We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.

Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]

Samizdata quote of the day

I have a friend, let’s call her Karen. Karen bootstrapped several Portland businesses, including a coffee shop. She walks in one day and the barista, who is trans, says she had a man come in earlier wearing a MAGA cap and is she obliged to serve people like him? Karen asks, did he say something to you? No, says the barista, but he’s a white supremacist. Karen tells her, first, you don’t know that, and second, you cannot discriminate based on the way someone is dressed. And that, Karen thinks, is that, but no, the barista relays the story to another barista we will call Jen, who goes onto Facebook and posts, “My boss Karen is a Nazi.” Karen learns of this while she is on vacation. She calls her manager and tells her to get Jen into the office. Jen may intuit as much, as when the manager says she needs to speak with her, Jen gets on the floor behind the espresso bar and curls into a fetal position. And you might think, if anyone should maybe not be in customer service, it’s Jen, but no, people prove sympathetic to her and the other barista’s fears and start an online inquisition and can Karen prove she is not a Nazi? And should she not be more concerned with the safety of her employees than some random Republican wanting a cup of coffee?

– Nancy Rommelmann, from ‘Portlandization: It can happen to a place near you

88 comments to Samizdata quote of the day

  • Surellin

    And, somehow, as American cities grow they acquire corrupt, graft-ridden, one-party Democratic governments and become simulcra of Chicago. Which is a reason that I live outside a town of 5,000 people. If I want to dine or go to the theater, the Big City is a short commute away.

  • Roué le Jour

    If peace and prosperity go on for long enough the sheep come to believe that the sheepdogs are their oppressors and the wolves are mythical.

  • Nullius in Verba

    It’s important to also think about what happens when the story is told the other way round.

    “She walks in one day and the barista, who is wearing a MAGA cap, says he had a man come in earlier wearing a dress and asking to be called ‘madam’ and is he obliged to serve people like him?”

    Presumably it’s obvious that the answer is the same. But does everybody think so?

    “And that, Karen thinks, is that, but no, the barista relays the story to another barista we will call Jen, who goes onto Facebook and posts, “My boss Karen is an SJW Nazi. Get Woke, Go Broke.””

    If you can’t see that both stories are describing the same phenomenon (whichever side you support), then you’re probably part of the problem.

    Calling your boss a Nazi is free speech, and firing people for personal political opinions expressed outside work is commonly regarded as a modern moral problem. On the other hand, if the coffee shop goes bust because of it, you can sympathise with the boss who wants to control what their employees say.

    If you employ people in MAGA caps, and then insist that they let trans customers use the ladies, can you prove you’re not an SJW Nazi? Should you have to? Do you have a right to ask them to disregard all their personal political, moral, or religious beliefs and just serve the damned customers? Do we actually understand what problem we’re trying to address here?

  • Calling your boss a Nazi is free speech

    And firing said employee is freedom of association 😉

  • Kenneth Mitchell

    Karen needs to ask her barista, “Does he have enough money to pay for the drink? If so, then yes, you’re required to sell him the drink and get his money.”

    Because that’s how BUSINESS works.

    Oh, and fire Jen for damaging the business.

  • Iain Fraser Orr

    @Perry de Havilland (London)
    And firing said employee is freedom of association

    And if Jen calls her boss an Nazi, yet continues to work for her one must surely wonder about how honestly she believes it.

    But “Nazi” is the new “bitch”, amirite?

    (And FWIW, to NIV’s point, I fully support the right of coffee shops to refuse to sell coffee to MAGA hat wearers or male dress wearers as much as I support the right of bakers to refuse to sell wedding cakes to gay people, even though I disagree with all those choices. I think there should be commercial consequences for such choices, not legal ones.)

  • Nullius in Verba

    “And firing said employee is freedom of association.”

    And so is organising a boycott of the shop, driving them into bankruptcy, because you’ve heard a rumour the owner is a racist Nazi. (Considers the Oberlin judgement…)

    You should have a right to do it, but does that make it moral?

  • The Pedant-General

    “And that, Karen thinks, is that, but no, the barista relays the story to another barista we will call Jen, who goes onto Facebook and posts, “My boss Karen is an SJW Nazi. Get Woke, Go Broke.””

    That is not in any way remotely what “Get Woke Go Broke” means.

    Get Woke Go Broke is the scenario where Karen panders to the staff’s nonsense and supports the first barista in refusing to serve someone.

  • Stonyground

    In my experience, there are none so immoral as the self righteous.

  • bobby b

    “If you can’t see that both stories are describing the same phenomenon (whichever side you support), then you’re probably part of the problem.”

    Except that one seems common and the other entirely hypothetical.

  • Jen may intuit as much, as when the manager says she needs to speak with her, Jen gets on the floor behind the espresso bar and curls into a fetal position.

    The crybully is strong with this one (indeed, with both).

    Nullius in Verba (July 12, 2019 at 4:02 pm), you are addressing your (hypothetical, as bobby b remarks above) scenario to the wrong audience. As a reply to Jen’s Facebook post, the analogy might conceivably do good – if it were not ruthlessly unfriended by Jen or removed as inappropriate by Facebook (but you may find you have been anticipated there, it being so obvious and all). By contrast, everyone here saw that analogy as fast as Karen did when she said “You cannot discriminate based on the way someone is dressed” to her trans employee whom, she presumably (vainly it would seem) hoped might then from those words be inspired to see a similar analogy.

    These baristas who are blind to such analogies, are not “part of the problem” – they are the problem.

  • CaptDMO

    “But he’s a white supremisist.”
    And? He’s a customer.

  • neal

    The cosmopolitan lament while leaving ashes for the locals.
    Read the article.
    An almost English sense of entitlement and lack of skin in the game.
    Best to count the money and let the dead bury the dead, no?

    Perhaps they can ship the newly homeless off in a ship that goes nowhere in particular.
    Pro tip, if your children migrate more than is needed there may be reckonings down the line.

  • P. George Stewart

    @Nullius in Verba

    Bit of a false equivalence there:-

    Original example: “did he say something to you? No, says the barista”

    Your supposed equivalence: “wearing a dress and asking to be called ‘madam’”

    It would be more equivalent if the customer in the first case did something like insisting that the barista agree with the MAGA agenda in some way, or priase Trump, etc., or if the barista in the second case assumed that the trannie was likely to expose themselves to a woman in the toilet, or something like that.

  • You should have a right to do it, but does that make it moral?

    I have no view as to what you think is moral, but I think “Is it a good idea? Is it wise?” might be a better yardstick.

    My view is I am with whichever side takes the position that Brownshirt street riots are not acceptable. To be honest, I think we are within sight of people starting to kill each other in a great many places where that was not the norm. We might not get there, but we are certainly within sight of it.

  • The cosmopolitan lament while leaving ashes for the locals.

    Well there does come a point where if the poor downtrodden locals are unwilling to capitalise on new opportunities blowing into town, it might be better to read what the tea leaves are saying and just take your cosmopolitan jobs and capital elsewhere, somewhere people don’t riot in the streets, and just leave the aggrieved to slide back into the 1970s on their dole money. There are generally a lot of places to choose from where other more enterprising souls, maybe even local ones, are keen to see you arrive so they can sell you overpriced artisanal goodies.

    An almost English sense of entitlement and lack of skin in the game.

    No. I know the author and she certainly has skin in the game. And speaking of locals, I am not convinced the sense of entitlement is coming from the people you think.

  • Nullius in Verba

    “Except that one seems common and the other entirely hypothetical.”

    They’re both rarer than the political rhetoric would have your believe, but not unknown. There has been controversy over both the issue of ‘bathroom bills’ and people in MAGA caps.

    “Nullius in Verba (July 12, 2019 at 4:02 pm), you are addressing your (hypothetical, as bobby b remarks above) scenario to the wrong audience.”

    I would like to think so, but judging by the way everyone is leaping to make a distinction between the cases, perhaps not? If I was addressing the right audience, you’d all have said “Yes, of course.” 🙂

    Thus, for example…

    “Bit of a false equivalence there:- Original example: “did he say something to you? No, says the barista” Your supposed equivalence: “wearing a dress and asking to be called ‘madam’””

    About half the population expect to be called ‘madam’, and nobody thinks that’s unreasonable or harmful behaviour. If you’re working in a shop, you’re expected/required to be polite to the customers, period. All of the customers.

    But while an instruction/exhortation to “Make America Great Again” from a customer is OK, “Please Call me Madam” is somehow totally different and justifies a refusal to serve a customer?

    The point of the story is that the people demanding tolerance for those they agree with are frequently extremely intolerant of those they disagree with, and as has been said, totally blind to the analogy. Because “that’s different”. And this leads to a big problem with stories like this. When politics and liberty are aligned, people are more likely to side with liberty, but then they usually misunderstand the point of the story, thinking it’s all about the politics. ‘Oh, it’s only those nasty political enemies of ours who are being authoritarian’. But when you tell the story with politics and liberty opposed, then all the excuses come out. Like proposing it was “hypothetical” that an LGBT customer might ever be refused service because of what they are (Ha!), or that the issue is that they placed unreasonable demands on you by asking you as a shopkeeper to be polite to people you don’t like and don’t agree with.

    But like I said, if you can’t see that both stories are describing the same phenomenon (whichever side you support), then you’re probably part of the problem. And most people can’t. Politicians are always so authoritarian because they’re seeking the support of voters who are – you can’t fix governments without first fixing the people.

    “My view is I am with whichever side takes the position that Brownshirt street riots are not acceptable. To be honest, I think we are within sight of people starting to kill each other in a great many places where that was not the norm. We might not get there, but we are certainly within sight of it.”

    And we’re just past the 50th anniversary of the Stonewall Inn riots, on a very similar subject. Yes, it can happen. I just don’t think it’s anything new.

  • Avanti!

