by the way, but this is not how one makes a good argument.

So, in sum: if you want to argue with an authority, make sure you know what you're talking about, back up your claims with evidence, keep to the point, and finish your thoughts. And that's a minimum. If you want to get beyond simply avoiding people laughing at you to start winning arguments, you'll need to start looking beyond Wikipedia for sources.