"Please Join Me in Expressing Displeasure with the Draft"

If we can't be civil, is faking it going to help?
February 16th, 2017
How Civility WorksStanford University Press, 2016. 88 pp.


On April 26, 1968, nineteen-year-old Paul Robert Cohen walked into a Los Angeles courtroom wearing a jacket emblazoned with three words, the second and third of which were "the draft," and the first of which was a four-letter imperative rhyming with "truck." Cohen's jacket led to his arrest, prosecution, and conviction for violating California's criminal restrictions on "offensive conduct." The Supreme Court held otherwise: the state could not criminalize Cohen's jacket-wearing. After all, as the court noted, "one man's vulgarity is another's lyric." Perhaps taking this turn of phrase a bit too literally, a long line of performers from Limp Bizkit to Kanye West have since enlisted Cohen's word of choice toward purportedly lyrical ends.

Keith Bybee's little book, How Civility Works, does not mention Cohen v. California, but the case illustrates some of the key puzzles at the heart of Bybee's fascinating reflection on the nature of civility: How does society maintain civility norms when the contours of those norms are constantly in flux? How do people decide when to engage in "strategic incivility," and how does society respond to such instances? And what is the role of social and legal pressures in enforcing civility norms? This slender volume carries its weight by pushing us to consider some of the most important questions about civility.

When is someone entitled to ignore the rules of civility?

Bybee describes civility as "a code of public conduct," much like politeness, courtesy, chivalry, and gallantry. But civility precedes these other forms of "behavioral management" because "its requirements outline the most basic kinds of consideration that we owe one another in public life." Importantly, there is no one single civility norm. There is, rather, a "profusion of different beliefs about correct behavior." These observations also point toward the contingent nature of civility norms. One implication of a growing pluralism—and our growing recognition of this pluralism—is that "as society grows more heterogeneous and complex, conceptions of civility shift, come into conflict, and resolve into new forms."

Some disruptions reinforce existing norms; others change them. Paul Cohen's jacket may still be relatively rare in courtrooms, but most of George Carlin's "seven dirty words" are now common in public settings (even if the Federal Communications Commission still throws occasional fits over broadcast expletives). This kind of normalization creates its own set of challenges. As Bybee quips, "Free expression battles against civility, and free expression creates a need for civility."

Sometimes civility norms change in more complex ways. The government may restrict "fighting words" under the First Amendment, a rule first announced in a 1942 decision, Chaplinsky v. New Hampshire. But the nature and meaning of the words themselves have changed over time. When Walter Chaplinsky called the town marshal a "damned racketeer" and "damned Fascist," the Supreme Court reasoned that "argument is unnecessary to demonstrate that the appellations . . . are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace." Today, it is hard to imagine Chaplinsky's words provoking someone to physical violence, let alone sending him to jail for uttering them.

The dynamic nature of words points toward one of Bybee's most important insights: his discussion of strategic incivility, which is the conscious disruption of existing civility norms. Strategic incivility may be an imperative when "civility becomes an impediment to change, insulating dominant groups from challenge and suppressing free competition of ideas along with experiments in living." We can think of wide-ranging examples: the rules of grammar, the unspoken norms of "polite company," the constraints of Rawlsian public reason, the modes of public worship in many churches. In such circumstances, strategic incivility intervenes to offer "a new code of public conduct." As Bybee notes, Anti-Federalists, suffragettes, civil rights activists, Trump enthusiasts, and Black Lives Matter protesters have all engaged in strategic incivility.

Strategic incivility enlists words and actions to disrupt and unsettle widely shared norms. In response, those controlling the status quo instruct agitators to "calm down and try being more polite." We cheer some instances of strategic incivility and recoil at others. The problem is that we differ about which examples to laud and which ones to dismiss. So when is someone entitled to ignore the rules of civility? Answering this question requires weighing costs and benefits, ends and means, motives and opportunities. And it's not clear that our society currently has the resources to make those judgments. Both the Trump enthusiast and the Black Lives Matter protester may have entirely reasonable arguments for engaging in strategic incivility from an existential plight that feels inescapable without disruptive change.