    I’m glad someone is bringing up this point. There seems to be this belief spreading among libertarian leaning people that there’s a “good” side in this culture war. But there truly isn’t. Whomever of these two sides wins, I think I lose. I have great affection for loads of conservative and leftist individual people. But in the battle of ideas and in the shaping of the culture, it seems obvious to be me that neither *side* are my friends. We pretend that the problem is with the government all the time, but no, that’s nonsense; *problem is with us. People.*. Because the idea of someone living and acting in ways we find repulsive is unacceptable to us and we have to make their lives miserable. Government is just one – the worst and most dangerous, sure – form of this. But there seems to be something in us that never left when we came down from the trees that has to poke the eye of the “other”. I don’t know about any of you, but I despair, because if libertarians don’t oppose this, I expect that no one else will.

  • Julie near Chicago

    Above, July 12, 2019 at 4:34 pm:

    “And firing said employee is freedom of association.”

    And so is organising a boycott of the shop, driving them into bankruptcy, because you’ve heard a rumour the owner is a racist Nazi. (Considers the Oberlin judgement…)

    Nullius, I will give you that there is an area where the bodies of water constituting the Atlantic and the Pacific oceans are not, practically as opposed to conceptually speaking, entirely disjoint.

    But for most purposes, most people understand that there’s an important difference between the two — and this, despite the additional fact that the two oceans are fundamentally composed of the same thing: Water.

    Namely, they don’t occupy the same geographical space.

    Similarly, Gibson’s complaint against Oberlin College had nothing whatever to do with “freedom of association.” Had Oberlin chosen to say they were joining students in boycotting Gibson’s simply because “we don’t like Gibson’s anymore” they’d have been within their rights (though dotty).

    The issue was Oberlin’s complicity in legal libel and defamation of Gibson’s Bakery.

  • pst314

    “Calling your boss a Nazi is free speech, and firing people for personal political opinions expressed outside work is commonly regarded as a modern moral problem.”

    Except that is not mere expression of a personal political opinion, but rather a public slander against the employer. And that is commonly regarded as a moral problem with a legitimate solution–termination.

  • Slander and libel are legally actionable.

    It seems to me that ‘Jen’ may have exposure to an Oberlin sized judgement, or would if she was as endowed as Oberlin.

  • Bruce

    Perry wrote: “And firing said employee is freedom of association”.

    I noticed years ago that there is precious little discussion of “freedom FROM association”. The concept of a “unilateral gentleman’s agreement” springs to mind.

    Have I missed something, or is the legalist onslaught getting out of hand?

  • Julie near Chicago

    The phrase “freedom of association” means the (legal) right to associate or not, according to one’s own desires.

  • bobby b

    “It seems to me that ‘Jen’ may have exposure to an Oberlin sized judgement . . . “

    As a lawyer, I’ll tell you that there are few things as unsatisfying as a legal judgment against the baristas of the world.

  • neonsnake

    Except that one seems common and the other entirely hypothetical.

    I do wonder just how common, though. And whether it’s truly more common for customers in MAGA hats to be treated, on the whole, worse than trans people.

    I mean, there’s these isolated examples, which people surface and talk about, but really, they probably represent a vanishingly small percentage of the interactions that happen across the world, or even just our countries. It’s something I’ve been wondering about for a few weeks, whether we give too much credence to the loudest voices, and risk misinterpreting the size of a given problem.

    I strongly suspect that we’re suffering from our own version of outrage culture.

    As to NIV’s hypothetical example, and whether it’s 100% equivalent in every last detail, let’s just say that precisely 13.8% of it isn’t exactly equivalent. Now what? What does that change about the point of the example?

    I’m unclear what the motivation behind the nit-picking is: the point still stands that if the original post had the situations exactly reversed, then our reactions should be exactly the same.

  • bobby b

    “I’m unclear what the motivation behind the nit-picking is: the point still stands that if the original post had the situations exactly reversed, then our reactions should be exactly the same.”

    I’m still unclear why someone thinks our reactions wouldn’t be the same. And, I’m also baffled by anyone claiming that the situations occur equally often, or even close.

    I live in a very socially liberal area. My ambit encompasses some very socially conservative areas. I’ve seen lots of diversity – racial, preferential, identity – in all of these places. In the past fifteen years, I’ve not seen anyone hesitating to serve someone of a different race, of fluid gender, of non-mainstream preference. I’ve read about it, but mostly in situations that seem to be contrived progressive bullshit.

    At the same time, I’ve seen many interactions expressing hostility for the dread MAGA hat, for the Trump shirt, for the American flag decal, for the NRA decal – for any indication of non-progressive status. I’ve watched violence descend on unwary conservatives as a result of not hiding what they are.

    In my experience, liberals are generally the most bigoted and intolerant people I know, and conservatives are generally the most accepting.

    So, after 60-some years, I doubt that this scenario occurs anywhere near equally often on both sides.

  • Jim Jones

    I doubt the MAGA guy will come back now he has seen what weirdos work at the coffee shop

  • Nullius in Verba

    “I’m glad someone is bringing up this point.”

    Thank you. It’s appreciated.

    “Nullius, I will give you that there is an area where the bodies of water constituting the Atlantic and the Pacific oceans are not, practically as opposed to conceptually speaking, entirely disjoint.

    But for most purposes, most people understand that there’s an important difference between the two — and this, despite the additional fact that the two oceans are fundamentally composed of the same thing: Water.

    Namely, they don’t occupy the same geographical space.”

    Fascinating! 🙂

    “Similarly, Gibson’s complaint against Oberlin College had nothing whatever to do with “freedom of association.””

    Oberlin argued they were simply defending the students’ free speech rights. Saying your boss is a Nazi is regarded as freedom of speech, organising a boycott because of it is seen as freedom of association, and that it has devastating financial consequences for the business is seen as a legitimate consequence of both, by people who believe the slander.

    It’s the difference between “The Atlantic Ocean” and “L’Océan Atlantique”. The two sides can look at the same events and describe them completely differently. What’s obvious rhetorical hyperbole in political free speech to one person is unacceptable libel/slander and death threats to another. What’s joking around and expressing your honest opinion to one person is bullying and hostile intolerance to another. What’s outrageous prejudice and discrimination to one is a reasonable and fact-based precaution to someone else. We see the same things differently, depending on our perspective.

    People can be violently intolerant while honestly believing themselves to be good and tolerant people – indeed, to be fighting for greater tolerance.

    “I’m still unclear why someone thinks our reactions wouldn’t be the same. And, I’m also baffled by anyone claiming that the situations occur equally often, or even close.”

    Because reactions here were not the same. Nobody argued with the first story, several people are arguing with my alternative.

    And nobody said the situations occur equally often. I’d want to see some survey data before I ventured an opinion on that, but given that nobody asked how often the first example occurred, why should they ask about the second? They’re parables to illustrate a point of social commentary – and the point of the parable isn’t about how often such events actually happen, but about our moral reaction to them.

    The point of my alternative story was to tease out whether it was the politics or the liberty we were agreeing with. When politics and liberty are aligned, we can’t tell. When we put them into opposition, we see which of the two is really driving our reaction. And only by telling both can the actual libertarian-rather-than-political point of the story be made.

    The difference here is much smaller than in many other places I’ve tried it (as one would expect for an expressly libertarian blog), and very much more polite 🙂 , but there is a difference.

    “In the past fifteen years, I’ve not seen anyone hesitating to serve someone of a different race, of fluid gender, of non-mainstream preference.”

    I have. But to argue ‘who does it more’ is to fire another shot in the political war. It doesn’t matter for the point in question who does it more – it matters that our reaction to it happening on either side should be the same.

    And if it is, then that’s great. Why are we arguing?

  • pst314

    Nullus: “Oberlin argued they were simply defending the students’ free speech rights.”

    They were lying. Demonstrably lying.

  • pst314

    Nullus: “Saying your boss is a Nazi is regarded as freedom of speech”

    If you really do not understand why it is reasonable for an employer to fire an employee who says that in a public forum then you have a sadly tenuous grasp on reality.

  • Nullius in Verba

    “If you really do not understand why it is reasonable for an employer to fire an employee who says that in a public forum then you have a sadly tenuous grasp on reality.”

    Does that apply to calling the politicians and civil servants running our country nasty names, too? 🙂

    It’s the same argument people make about political correctness in the workplace. If you say something politically incorrect, even outside work, you can be fired, and a lot of people get very upset and angry about that. It’s a controversial point.

    And as I said, while I agree that freedom of association implies a boss has a right to do so, I don’t think it’s always necessarily the moral or wise thing to do. People are entitled to their opinions, encouraging honesty can help resolve conflicts rather than letting them fester, and if it’s known that everything people say about their workplace is polite because they’re too scared of being fired to tell the truth, then such feedback becomes worthless propaganda. You can immediately recognise a dysfunctional workplace that rules-by-fear because everything people say about it reads like a cheesy advertisement written by a brown-nosing marketroid with a gun to his head. A workplace that *allows* dissent but doesn’t get much is more worth believing/trusting.

    In other words, the arguments for the wisdom of allowing free speech about your workplace are exactly the same as for allowing free speech generally. I judge workplaces and bosses accordingly.

    However, not everyone is convinced by the arguments in favour of free speech, and it is becoming less and less common for workplaces to see the advantages of allowing free speech. And if people don’t understand the reasons why free speech is important generally, and will make an exception for the workplace, then what is to stop them extending it to public life generally? They clearly don’t think it’s a good idea to let people say what they believe if they see those beliefs as damaging or dangerous to a business. So what do we do if we see them as damaging or dangerous to society?

  • Bod

    I think there’s a world of difference between being a Portland resident posting “My boss is a Nazi” on Facebook and posting “My boss treated a co-worker badly”.

    In these polarized times it’s very clear what the objective of the former claim is, in contrast to the latter. It’s also clear what the outcome of such (ill-advised) claims could be. I’d have no compunction in firing an employee who slandered me, given that the former is clearly not interested in seeking an amicable resolution to what they see as an injustice.

