Let the Punishment Fit the Crime

There’s an interesting discussion about free speech between Eve Garrard and Shalom Lappin at Normblog. Not, this time, via Irving and lying but via Frank Ellis and racist opinions. I had a thought about that earlier discussion with Norm and Eve, and have been meaning to scribble a note on that thought.

The thought was sparked by something Appiah said in a note (note 66 on page 337) in The Ethics of Identity.

The US has a singularly expansive free-expression regime, and yet even here, freedom of expression is tightly corseted, and legitimately so. The First Amendment does not protect a contract killer’s verbal contract; it does not protect a fraudulent or defamatory claim…

Bingo. Just what I said. There is no freedom of speech right to make fraudulent claims; that means deliberate falsification of evidence is not protected free speech. I went on thinking about this, because I still agree with Norm and Eve (and Lipstadt and Evans and lots of people) that (ideally, and leaving aside Austria’s particular situation) Irving shouldn’t go to prison for three years for falsifying evidence. So I decided that what we have here is a different right. If we want to put it in US terms (which we don’t, particularly, it’s just that it might clarify), what we have here is not a First Amendment issue but an Eighth Amendment issue. What we’re worried about here is not a putative right to lie but a disproportionality of punishment. (The Eighth Amendment reads in its entirety: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.)

In fact I don’t really particularly think Irving should (necessarily, ideally, in theory, etc) be punished at all, but I do think he should be prevented. That is, since his falsifications are now well documented, thanks to his bullying rashness in suing Lipstadt, I think they ought to be no more protected than claims that cigarettes promote health. That of course is not to say that I think the state should vet scholarly work for accuracy, or that it should get involved at all, but it is to say that I don’t think Irving does have or should have a legal right to tell lies – and that was the issue we couldn’t agree on.

Eve says this, in reply to Lappin’s* “There is, I think, a clear analogy here between the Ellis case and that of a racist candidate for a jury in the trial of a black defendent.”

I have very mixed feelings about this – on the one hand, your jury example is very convincing, but on the other hand I think that setting a precedent of punishing people for the implications of their views, on the grounds that holding the views is bound to make them act in accordance with those implications, is a bit worrying.

It is worrying, for the reasons that both agree on (intimidation of speech and proper academic functioning), but I would say that what’s at issue (Ellis’s suspension) is not actually punishment, but prevention. Leeds, it seems, suspended him in order to prevent him from having certain effects (which Lappin discusses), not in order to punish him. I think that makes a fairly important difference. Not much of a difference to people in that situation who are suspended and prevented, but a difference to the motivation and intention of the agents.

Another point, about something Lappin goes on to say:

But with the racist juror we are not prepared to take this chance. We regard his or her expressed opinions as sufficient grounds for disqualification from the role of impartial judge in a case involving someone directly affected by the potential juror’s racist attitudes. It is hard to see how we can avoid the same conclusion in the case of a university lecturer entrusted with power over students and colleagues.

I’m not entirely sure of my facts, here, but I don’t think that’s actually true – I don’t think ‘we’ exclude racists from juries, I think it’s one side or the other in the trial that does. I think that it is one side of an adversarial process that does that excluding, while the other side would much prefer to keep the racist. (In pre-Civil Rights Mississippi and other places that wasn’t even an issue, because blacks weren’t even eligible for jury duty [under what form of law or custom I don’t know]; for instance the jury who tried the murderers of Emmet Till was all white men who cheerfully acquitted them.) At any rate, it makes something of a difference to the argument, I think, because jurors are generally excluded not on the basis of fairness but on the basis of tactics. Tactics can just as easily prompt a desire for unfairness, bias, preconceptions. Juries are a rather disquieting subject, actually…

*I’ve just noticed I use first name for one, last name for the other. That’s because I’ve swapped quite a few emails with Eve, so I sort of ‘know’ her; it’s not absent-minded sexism, like those people who talk about Dickens and Hardy and Charlotte and Jane.

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