But what if good manners are not sufficient? What if ersatz civility is at best a placeholder for genuine civility and at worst an omen of looming civic fracture?

Bybee doesn't offer us a framework for resolving these questions, but cases like Cohen and Chaplinsky remind us that law has a role to play in policing the boundaries of civility. The limit cases are relatively easy to ascertain: a municipality may decide to permit protesters to temporarily shut down an intersection, but the law will not tolerate violent protests. Still, I think Bybee is too quick to argue that "law is able to do a far better job of securing agreement on the rules everyone is required to obey" because it has "organizational resources that civility lacks." Extralegal social stigma is a powerful force. As John Stuart Mill observed long ago: "It is the opinions men entertain, and the feelings they cherish, respecting those who disown the beliefs they deem important, which makes this country not a place of mental freedom." Bybee cites the sociologist Erving Goffman for the view that "signals sent by good manners identify individuals with whom one may productively interact." But Goffman's thesis had a darker side. Accepting the person who comports with our sense of good manners means stigmatizing the one who does not, leading him to be "reduced in our minds from a whole and usual person to a tainted, discounted one." As legal scholar Lee Bollinger has argued, "A good case could be made for the proposition that the power of social intolerance exceeds that of legal intolerance."

Bybee argues that "successful" civility amounts to "a matter of individuals going along for the sake of getting along." This conclusion relates to the question of whether "ersatz civility" is sufficient to hold us together. Bybee hedges. On the one hand, he writes that the "great virtue" of civility to demonstrate "good character" brings with it the "glaring vice" that such a demonstration "can easily be faked." But vices aside, faking it seems to be enough for Bybee. Drawing on the work of political theorist Ruth Grant, he observes that "false friends" can "make useful arrangements without requiring deep agreement or genuine affinity." Moreover, "even though one might say that authentic goodness is the ultimate goal of good habits, it remains the case that good manners do not depend on individuals actually becoming more or less who they are pretending to be."

But what if good manners are not sufficient? What if ersatz civility is at best a placeholder for genuine civility and at worst an omen of looming civic fracture? I was left longing for a vision of civility that not only enables civic coexistence but also facilities civic friendship. Surely citizens who understand themselves as part of a shared political project assume a greater responsibility than simply feigning cordiality.

My hunch is that moving toward a more genuine civility will mean placing greater trust in one another, and working to cultivate what I have called the aspirations of tolerance, humility, and patience. For starters, we might question whether our impulses toward strategic incivility are warranted as often as we think they are. To be sure, there are occasions for angry protests and disruptive language. Paul Cohen's message would likely have gone unnoticed had he merely expressed courteous displeasure with the draft. But it may turn out that sticking with civility when we are tempted toward strategic incivility will prove more effective in the long run.

Not everyone will agree. The current political moment does not exactly exude civility. Appeals to civic aspirations seem quaint, and for now some of us may just need to follow Bybee's advice of "going along for the sake of getting along." But eventually we'll have to stop faking it and internalize a genuine desire for civility. The more aspirational sections of How Civility Works intimate how we might get there. And this important book shows us why pursuing that path is as necessary as it is difficult.

 

John Inazu is the Sally D. Danforth Distinguished Professor of Law and Religion and Professor of Political Science at Washington University in St. Louis. He teaches criminal law, law and religion, and various First Amendment seminars. His scholarship focuses on the First Amendment freedoms of speech, assembly, and religion, and related questions of legal and political theory. John is also a Senior Fellow at the Institute of Advanced Studies in Culture at the University of Virginia. His first book, Liberty’s Refuge: The Forgotten Freedom of Assembly, was published by Yale University Press in 2012. His second book, Confident Pluralism: Surviving and Thriving Through Deep Difference, was published by the University of Chicago Press and recently released in May of 2016. He has written broadly for mainstream audiences in publications including USA Today, CNN, the Hedgehog Review, The Los Angeles Times, and The Washington Post.

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