    I might prefer to do that with the alleged victim of my injustice, but my reaction is far more likely to be favorable than when someone simply Godwins the whole subject.

  • Gavin Longmuir

    NIV wrote (hopefully jokingly): “Does that apply to calling the politicians and civil servants running our country nasty names, too?”

    NIV, I don’t have to explain to you that the barista works for the coffee shop owner, whereas the politicians and civil servants (supposedly) work for us.

    As a boss, it is never a good idea to denigrate one’s employees, even if they are under-performers. However, since We the People have very little influence on who gets elected as politicians and absolutely zero influence on who gets hired as an over-paid civil servant, calling those people nasty names is all that is left to us — ineffective as those insults may be.

  • bobby b

    “Congress shall make no law . . . abridging the freedom of speech . . .”

    That’s the American version of Free Speech – the specific prohibition against government telling us what we cannot say, or what we must say.

    The libertarian aspiration is, of course, somewhat higher. The moral prohibition against quashing speech ought to apply to everyone.

    But . . .

    Tweeting “bobby b is a Nazi!” is a lie – it’s libel – it does unprotected harm. Put that on Twitter – as my employee – and you are gone. This offends my libertarian tendencies not at all.

    Tweet “bobby b is a damned dirty Norwegian”, and I’m not likely to fire you. You’ve told the truth, and you haven’t unjustly harmed me.

    (As a side note, we should remember that, in the USA, if we refuse service to someone because of their politics – the MAGA hat – we might be breaking a work rule, but we’re not violating a law.

    If we refuse service to someone because of their race, gender, or any of the several other immutable characteristics, we are breaking laws.

    So, equivalence arguments get complicated.)

  • Julie near Chicago

    bobby, strictly nit-picking here, but as you know there’s an ongoing battle (not mere argument!) as to whether “gender is immutable,” especially now that there are medical techniques for changing men into women and vice-versa — to some extent at least.

    .

    But with that very minor note, I don’t see how anyone who has a genuine commitment to intellectual honesty, or who even wishes to preserve a façade of some intelligence, could possibly argue with your comment as it is stated.

    Personally, as a libertarian, I don’t think that refusing to serve someone ought ever to be illegal (providing one is not in the employment directly or indirectly of government, and providing the service is not in violation of law on the books — I’m thinking of things like refusing to sell guns to felons, where such law exists). But I also think that a (non-governmental — I trust the shortspeak here is clear) employer has a perfect moral right to chastise, demote, or fire an employee who breaks his (or its) rules about whom to serve or not.

    (This is a matter of freedom of association.)

    To libel or defame either the employee or the employee is, of course, an entirely different matter under our law; and so, in my opinion, it should be. Libel and defamation both are wrongs consisting of the speaking or writing of untruths, and are actionable because they can and often do cause real damage to the business or a person being defamed.

    For example, I quote from

    https://legal-dictionary.thefreedictionary.com/libel

    Libel is the written or broadcast form of defamation, distinguished from slander which is oral defamation. It is a tort (civil wrong) making the person or entity (like a newspaper, magazine or political organization) open to a lawsuit for damages by the person who can prove the statement about him/her was a lie. Publication need only be to one person, but it must be a statement which claims to be fact, and is not clearly identified as an opinion. [SNIP of further interesting explication.]

    bobby, any correction or clarification to this would be quite welcome. :>)

    .

    Indeed, bobby, “equivalence arguments get complicated.” In part this is because they often turn into arguments in which equivocation becomes a useful tool for the twisting of words and the substitution of one concept for another, as in pretending that the legal torts of defamation and libel don’t count in the Gibson case because the case was about “freedom of association” — this having been the implication of Nullius’s to which I objected by pointing out the fact of Gibson’s actual plaint in its lawsuit against Oberlin) — or (later on) “freedom of apeech.”.

    In short, a good way to weasel out of a fact-based conclusion that you don’t like is to change the subject. A good way to do that is to use an inapt but sort-of-reasonable-sounding equivalence argument.

    By the way, Oberlin and its lawyers tried to present an alternative narrative as the true truth. But Oberlin’s conduct shows otherwise.

    The mere fact that X claims Y proves nothing whatsoever … and in this case, pst314n, on July 13, 2019 at 12:16 pm, “tells it like it is.”

    Gibson, however, certainly proved its claims of defamation and slander — untruths stated by various Oberlin officials. (One example of testimony by a witness in subsequent comment.)

    . . .

    As libertarians we can, of course, consider whether there should be libel and defamation laws at all — or indeed, in the extreme, whether there should be any laws. But that’s a bridge too far for minarchist me.

    In fact, “sticks and stones &c” is a nice comforting slogan to hang onto when somebody in the schoolyard has called you a bad name, or even issued a hurtful insult which however has little effect except on your immediate feelings.

    But there is such a thing as emotional abuse conducted by words — “gaslighting” being a popular example currently, whatever we think ought to be done about it as a political matter. (And that’s a very thorny field to try to weed.)

    There is also such a thing as irreparable damage to a business, to a career, to a person’s very life, all achieved by words. The bringing down of Arthur Anderson. Lies and smears against persons too numerous to mention. (Though in the end it was unsuccessful, consider the lie-and-smear campaign against Brett Kavanaugh, which very nearly ended his career as an esteemed jurist; or against Alfred Dreyfus in the infamous Dreyfus Affair.) Men have all to often been put to death because of lies, not to mention falsehoods testified to by persons who honestly believed they were telling the truth.

    And, of course, libel and defamation are made up of words.

    The McMartin case is surely another example of libel and defamation. In fact it ended in a criminal trial, in which McMartins and many of their daycare employees were accused of child sexual abuse. And as a result, the McMartins closed their business.

    So “words can never hurt me” isn’t really true. But it is good for standing strong in the face of mere insult and up to a point in withstanding emotional abuse.

    .

    Whew! Went a teensy weensy bit O/T there. But this is another of those Blanket Rules that Aren’t….

  • Julie near Chicago

    Promised example of witness testimony in “Gibson vs. Oberlin.”

    From Legal Insurrection’s Tweet stream on June 15, typed from screen shot and proofread by me. Readers may wish to check against the original:

    https://twitter.com/LegInsurrection/status/1139942771018612737 :

    ‘Jason Hawk, editor for the Oberlin News Tribune, testified earlier in the trial that he had attended the Nov. 10 protest and that Meredith Raimondo gave him a flyer when he asked what the protest was about. Hawk said in testimony “She argued we didn’t have the right to take photos of the protest,” He [sic] wrote in his initial story that the flyer that said “This is a RACIST establishment with a LONG ACCOUNT of RACIAL PROFILING and DISCRIMINATION” was “literature provided by the Oberlin College Dean of Students Meredith Raimondo, who stood with the crowd.”

    ‘The school didn’t like that description of the event in the local newspaper, and Oberlin College’s director of media relations, Scott Wargo, send [sic] Hawk and [sic] email to retract what they [sic] had written and replace it with “that literature was provided by the organizers and not Meredith Raimondo.”

    ‘Hawk insisted he was not wrong: “Sorry, Scott, but that’s simply not true. Meredith Raimondo handed me the literature.”

    ‘When emailed by Wargo what Hawk had said, Raimondo emailed back, “He is a liar.”

    ‘She had testified in court during her first time on the witness stand that she did hand Hawk one of the flyers, but claimed she did not know he was a media member at the time. She acknowledged again that did [sic] give Hawk a single flyer, even though she had said he was a liar for saying she did so.’

    .

    For those seriously interested, there’s a copy of Gibson’s official complaint to the Court of Common Pleas for Lorain County, Ohio, filed Nov. 7, 2017, which includes one of the flyers at issue, at

    https://www.scribd.com/document/364088568/Gibson-s-Bakery-v-Oberlin-College-Complaint .

    In fact there is a series of court documents from the case at Scribd. Type the string Gibson’s Bakery in Scribd’s Search box.

  • Nullius in Verba

    “Tweeting “bobby b is a Nazi!” is a lie – it’s libel – it does unprotected harm. Put that on Twitter – as my employee – and you are gone. This offends my libertarian tendencies not at all.”

    I’m very tempted to digress into a discussion on the purist libertarian theory of libel! 🙂 (For an example of the sort of thing I’m thinking about, consider this bit by Rothbard starting from where he says: “Suppose, however, that the knowledge is false and Smith knows that it is false (the “worst” case). Does Smith have the right to disseminate false information about Jones? In short, should “libel” and “slander” be illegal in the free society?”)

    But instead, I’ll propose that you just tweet back “Only the naive would believe it when someone on the internet calls someone else a Nazi. Insulting our intelligence.” Or more succinctly, “Jen is a liar.” An eye for an eye. A tooth for a tooth. A tweet for a tweet.

    It’s only a problem if someone acts on it – the act being the harm. If the speech causes the act (as in giving the orders) then there is an argument for punishing the speaker as the author of the act. Otherwise, speech is just speech.

    As ever, the thing to consider with any tool of social control is what happens when the bad guys get hold of it, and use it on you? Suppose every single blog comment has to be fact-checked and lawyered before posting, and the evidence preserved, so that future AI lawyer-bots don’t make a fortune for someone by scanning the internet’s history for libellous statements they can auto-sue for? People use the internet like the laws of libel don’t apply. But they do – it’s just that it’s currently not worth their while to chase them. Personally, I’d prefer to keep it that way, and have it be that the default assumption is that accusations of Nazism on the internet are probably false, than have people thinking “If they don’t sue, maybe there’s something in it?”

    But it’s an interesting question. I accept that opinions may legitimately differ from mine on it. 🙂

    “As a side note, we should remember that, in the USA, if we refuse service to someone because of their politics – the MAGA hat – we might be breaking a work rule, but we’re not violating a law.”

    And in the UK you very possibly would, because “belief” is a protected category under the Equality Act, and that can include philosophical/political beliefs as well as religious ones. There have been a couple of test cases, and ‘belief in democratic socialism’ and ‘belief in the urgent need to act on climate change’ have both been found to be protected. (And hence also their opposites.) There are conditions, though. Not just any belief counts.

    Although it’s an interesting question what nation’s laws comment postings here are actually subject to. If an American posts a comment on a British website that is against British law, is that a crime? Should it be? I mean, obviously if you came over here in person and committed a crime, we could arrest you. So why is it different if you commit your crimes by remote control? Just a thought.

  • pst314

    “I’m very tempted to digress into a discussion on the purist libertarian theory of libe”

    Illustrating why I long ago rejected pure libertarianism as being almost as anti-reality as socialism. Trying to shoehorn life into a simplistic theory is a mistake, but tempting to those who fear complexity.

  • Nullius in Verba

    “In part this is because they often turn into arguments in which equivocation becomes a useful tool for the twisting of words and the substitution of one concept for another, as in pretending that the legal torts of defamation and libel don’t count in the Gibson case because the case was about “freedom of association” — this having been the implication of Nullius’s to which I objected by pointing out the fact of Gibson’s actual plaint in its lawsuit against Oberlin)”

    What I actually said – in answer to the comment “And firing said employee is freedom of association.” was to say:

    And so is organising a boycott of the shop, driving them into bankruptcy, because you’ve heard a rumour the owner is a racist Nazi. (Considers the Oberlin judgement…)”

    That is to say, it was the boycott of the shop I was talking about.

    The concern with such libel cases is not that someone on the internet called someone else a Nazi. (Although I’m sure the lawyers would love it if it were!) The concern is that a mob of idiots will believe the accusation, and either stop trading with the shop or do something even worse. That’s what causes the damage. That’s how it gets to be a tort – there has to be real quantifiable damage, not just words.

    Thus, I may be offended that you called me an equivocator ( 😉 ), but I can’t sue you for libel because your accusation has done me no damage. However, if I could show that your accusation resulted in a rather gullible and naive client of mine cancelling a million dollar contract because of what you said, that might be a different story. But in that case, would I be better off sueing you for the million dollars, as the person who told an unintentional untruth about me, or my client, for believing it without evidence? 🙂

    Or if it turns out my client actually dumped the deal because an imaginary pixie told him I was an evil wizard with three heads, who exactly can I sue for libel then? Maybe when we lose money because other people are gullible and foolish, and believe things because they read on the internet, that’s just one of those things you have to put up with in life? My client can choose not to trade with me for any reason he likes, even false and unjust ones. Not every wrong can be righted.

    I only mentioned Oberlin as another possibly relevant example to stimulate discussion – I wasn’t intending to draw any conclusions about its rights or wrongs by doing so.

  • Chip

    We are still animals hard-wired for violence and fear. The leopards are no longer lurking in the tall grass and the neighboring tribe isn’t raiding our camp at dawn, but our brains are structured to think so.

    The MAGA hat, the endless triggering, and supposedly pervasive fascism and racism in a time of unprecedented peace and tolerance are simply the inability or unwillingness of people to counter their primitive impulses with reason.

  • Chip

    And the irony is that these primitive impulses are being nourished in universities, once the redoubt or reason.

  • neonsnake

    In the past fifteen years, I’ve not seen anyone hesitating to serve someone of a different race, of fluid gender, of non-mainstream preference. I’ve read about it, but mostly in situations that seem to be contrived progressive bullshit.

    My Mileage May Vary considerably 😉

    And nobody said the situations occur equally often.

    NIV, in fairness, I did at least hint in that direction. I note your comment about treating them as parables, which makes sense on one hand. On the other hand, my comment about “common” was motivated from an underlying feeling that when libertarians discuss such cases, the examples always seem to be ones where the “woke” are at fault, and not the other way round.

    Scratching around for a decent (but inevitably inadequate) parallel, would we feel the same about the rugby player recently sacked for expressing anti-gay feelings on Instagram? Had the original post been about that, would we have sided with the Rugby Australia, or would we have, instead, have decided that Rugby Australia’s rules were unreasonable. I don’t know.

    (As a side note, we should remember that, in the USA, if we refuse service to someone because of their politics – the MAGA hat – we might be breaking a work rule, but we’re not violating a law.

    If we refuse service to someone because of their race, gender, or any of the several other immutable characteristics, we are breaking laws.

    On a personal moral note, whilst I feel that neither should be unlawful, I view treating someone badly because of their attitude or behaviour to be very different to treating someone differently due to immutable characteristics. The first can be justified dependent on context, the second, in my view, cannot.

  • bobby b

    “The first can be justified dependent on context, the second, in my view, cannot.”

    And that’s exactly why the “immutability factor as decider” basis of our discrimination laws is a good one. You can be wrong for thinking and doing wrong things, but you can’t really be wrong simply for being who you are. A moral judgment based on something which involves no choice isn’t a proper moral judgment. Moral questions involve choices.

    “My Mileage May Vary considerably.”

    No doubt I’m less aware of it than are you when it happens. Would you at least agree that it happens far less frequently then it used to thirty years ago?

  • neonsnake

    but you can’t really be wrong simply for being who you are

    Agreed.

    Would you at least agree that it happens far less frequently then it used to thirty years ago?

    In my purely subjective experience – absolutely I would agree; I’d further note that twenty years ago was significantly better than thirty, and ten years ago even better, and so on.

    I’m unclear about the last five or so years, however. Part of me thinks that progress has stalled and possibly reversed. I don’t have a firm stance backed up with facts and evidence, it’s more a feeling.

    A post for another time, maybe, but I (tentatively) feel that “identity politics” and “you’re either with us or against us” (on both sides) has a lot to answer for in the sense of reversing progress on such matters.

  • What Nullius calls ‘nitpicking’ his analogy, I call being accurate.

    1) Both the UK and US highest courts have given judgement for bakers who refused to utter (in speech or in icing) messages with which they disagreed, though IIUC both courts would have found against the bakers if they had merely refused to let the complainants buy an existing cake from their shop. If I understand correctly, they would therefore find for the barrista when the trans says “call me madam” and later sues because the barrista did not utter that word, whereas they would find for the man who merely wore his MAGA hat but did not demand that the white leaf shape at the top of his frothed coffee instead say “Trump’s the man” or similar. When courts, without being unfair according to their claimed rules, will uphold one but not the other, then the analogy has a problem: it’s not analogous. (Neonsnake suggests this is “13.8%” of the point but others can as reasonably call it 93.8% of the point – or 100% – or, more usefully, just important to notice if you want an analogy to be persuasively analogous.)

    2) As libertarians, we are not socialists, so defend Karen’s right to direct her barristas. However if it were Karen herself who directed refusal of service in either case, then freedom of association, though (IIUC) not mere freedom of speech (and certainly not today’s US or UK courts), would defend her right to do so. (Exercise for the reader: insert FoA equivalent of FoS ‘deny what’s said/defend right to say’ here as desired.)

    3) My own critique (Niall Kilmartin, July 12, 2019 at 7:26 pm) was mainly about the strangeness of Nullius’ appearing not to notice that a valid analogy was embedded in the original story: Karen’s ” you cannot discriminate based on the way someone is dressed.” is obviously dropping a hint to the trans barrista – a hint the latter apparently failed utterly even to perceive.

  • neonsnake

    What Nullius calls ‘nitpicking’ his analogy, I call being accurate.

    Nullius didn’t, I did.

    So let me up my 13.8% to exactly 15%, by removing the words “and asking to be called ‘madam'” – which appears to be the bone of contention – from Nullius’ original example. So it was 85% equivalent.

    I’ll defer to Nullius to decide how important the “and asking to be called ‘madam'” is to his original point. I don’t think it changes the meat of his argument; however others appear to think so.

  • neonsnake

    Also worth noting that “asking” to be called madam is very different to “demanding” to be called madam.

  • Nullius in Verba

    “NIV, in fairness, I did at least hint in that direction.”

    Did you? I had a look at your comment and I didn’t think so. But if so, I apologise to bobby b.

    “I note your comment about treating them as parables, which makes sense on one hand. On the other hand, my comment about “common” was motivated from an underlying feeling that when libertarians discuss such cases, the examples always seem to be ones where the “woke” are at fault, and not the other way round.”

    I think my issue was that there’s a political identity-affirming message in this, too. The story is pointing out how an ideological opponent did something bad, which confirms and supports our belief that we’re good and they’re bad. The problem with adding my alternative story is that it spoils this effect – giving both stories equal prominence gives the impression that we’re both equally bad, if you’re looking at it as a demonstration of bad behaviour being related to ideology. Viewed politically, bobby b has a point.

    However, that wasn’t my intention, and it wasn’t what I said. My aim was to cancel out the politics and make it about the liberty. I wasn’t making a political statement that attacked both sides for being illiberal. I was saying you have to keep the political point-scoring out of it if you want to make it a libertarian point.

    “Scratching around for a decent (but inevitably inadequate) parallel, would we feel the same about the rugby player recently sacked for expressing anti-gay feelings on Instagram? Had the original post been about that, would we have sided with the Rugby Australia, or would we have, instead, have decided that Rugby Australia’s rules were unreasonable. I don’t know.”

    When it came up, I think my comment was that it was the law itself that was unreasonable. But hardly anyone else commented, so that’s not much help.

    “And that’s exactly why the “immutability factor as decider” basis of our discrimination laws is a good one.”

    Is religion immutable?

    There are plenty of immutable characteristics that are not protected, and some of those that are protected are not precisely immutable – I think the criteria are something else. I think it’s more about characteristics where actual discrimination is widespread, unjustified, and causing serious conflict or suffering in society. Although I’ve not thought about it deeply, and would welcome thoughtful disagreement.

    “I’ll defer to Nullius to decide how important the “and asking to be called ‘madam’” is to his original point. I don’t think it changes the meat of his argument; however others appear to think so.”

    As I recall, I added the phrase in to make it clear that the person was identifying themselves as transgender and not simply a man in a dress, and to make it explicit that the customer had evinced a political position that the barista in the MAGA cap would be likely to have disagreed with. It was intended to be interpreted as a statement, not a demand, and I made a conscious choice to use the word “asking” so it was clear it was just a request. (I accept in retrospect that it’s still slightly ambiguous.)

    The issue the barista and owner were discussing was whether the customer should be served, I didn’t initially bring up the question of whether the customer should also be called “madam” while doing so. And it wasn’t about whether it was legally required under discrimination law (since there’s no legal requirement in the US to serve someone in a MAGA cap, there’s no analogy to be made), it was as I saw it about tolerance for political differences when running a business.

    However, I did later bring up the common expection that shopkeepers are expected to be polite to customers – again, not as a matter for discrimination law, but for sound commercial reasons. Trans customers are used to awkward social reactions, and mostly want to keep their head down and avoid trouble. Only the wild-eyed angry activists do things like sueing a coffee shop for misgendering them. However, their reaction to being deliberately and repeatedly called “Sir” would be much the same as that of the average woman on being called “Fatty” by the server – it’s interpreted as deliberate rudeness. They probably wouldn’t sue, but they might very well complain to the management. Or they might just walk out in tears.

    But I’m not implacably attached to the wording. If you think it works better with the request removed, please do so.

    “My own critique (Niall Kilmartin, July 12, 2019 at 7:26 pm) was mainly about the strangeness of Nullius’ appearing not to notice that a valid analogy was embedded in the original story: Karen’s ” you cannot discriminate based on the way someone is dressed.” is obviously dropping a hint to the trans barrista – a hint the latter apparently failed utterly even to perceive.”

    The trans barista may well have perceived it. It was the barista’s colleague Jen who didn’t.

    Karen talked to the first barista, made the point, and presumably the barista accepted it because the conversation ended with Karen thinking the matter was over. We’re not told in what way the first barista told the story to Jen, or whether the analogy was passed on. I’m not sure it would have made a difference. Jen has no special personal investment in preventing abstract clothing-based discrimination, she appears to be a political tribalist who expects to be able to bring her political activism into the workplace, and is upset when that’s refused.

    The trans barista wasn’t a problem. She presumably served the customer in the cap and only asked Karen the question later, and apparently accepted the answer calmly and responsibly. It was Jen who went off like an irresponsibility bomb, and who was eventually found curled into a fetal position behind the counter. It’s Jen who provides all the drama in this story. And the embedded irony of a trans barista objecting to how someone else is dressed has nothing much to say about Jen.

    It occurs to me that maybe the original author of the piece was being more subtle about it than I was inclined to be. Start by providing political identity-affirming stories with the libertarian morals in the background, and only when these have been thoroughly absorbed do we bring them out more explicitly. It’s a point, and for some audiences I’d probably go along with that. But some day you have to remove the training wheels and see whether you’ve got a libertarian or just a political partisan with libertarian leanings when it’s not too inconvenient.

  • neonsnake

    Did you? I had a look at your comment and I didn’t think so. But if so, I apologise to bobby b.

    I’ve at least been wondering about it (basically, are we looking at extreme outliers and extrapolating to say “look!! It happens all the time!”, when in reality, it’s no more common now than ever, but social media makes it seem so. I don’t know the answer, but it bothers me), and have said so elsewhere, so it’s not unlikely (or unreasonable) for bobby b to have picked up on it.

    It shouldn’t distract from your point, but I fear I may have done so.

    I was saying you have to keep the political point-scoring out of it if you want to make it a libertarian point.

    And FWIW, I found your example just as instructive as the first.

    a political partisan with libertarian leanings when it’s not too inconvenient

    I do sometimes wonder what a scatter plot on the Nolan chart would currently look like, with a large enough sample size.

  • …and the neighboring tribe isn’t raiding our camp at dawn

    So sayeth someone probably living in a reasonable burb in the First World, but the truth is that very much depends on which part of the planet you live.

  • bobby b

    “My aim was to cancel out the politics and make it about the liberty. I wasn’t making a political statement that attacked both sides for being illiberal. I was saying you have to keep the political point-scoring out of it if you want to make it a libertarian point.”

    I doubt anyone here would argue your point about discerning the liberty-based nugget of the lesson to be taken from the Portland story. I wouldn’t.

    My issue was simply with the example you chose to use in presenting it – it didn’t come off as “it would be just as bad if it happened in the opposite direction, and we ought to understand why”, but instead “since we do it as much as they do it, we’re no better.”

    The new concept of “snowflake” didn’t pop up because conservatives were being so aghast and offended by words. It was driven almost entirely by the behavior of the progressives. Do people mostly get kicked out of colleges and jobs and communities by being outwardly progressive, or by being outwardly conservative?

    I’m sure one can come up with examples of both, but I think they happen far more in one direction than the other. I have Democrat friends who have lots of bumper stickers. “Fuck Trump” is the current trendy one. They put them on their cars with impunity. I’ve had mild stickers expressing conservative values – NRA, etc. – but I’ve stopped, as they are routinely vandalized, along with the underlying vehicle. It’s one-way.

    So, I’m not disagreeing with your underlying point, just quibbling over your example. Sure, it’s bad when dogs bite humans, and it would indeed be just as bad for humans to bite dogs, but c’mon . . .

  • neonsnake

    I’m sure one can come up with examples of both, but I think they happen far more in one direction than the other.

    I’ve been mulling over Nullius’ point that they’re parables, and I think there is a lot of wisdom in it. I tend to “bite” in one direction, and he (and you, Julie and Gavin) gently bring me back down.

    In the new Samizdata world that Perry is trying to get to, I think there’s some sense in us all taking a step back.

    Week or so ago, you advised me to check my terminology and what I meant by “socialism”, which I took as a wise intervention.

    When I said my mileage may vary – I meant the wink more than the preceding words; I hope you didn’t take it as a “chide”.

  • Nullius in Verba

    “So, I’m not disagreeing with your underlying point, just quibbling over your example. Sure, it’s bad when dogs bite humans, and it would indeed be just as bad for humans to bite dogs, but c’mon . . .”

    *Both* sides are utterly convinced that the other side does it more. But that’s the nature of partisan polarisation and ‘filter bubbles’, and it wasn’t a subject I wanted to get into. Like I said above, I’d not want to comment on which side actually does more of it without seeing some proper statistics/surveys on the subject. Anecdote is obviously unreliable. But it does happen, on both sides, and both sides argue when the specific cases are pointed out that those are rare exceptions or exagerations or distortions or there are reasons.

    But for what it’s worth, the issue of transgender customers getting grief in shops *has* been studied, and it’s been reported that 31% have been “denied equal treatment or service, verbally harassed, or physically attacked in public accommodations in the past year because of being transgender”.

    Now maybe more than 31% of MAGA cap wearers have been harassed or denied service in the past year because of their headgear, and maybe not. Maybe more than 40% of MAGA cap wearers have been driven to attempt suicide because of their treatment at the hands of society, and maybe not. I don’t know. I’ve not seen any studies on MAGA cap wearers. And for the purposes of the current debate, I don’t consider it to matter. But when I raised that coffee shop example, I didn’t just pluck it out of thin air. I’ve seen it happen.

    For the past couple of thousand years it was a lot worse, of course – it’s only been in the last couple of decades that things have progressed to the point where 69% of TGs could last a year without getting harassed in shops and restaurants. But we’re not quite there yet, and there’s still a significant fraction of the population who are not happy about TGs being allowed out of the shadows. (Nor are they exclusively on the right – some of the worst are the radical feminists…) I gather it’s significantly worse in the USA than the UK, too – the so-called ‘bathroom bills’ and the current controversy over TGs in the military are a couple of other indicators that not all is well.

    So no, I’m not going to give a pass to claims that it’s so vanishingly rare it’s not worth mentioning – like “man bites dog”. But nor do I want to turn this into an argument over which side is worst. My point was simply that if you keep on picking examples where politics and liberty are aligned, nobody can tell whether you’re supporting the politics or the liberty. Only by demonstrating that the direction of the politics makes no difference, which inevitably requires giving examples both sides dislike politically, can the point about liberty be demonstrated and made.

  • Nullius in Verba

    “In the new Samizdata world that Perry is trying to get to, I think there’s some sense in us all taking a step back.”

    A fair point. I’m going to take a break from this topic – I’m obviously getting a bit too emotionally involved! 🙂

  • Fraser Orr

    bobby b
    If we refuse service to someone because of their race, gender, or any of the several other immutable characteristics, we are breaking laws.

    A curious addendum to this is that there are attempts to add “gender fluidity” to the list of characteristics against which we may not discriminate. This being the exact opposite of an immutable characteristic, that is to say the specific mutating of a hitherto immutable characteristic.

    I’m not expressing a strong view either way on this, I just find it a linguistic curiosity.

  • neonsnake

    I’m obviously getting a bit too emotionally involved! 🙂

    Maybe. Still, it troubles me that the example used as a starting point involved a transgender server, when the issue was the outraged friend. I’m unclear what the purpose was of pointing out that the server was trans, when it made little difference to the outcome.

    (I’m not unclear. Not really. I wish I was)

    Which is why I made the point that your counter-example was just as instructive.

  • Avanti!

    This from NIV,

    “Only by demonstrating that the direction of the politics makes no difference, which inevitably requires giving examples both sides dislike politically, can the point about liberty be demonstrated and made”

    Rings very true to me.

  • Avanti!

    It’s not only interesting, it’s troubling. The type of position I find comfortable is really the type of position neither side would find acceptable, i.e., religious people – or anyone – shouldn’t have to bake individualized cakes for people they find icky, but I personally prefer to patronize businesses that won’t refuse to give equal service to the those “icky” people.

    The moment the people on the far left or the people or the far right think my opinions are reasonable, I begin questioning whether I’ve framed my positions correctly. Hah!

  • Paul Marks

    This sort of behaviour is LEARNED.

    Call someone a “Nazi” or a “white supremacist” if you happen to disagree with them – and the modern education system (and so on) will support you (not call you out as a lying piece of shit).

    And play-the-victim (curl into the fetal position – scream, or cry) and you get sympathy – rather than being told to behave with some basic dignity.

    O’Sulivan’s law comes to mind – the idea that anything that is not explicitly right wing ends up under the control of the left.

    One of the popular arguments for capitalism is (and I have used it myself) that business enterprises do not care about your political or cultural opinions (or your race – or whatever), they just want you as a customer.

    But that is no longer true – these days the business is staffed by the “educated” – even most managers are (to some extent) “Woke” Social Justice Warriors – filled with anti capitalist bias (even though they are in charge of capitalist enterprises). It is not just the media and the internet companies – such things as the banks and the payment processing companies get more “woke” every year – meaning that, eventually, political or cultural dissent will mean death by slow starvation.

    But there is a gap in the market here – if it is acceptable in law to discriminate against Trump supporters, then it must be acceptable in law to discriminate IN FAVOUR OF THEM.

    “We only hire Trump supporters here” or “this inn welcomes Trump supporters” signs.

    But Paul this means society will become political!

    Society is already political – but only the left are really fighting the culture war. It is time to fight back – accept that “everything is political” (because the left have made it so), even where one buys coffee.

    And it is about a lot more than Donald Trump – make no mistake, the left want to WIPE OUT the non left, and will use any means (any means at all) to exclude the non left from all aspects of life – including employment, holding a bank account, engaging in financial transactions, and so on.

    The similarities between Facebook’s definition of a “Hate Agent” (to be persecuted and destroyed – often for very vague reasons, amounting to “they have different cultural or political opinions to the left”) and the Chinese “Social Credit” system are striking.

    Silicon Valley is very much in the grip of a totalitarian ideology – which they (without an hint of irony) call “liberalism”. But it is not just silicon valley – it is “Woke” business in general, even down to coffee shops now.

  • bobby b

    “I hope you didn’t take it as a “chide”.”

    Oh, gosh, not at all. And, it did remind me that I was being somewhat like the apocryphal lady who said “how could Nixon win – I don’t know anyone who voted for him?!” I’m likely more cognizant of slurs against white 60-year-old guys with guns than you are. You’re likely more cognizant of slurs against guys with “lower-class” english accents. We all – I – forget that at times.

    “I’m unclear about the last five or so years, however. Part of me thinks that progress has stalled and possibly reversed.”

    USAToday just published survey results that entirely support what you’re saying. I read those results more as a backlash to an overreach – every cause seems to be carried too far by someone – but there was indeed a lessening of support for the Cause. (I say “Cause” to differentiate it from the idea of accepting gay individuals. I doubt that has changed – just the reaction to militant LGBTQ movements.)

    “Is religion immutable? . . . There are plenty of immutable characteristics that are not protected, and some of those that are protected are not precisely immutable – I think the criteria are something else.”

    No, religion isn’t immutable. I think that immutability remains a very worthy center of definition for what we ought to protect, but once it entered the common lexicon, everyone saw the advantages of defining “immutable” for themselves.

    If you believe that gay people simply decide to be gay, then preference isn’t immutable. If you believe that you’re wired from birth, then it is immutable. If you see trans people as people who simply decide one day to be the other gender, it’s not immutable. If you see them as finally acknowledging some kernel of their self as being the other gender, it is immutable. So, the application of the “immutable” standard becomes the new fight that cannot be logically argued without settling the underlying controversies.

    (Neonsnake, I know some TG people who firmly fall into the “immutable” camp as I define it above, but at the same time, the entire subject of gender dysphoria is presently in such an uninformed, juvenile state that the umbrella has been taken over by a Cause, and we’re being asked to extend protections to people who are more likely simply very confused or even suffering from mental illness.

    I have one TG friend who was the one who got to escort my then-6-year-old daughter into the women’s room at the state fair every time she had to go, but the TG world is now overpopulated by people to whom I would not grant such trust. The bathroom bills to which NiV refers are aimed at those people, not people such as my friend. Once the psych world gets its stuff together and works out who is truly TG, this entire topic will settle out. We’ll know we’re close to that when a profit-driven industry stops performing genital alteration on minors.)

  • bobby b

    “I’m unclear what the purpose was of pointing out that the server was trans, when it made little difference to the outcome.

    (I’m not unclear. Not really. I wish I was)”

    I read it differently. (Surprise!)

    In our current society, that trans server is taught that the sort of person who would wear the MAGA hat is dangerous to someone like her. (I strongly disagree with that, but that’s irrelevant here.) The fact that the server was trans gave credibility to her question to the owner – in our current narrative, who has more right and cause to fear the MAGA than a TG person? The owner told her it was not a factor in who she should serve, she accepted that, and it was over – except for the fact that this non-trans Jen, who had no obvious reason for her own fears, melted.

    Telling that she was TG simply gave her credibility and explained the original query to the owner. The contrast to the status of the snowflake made the snowflake seem that much more indefensible.

  • Chip

    Portland is in the first world. The post and thread is about first world reactions to first world threats.

    Or am I missing something?

  • neonsnake

    Telling that she was TG simply gave her credibility and explained the original query to the owner

    Ahh, ok. I buy that, that makes sense when put like that.

    @Avanti – I’m in the same position as you; that’s why I found NiV’s counter-example more instructive as a “check yourself” exercise than the initial post.

  • Nullius in Verba

    “I’m unclear what the purpose was of pointing out that the server was trans, when it made little difference to the outcome.”

    I read that part similarly to bobby b. The point of the story is that people who think of themselves as extra-special tolerant, fighting for tolerance are going overboard in the other direction and becoming authoritarian/intolerant in their attempt to do so. It’s a point I agree with. In revolutions, the persecuted and persecutors sometimes just swap seats. There is always a boot stamping on a human face, but we take turns wearing the boot.

    Think of it as a parable. Why was the man who rescued the injured Jewish traveller a Samaritan? Because Samaritans were a despised ‘outsider’ class to the Jews, and the Priest and the Levite were respected community leaders. Who is his ‘neighbour’? The people supposedly ‘on his side’ politically, or the people who tolerate and help him? The identities of the players are archetypes for the entire social groups the parable is really talking about.

    I agree with the point of the original story. But it only covers half the message I’d want to send, because when you’re telling your parable to an audience of both Levites and Samaritans, they interpret the archetypes differently, and half your audience will get the wrong message.

  • Avanti!

    @neonsnake,
    Exactly the same for me.

  • I’m unclear what the purpose was of pointing out that the server was trans, when it made little difference to the outcome.

    The reason this story grew some legs where a similar story about a server of no particular description (other than anti-MAGA) might not is – incredibly – obvious.

    A member of a group that is sometimes recognised by how its members dress (and, being thus recognised, is sometimes discriminated against) proposed discriminating against a member of another group that is also sometimes recognised by how its members dress (and, being thus recognised, is also sometimes discriminated against). Their employer replied, “You cannot discriminate based on the way someone is dressed.”, whereupon the employee so completely failed to spot the analogy that they complained to a co-worker who then called the boss a nazi.

    One reason why a certain story grows legs where other superficially similar stories do not is because one has an inner completeness, its point wholly contained in its narrative, while others does not – and so might indeed warrant some “and if the roles were varied” analysis that the complete story provides within itself. The complete story is also a joke, where other stories could merely be anecdotes or datapoints.

    As however, I’ve already commented on this twice, and people are still asking what the barrista’s category has to do with it – and speculating counterintuitive answers – I shall now quit lest I too become “too emotionally involved” – at the (to me) strange obtuseness displayed in various comments above. 🙂

  • neonsnake

    This being the exact opposite of an immutable characteristic, that is to say the specific mutating of a hitherto immutable characteristic.

    Linguistic curiosity or not, it’s made me question my earlier statement about characteristics vs behaviour – what if it’s not immutable? What if it is a choice, a “lifestyle choice” as these things are sometimes termed.

    Does it matter? Should it matter? I’m coming down hard on “Nope.”

  • neonsnake

    whereupon the employee so completely failed to spot the analogy that they complained to a co-worker

    If that’s the case, which goes against bobby b’s and NIV’s reading of it (which is that the trans server was satisfied, and merely relayed the conversation to her curious co-worker), then it supports the need for NIV’s counter-example even more, since it portrays the trans server as intolerant (as well as, not instead of her “well-meaning but intolerant” colleague Jen).

    At which point, with apologies to NIV and bobby b, I will start wondering what the relative stats are for trans people being intolerant of others, vs being on the receiving end of intolerance, with a short glance at the relevant statistics, since stories like these (without the countering example from NIV) propagate a narrative that trans people are the oppressors, not the oppressed.

    Such narratives feed into my fear of identity politics – they’re trans, ergo they’re probably anti-Trump (can’t think why) – ergo they’re intolerant, and leftist, and so on and so forth. And on the flip side, we’re rightist, ergo we’re pro-Trump, ergo we’re anti-trans, and intolerant – and so on and so forth.

    The reality being, of course, something really very different, but as someone up thread said – if we’re not challenging those narratives, then who will?

    (bobby b – I believe the answer to our mutual query over why tolerance is reversing is due to identity politics, and this idea that if you believe “A”, or possess characteristic “B”, then you automatically believe in everything else that people associate with it, including the militant fighting for the Cause, as you put it, and with which I wholeheartedly agree)

  • Fraser Orr

    My question about this is simple: is this real or is it all just a manipulative plot? Let me give you two examples to explain what I mean:

    1. Jen, on social media, calls her boss a Nazi, yet turns up for work the next day. Seriously? If you found out your boss was a Nazi would you turn up for work the next day?

    2. A gay couple ask a baker to bake them a wedding cake to celebrate one of the most important days of their lives. The baker says “I don’t believe in gay marriage so I can’t help you.” This might not be a very pleasant encounter, depending on how much of a jerk the baker was about it, but even if he was nice, nobody wants rain on their parade. But really, if you were this couple would you really want this symbol of your love to be baked by someone who thought what you were doing was ugly and sinful?

    Now, in a world where Jen only has one choice or where there is only one baker in town perhaps they might suck it up and deal with the negative side of things. But in a world where every coffee shop has “We’re hiring!!!” signs, and where there is a baker on every street corner, one might wonder about the earnestness of their claims.

    In the first case, Jen doesn’t really think her boss is a Nazi, her behavior betrays her. It is merely, as I said earlier “Nazi” is the new “b*tch”.

    In the second case are the couple really more concerned with getting a wedding cake or making a point?

    (BTW, I put b*tch in that form because it seems Samizdata filters out comments for moderation using that word but not the word “Nazi”…. a sign of the times perhaps.)

  • bobby b

    “But really, if you were this couple would you really want this symbol of your love to be baked by someone who thought what you were doing was ugly and sinful?”

    To be fair, if someone declined to serve me because of some immutable characteristic of mine – not because they disagree with me, but because they disagree with the very existence of me – I think it would likely raise my dander enough to take the fight right back to them.

    I do understand that that’s not what the cake baker was conveying – it was his unwillingness to participate artistically in something he sees as a violation of a holy sacrament, and he was perfectly willing to sell a gay person a cake any time – but I’m sure that in the perception of the would-be customer that’s a very fine point, and we all tend to personalize such things.

    Jen, however, was simply a snowflaky little b*tch.

  • neonsnake

    want this symbol of your love to be baked by someone who thought what you were doing was ugly and sinful?

    I think it very much depends on the person, Fraser.

    If I can get a touch personal, although I’m currently with a woman, I swing both ways. Were I to want to marry a bloke, and I was refused a cake, I’d be prepared to have the fight, and I’d take some pleasure in it.

    But I’m naturally aggressive, and as bobby b says, if my dander is up, I’ll take it all the way.

    Depends how it was handled – if the baker was like “neon, you know I like you, I know you’re with a bloke and that’s your business, and anything else I’m cool with, but this is too much, brother. I’m a Christian, and you’re asking too much”, I’d react very differently to “you’re an abomination!”

    If they got my hackles up – then I’d do whatever it took to shame them into making the cake, and I’d smirk whilst me and my beloved cut it at our ceremony.

    But that’s me. I’m gleefully an aggressive person. My job requires it 😀

    Others may not be, and your point stands.

    Jen, however, was simply a snowflaky little b*tch.

    ROFL

    *Hat tip*

    Oh, god yes! Quote of the day.

    “Lord save me from those with my best interests at heart”

  • Fraser Orr

    bobby b
    I think it would likely raise my dander enough to take the fight right back to them.

    I think it is an interesting comparison. I think it is perfectly fine, in law to tell people what they must not do (for example, kill people, or steal from people and so forth) I think it is a whole other level when the law starts telling people what they must do. I think there are certainly some things that we must do but this is case is the very essence of government. Normally a commercial transaction is a voluntary agreement between two people where they both consider themselves advantaged by its conduct. But here the government is insisting that the baker engage in a transaction that he doesn’t want to do, a non voluntary transaction where the baker considers it a lose for him (perhaps he thinks it threatens his immortal soul, or perhaps he decides that he feels so strongly that he won’t do it and so must go out of business.)

    I find that quite troubling, even though I think refusing to bake a cake for a gay wedding is an extremely stupid thing to do.

    What I find equally troubling is that it seems that this baker and others are now dealing with a litany of one claim after another, essentially a barratry from many different parties, where he has to engage himself constantly in legal defense rather than baking cakes. It is a deep flaw in the legal system that I don’t really know how to fix. Even loser pays doesn’t compensate the baker for the stress and lost opportunity dealing with the case. I myself have been sued a few times and it is a horrible experience. I remember one guy, who was very wealthy, threatening to make me spend my life in court defending against one unjustified claim after another. “I’ve got more lawyers than you have years to live”, I believe was what he said. Regardless of whether you get dismissed at summary judgement, the defendant is still spending tens of thousands of dollars each time to defend himself, and that doesn’t even deal with the reality that some pinhead judge might think the claim has merit and leave you with insane costs. I’d be interested to know if you think there is a viable fix to this problem.

  • Fraser Orr

    @neonsnake
    then I’d do whatever it took to shame them into making the cake

    FWIW, you seem like a pretty decent person to me, but AFAICS this is not at all a viewpoint I admire. A desire to force someone to do something that they don’t want to do just because they didn’t agree with you, or because they didn’t agree with you in a manner to your liking, is kind of a shitty way to behave, IMHO. And to use the force of government through the law courts to do it is even worse.

    I might be overly sensitive because I have been on the other side of people using the courts to force me to do things I didn’t want to do (not baking cakes or discriminating obviously, but commercial transactions that I didn’t want to do for commercial reasons), and so it is easy to have that schadenfreude until you realize that the power you see gleefully wielded can very easily be turned around against you.

    I object just on principle to the government forcing people into transactions that they don’t want to do, but I’d also say that from a utilitarian point of view you might want to reconsider. I have been thinking about this in regards to the tax proposals from some on the looney left. AOC assures us that her 70% tax will only be on the tippy top. So too, Elizabeth Warren assures us her 4% wealth tax will only be on the tippy top.

    But just remember that the income tax was originally only for the tippy top, and I suspect most of the readers here both pay income tax, and don’t consider themselves the tippy top. Similarly the AMT was for “tax dodgers”, but today I suspect a surprisingly large number of our American readers have either paid AMT, or come pretty damn close to paying it.

    Today it is the tippy top, tomorrow it is everyone.

    (As a pure aside, if you consider some of the more radical proposals for income tax, for example, an 80% top rate. If you add in California’s top tax rate of 12.3%, then add Social Security at another 2.3% x 2, plus, if you uncap Social Security, at 6.2% x 2, that gives a total marginal tax rate of 109.3%. Which is to say on the margin you have less take home pay by earning more. Of course rich people have ways to turning plain income into other types of tax income, which would reduce it. But on the face these proposals are utterly insane.)

  • Avanti!

    Agreed that it is horrible that someone should have to repeatedly defend themselves from malicious suits. Though I personally feel impelled to try to find someone else to do business with, rather than patronizing someone who excludes other people based on something like the hat they wear or whom they want to marry or have sexual relations with, they still shouldn’t have the state used against them. That’s a clear flaw in our legal system for me and I’d be open to any solutions that wouldn’t grow the state. At the moment, there doesn’t seem to be any recourse.

  • neonsnake

    because they didn’t agree with you in a manner to your liking, is kind of a shitty way to behave

    I’m not perfect, for sure. I can be a bit shitty.

    On the other hand, I’ve been put into hospital a couple of times by those people who didn’t agree with me acting in a manner not of their liking, so y’know.

    And I never said I’d involve the government.

  • Avanti!

    @Fraser, for what it’s worth I don’t think neonsnake is implying that he’d use the power of the state in this case (though he may be, I don’t want to put words in his mouth), but rather shaming the business owner into it. Personally, I wouldn’t do either thing (I don’t like doing business with people who exclude otherwise decent people over things of this sort) and would rather just remove myself from such unpleasant situations and avoid the place in the future. What’s to be gained? I don’t see it. This applies across the board, by the way. The “no maga hat” coffee shop is less likely to get my business as well. It wouldn’t even be a matter of a coordinated boycott, because I wouldn’t care if they did business forever. I just personally would rather have nothing to do with them if not necessary. I tend to prefer to do business with people I don’t dislike. And I tend to like people a little less when they exclude others for things of this sort.

  • Avanti!

    @neonsnake

    Glad I wasn’t misrepresenting you.

  • Gavin Longmuir

    Fraser O; “But here the government is insisting that the baker engage in a transaction that he doesn’t want to do …”

    Hmmm! I had never thought of it that way before. The government, which in principle is you & me, is behaving as a slave owner. (pace Julie — an actual tote-that-bale slave owner, not a slave master). So you & I are unwitting slave owners. Doubleplus ungood.

    Of course, the government tells you & me to pay taxes which many of us really do not want to do, under threat of destroying our lives in the event we do not comply. Which sounds like we are slaves … to ourselves. This line of thought is discomforting.

  • bobby b

    Fraser – I agree with everything you typed.

    I wasn’t trying to defend the legal system that spawns such actions – just the human impulse that would guide someone into declaring war on the baker and using whatever tools are out there to get that pound of flesh. “No, I won’t sell you those widgets” and “you’re an abomination and ought not exist” reasonably trigger vastly different responses.

    As for the serial litigation problem – our legal system has a few guiding principles that usually work well, but not always.

    – We pride ourselves, in the criminal-law arena, on the principle that we’d rather see ten guilty men go free rather than jail one innocent man. That’s an admirable and liberty-favoring principle, until we watch the OJ Simpson trial.

    – In the civil arena, we hold to a similar principle that the courts are an available form of redress for all. This is pursuant to Constitutional precepts, as well as the feeling that, if we do not wish to see people pursuing their own justice outside of our justice system, we need to ensure that everyone has access to that system. (You can’t really fault vigilante justice if you don’t provide for societal justice.) This principle serves us well, until we encounter the “vexatious litigant.”

    We are very wary of ever denying access to the courts to someone who claims a legally-addressable injury, and we take that to extremes sometimes in protecting that access. Way back when I first clerked for a judge, I was assigned as the handler for one particular “vexatious litigant”. That was the legal term per our statutes – the District Court judges had to vote to confer that status on anyone, and it wasn’t ever conferred lightly. My assignee had initiated more than 100 lawsuits – all dismissed at some point as groundless – against everyone that ever disturbed her – many sued multiple times for the same conduct – and the judges had gone to the state legislature and convinced them to pass the “vexatious litigant” bill mostly for this woman.

    Even with her extreme behavior, we still couldn’t outright deny her access to the court. When she wanted to start a new lawsuit, she had to bring it in, and I would have it reviewed by a selection of non-connected local lawyers to see if they could find even a small nugget of merit in it. Even if they all thought that it would be dismissed rather quickly, if she could demonstrate a bare colorable claim of injury, we had to let her proceed.

    But (and here’s where most of the hope lies when dealing with such people) Rule 11 of the Rules of Civil Procedure (adopted by most jurisdictions) contains the following:

    (b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

    (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

    (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

    (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

    (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

    (c) Sanctions.

    (1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.

    If a litigant brings unsupported claims, they can be ordered to pay the costs and fees of the winning party. It’s tough to get a judge to impose such a sanction – but it can effectively cut someone off from the courts if they have had such an order and have not paid. (Of course, you don’t often actually collect the money from the types of people who become vexatious litigants, but at least it slows down new lawsuits from them.)

    So long as we value keeping the courts accessible to all, we’re going to have frivolous, vexatious, harassing lawsuits, though. Like the OJ example, it’s the price we pay for our principles.

  • neonsnake

    Glad I wasn’t misrepresenting you

    You didn’t 😉

    And I believe I was clear in my statement – it depends how it was handled. Others, less prone to sticking up for themselves than me, would handle it differently, I assume. And if they were decent about it, I’d accept their reasoning. If they weren’t…well, freedom of association has the potential for consequences, otherwise it might as well be a government-backed regulation.

    They have the right to refuse service, and I have the right to tell people why they refused service. If I don’t have that right, then it’s very onesided, and government-enforced.

    And if they suffer commercially because of that, then that’s how it should be.

    But – some people may increase their patronage of that shop, because they refused my kind service, and that’s also fine.

    The only time it’s not fine, is if I start to apply to the government to shut them down.

  • Fraser Orr

    @neonsnake
    I’m not perfect, for sure. I can be a bit shitty.

    Me too.

    On the other hand, I’ve been put into hospital a couple of times by those people who didn’t agree with me acting in a manner not of their liking, so y’know.

    That is terrible. But it is also obviously a completely different thing than refusing service. I think it is a terrible mistake to mix up real actual violence with speech we don’t like, or association decisions we don’t like. Speech is not violence, chosing to not deal with someone is not violence. This might be obvious to pensive people like yourself, but one need only watch the news for ten minutes to see that it is far from obvious to many scary powerful people.

    And I never said I’d involve the government.

    Ah, well then I must have misunderstood. Mockery of foolish people, including bakers who are excessively concerned with the marital relations of their customers may well deserve all the mockery you can muster. (Though FWIW, in my experience it is better to leave people alone in their narrow little worlds. Narrow minds are rarely flexible minds.)

  • Fraser Orr

    @bobby b, thanks for the interesting comment on vexatious litigants. Perhaps part of the problem is that the sanctions are insufficient. To your point the legal counsel of these litigants have a duty as officers of the court to take the law seriously enough to filter out that nonsense. So perhaps, were the sanctions more burdensome (for example, in the most egregious cases make the lawyer himself/herself act as surety for any costs incurred by the defendant in such cases as the plaintiff cannot pay), might make a difference.

    I certainly understand that there is a need for the courts to provide access to all, but in practice I’m not sure how much that is even true. It is a plain fact that lawsuits are extremely expensive. Often life-destroyingly so, as we have seen recently in Washington with those unfortunate souls caught between the President and those who would tear him down.

    I suppose this is in place in a limited manner in the case of ambulance chaser lawyers who have to weigh the risk of expending resources against the likelihood of settlement. But of course, as you know, there is a low hanging fruit settlement where the cost to get to summary judgement might well be paid irrespective of the merits. What is that? 40% of $50k. That is some nice earnings for filing a few pieces of paper.

    I think most lawyers are pretty decent people. I have worked with many over the years. But there is definitely a class of lawyers about which you might well ask whether a statute that relies on their ethical behavior, that relies on them putting the greater good of the state, the courts and the law before their own pecuniary gain, might well be a pretty dubious proposition.

  • bobby b

    Fraser, it’s funny that the general consensus of who is driving excess litigation is the small “ambulance-chaser.” In my experience, that’s not the case.

    I worked both sides of the fence during my time – plaintiff and defense – and the bane of my existence was the big-firm, white-shoe lawyers with the huge clients, who always had 300 junior lawyers sitting around desperate to fill in their billing slips, and who thus had great incentive to file motion after motion after thick, well-appendicized motion, to fight everything to the bitter end, and to file the lawsuits and motions with the barest of legal foundation.

    These are the people who almost managed to tank the Rule 11 process shortly after it was introduced, because it made for a whole new set of motions to which they could assign a few junior lawyers. For a while, they would accompany every single motion with a Rule 11 Motion for Sanctions, on the theory that they could use the new rule to overturn the American System (i.e., we make each party pay their own way, while Europeans make the losers pay.) Instead of a sanction for egregious misconduct, they wanted it to become “loser pays”, even when a lawsuit that ultimately lost had legal merit.

    Judges got mad at this, and so now it’s hard to get Rule 11 sanctions granted.

    Ok, now I’m ranting . . .

  • neonsnake

    Speech is not violence, chosing to not deal with someone is not violence.

    That’s why the context around how it was handled by the baker is so important.

    My understanding of the US case is that the baker offered other cakes, biscuits etc – just not the actual cake itself. I may be wrong, but I’m also under the impression that he thought hard about it before saying no? I may have read that somewhere, I’m not sure.

    Personally, I take that to mean he had no problems with the two guys themselves – just the endorsing gay marriage part (I see a difference between “having no problem” and being asked to “actively endorse.”)

    I’d be absolutely fine with that, and would continue happily to patronise the shop with zero problem.

    If, on the other hand, hypothetically, the baker had been an asshole about it – at that point, I’d feel justified in pushing back.

    In the Northern Ireland case, I believe that the baker was again asked to bake a cake actively endorsing gay marriage. I don’t know how hostile, or kindly, they were about the refusal. Assuming they were kind about it, then again – no problem. If not – well, throw it to the marketplace of ideas and let the chips fall where they may.

    Neither should have been taken to court, though.

  • The ‘vexatious litigant’ problem is as old as history – or at least as old as classical Greece. The word ‘sycophant’ originally meant just such a vexatious litigant, bringing worthless cases against people who were thought wealthy enough to pay them and busy enough that they would pay them rather than take time in court.

    An example appears in Xenophon. Socrates advises the persecuted man to cultivate a lawyer Socrates knows “able but poor, because he disdains the easy roads to wealth”. In what might seem to us a rather ‘gentlemanly’ and indirect manner (but that may instead be telling us something about a less cash-oriented society than our modern one) the victim takes respectful notice of the lawyer who then discovers criminal acts of the sycophant cabal and drags them into court (whereupon they accuse him of what the modern sense of ‘sycophant’ means).

    My thanks to bobby b for the interesting info on one way of addressing it today. The attack on freedom can be an all-out assault or use salami-slice tactic to wear us down; vexatious litigation is one of the latter’s resources.

  • Gavin Longmuir

    Niall K: “The word ‘sycophant’ originally meant just such a vexatious litigant …”

    Mr. (I presume Dr.?) Kilmartin — the extent of your erudition never ceases to amaze! Once again, I have to doff my metaphorical hat to a Samizdata contributor.

  • Fraser Orr

    @Niall Kilmartin
    My thanks to bobby b for the interesting info on one way of addressing it today.

    Seconded. As ever your insight is fascinating Bobby. If you are ever in Chicago area, look me up, I’ll buy you a beer or two.

    However, based on what you are saying the problem seems to be that the cost is not being borne by the person who is causing the cost. I just wonder if part of the solution is to have a loser pays on a micro scale, which is to say any motion brought by a lawyer that no reasonable person could consider colorable could result in a charge to the lawyer for the cost both on the court and on opposing counsel and his client, including things like the cost of time defending the foolish motion. Ideally that would be a kind of ethics violation so that the cost could not legally be passed on to the client. As a way to force the lawyers to act in the manner you described — as officers of the court and consequently be professional obligated to act in good faith.

    Obvously lawyers can and should aggressively advocate for their clients, however, there are plainly ethical limits to this — they cannot, for example, suggest ways in which the client can successfully lie to the police, or disguise evidence, or buy off witnesses. Surely part of those ethical limits should include not “vexing” the court with pointless motions to exhaust the resources of the opposing counsel?

  • Fraser Orr

    @neonsnake
    If, on the other hand, hypothetically, the baker had been an asshole about it – at that point, I’d feel justified in pushing back.

    Sure, but “pushing back” covers a pretty wide field of responses. Storming out and calling the owner an asshole — perfectly legitimate. Organizing a boycott based on fraudulent claims — not legitimate. Writing a letter to the editor — perfectly legitimate, blocking the street outside the shop with a protest — not legitimate. Giving a bad review on yelp — perfectly legitimate. Giving a review calling the proprietor a Nazi — not legitimate. Standing on the street outside giving out leaflets — perfectly legitimate. Publishing the name and school of the owner’s kids, or his home address, or standing outside his house with a megaphone protesting — not legitimate.

    And moving on – suing the guy, or trying to have him criminally prosecuted, or using the zoning laws or business licensing laws or perhaps the food safety laws to shut his business down, or blackmail him into changing his mind — not only not legitimate, but the grossest kind of corruption.

    Speech in protest is perfectly fine, but speech can bleed into other things including fraud and nuisance and that old British offence “disturbing the peace” which are far from legitimate.

    To give an in the news example, you may protest outside an ICE facility about the treatment of detainees, however, doxing ICE agents or firebombing an ICE facility? Not so much.

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