Sunday, September 25, 2016

Platforms, Free Speech, and the Boundaries of the Pale: A Methodological Remark

Sometimes people say things in public, and other people think those are terrible things to say, and so they complain, or protest, or distance themselves, or decline to invite that speaker for something else, or apologize on their behalves. And then, as we all know, sometimes yet other people get real offended by those first other people for a perceived threat to the free expression of ideas.

This is a super common pattern. (A pretty substantial amount of public hand-wringing about Millenials falls into this category.) Philosophers will recognize a recent high-profile controversy of this form.

The argument against step two above—the argument that says you shouldn't protest or apologize or whatever—goes like this: free speech is important, even when (especially when!) it is uncomfortable and challenges your preconceptions. It would be both unjust and intellectually foolhardy to censor the expression of some ideas just because some people find them distasteful or threatening.

The argument on the other side goes like this: words matter, and the expression of some ideas is actively harmful; we shouldn't encourage or enable people to harm others, especially when those harmed are members of already-marginalized groups. No one is entitled to these particular platforms, and by the way protest speech is free speech too.

In most actual instances of the schema I come across, my sympathies are largely with the protesters. But there's something a bit funny about the level of generality at which the argument tends to take place. The details of the objectionable presented content make a pretty big difference.

For example, the principles often articulated against protesting, if taken literally, would generalize to defences of views that I think most of us would recognize as clearly beyond the pale. Like, if the keynote address at the American Society for Conservative Philosophers (a name I just made up but maybe it's real, it doesn't matter, it's a fictional case) were given by a white supremacist calling explicitly for, say, stripping the voting rights of Americans of colour, everybody would be making a tremendous fuss about it and they'd obviously be right. Maybe a few individuals would crawl out of the woodwork and say "we must be willing to encounter ideas that challenge our preconceptions" or "these ideas about racial purity have been around a long time don't you think there might be something to them?" or "are conservatives not allowed to talk about social and political questions about race?", but I think most of the people who say the parallel things about real-life cases wouldn't be much impressed. This example shows that the principles cited are not at all plausible in full generality.

I think something similar is also true of the other side. Suppose a local farmer is invited to give a commencement speech at a high school in their community, and students protest and demand that they be un-invited, on the grounds that such farming amounts to a morally indefensible program of animal suffering. I would have a certain amount of sympathy with these students. (I think most animal farming does amount to morally indefensible animal suffering.) But I think I'd ultimately be persuaded by the line that this isn't very good grounds for protesting the speech, even if the students make the case that the speech itself would cause harm.

One might try to locate the difference between these cases in the moral seriousness of the harm, or the amount of offence caused, but I'm inclined to look to more contingent social matters. Really blatant white supremacy is, in North American academic circles, rare enough and marginalized enough, not merely to offend, but to shock. It's not one of society's live options. It is beyond the pale. This isn't an intrinsic feature of the content of the view—it's a relational status to society more broadly. By contrast, the idea that it's fine to cause massive suffering in non-human animals for small human benefits is widely accepted. If one merely levelled the horrified stare (the moral cousin of the less incendiary incredulous stare) at everyone who thought it was OK to raise animals for food, one would only serve to alienate oneself from society at large. People who think farming is fine need to be convinced; people who think America is only for white people should be shunned.

The lines move over time, as some questions become settled. At the margins, there will be controversy, even among people who agree that a stance is morally objectionable, about whether it is beyond the pale. I think that many questions about the moral status of homosexuality are at present right around the margins. The idea that homosexuality constitutes a defect of some kind is rightly and rapidly becoming much more of a fringe position, but it is still widely enough held, by powerful enough people, such that many people will still be inclined to treat it as a view worthy of respectful disagreement, rather than the horrified stare.

The debates that ensue tend to frame the issue as one about free speech versus harmful attitudes towards marginalized groups. That's partly right, but I think that quite a lot of what's going on is best conceptualized as a fight about where to set the boundaries. It's a border skirmish in the culture war. If the progressives keep winning, this will all look very different in retrospect. Hopefully in twenty years we will look back with some shock at the idea that people were arguing in 2016 about whether it's OK to descibe homosexuality as a kind of disability. Maybe by 2036 the argument will be about whether we need to take seriously the idea that animal farming is morally permissible.

Sunday, May 22, 2016

Presumption of Innocence

The Universal Declaration of Human Rights has it that "everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence." This is a kind of legal protection against criminal conviction—you cannot be declared by the state to be guilty of a crime, or punished for it, unless your guilt has been proven.

The presumption of innocence is rightly considered a pillar of civilised society. But people have a tendency to over-apply it in irrelevant cases. The presumption of your innocence means that the state can't punish you for a crime unless it proves that you committed it. That's it. It has nothing to do with how one individual should treat or think about another, or whether an organisation should develop or continue a relationship with an accused individual. The presumption of innocence doesn't protect you from being unfriended on facebook, or shunned at conferences, or widely thought by other people to be a criminal. It just protects from being criminally convicted.

The weird world of academic philosophy this week is digesting an article that includes serious allegations of sexual harassment by Yale professor Thomas Pogge against philosophy students. While most of the people whose reactions I'm reading are expressing disgust at Pogge's behaviour and gratitude for Fernanda Lopez Aguilar, the woman who has come forward with the story, there are some (including Pogge himself, as well as some of the People who Leave Comments on Blogs) who caution the broader world from jumping to conclusions, on grounds related to the presumption of innocence. Pogge's statement discusses "trial by internet"—but since "the internet" is not contemplating the use of state power against his liberty, whatever metaphorical sense in which he is undergoing a "trial" is not one where he enjoys the presumption of innocence.

The admonition not to pass judgement about the allegations is simply the admonition to ignore them. "Don't believe anything unless it's been proven in a court of law." But this is just a ludicrous epistemic standard. Do you care whether powerful men in academic philosophy are using their stature to coerce students into compromising sexual situations? Then you should be interested in credible testimony to the effect that this one has been. Don't be tempted by the fallacious inference from it hasn't been proven in court to you have no way to tell whether it's true. (This, incidentally, is also why it makes sense for universities to have sexual assault policies.)

Moreover, it's not in general "jumping to conclusions" to accept someone's word. We learn from other people about what happened to them all the time. Talk of courtroom standards of evidence can make us forget the fact, but in general, we can get knowledge from other people. There's a temptation to think "it's just a he-said–she-said situation, so there's no way to know what really happened". While there are of course some cases that are like that, it's not in general true that any time testimony is disputed it can't be known to be true. Sometimes someone tells me something, and I thereby come to know it, even though someone else denies it. This is especially likely when the thing told is generally plausible, and fits well with other things I know, when there's no plausible explanation about why the testifier would say it if it weren't true, and the denial is both weak and self-serving. All these features seem to me to be present in the current case (and in many similar cases).

I believe Aguilar's allegations. They are serious and credible. They cohere with other stories many of us have heard about Pogge. The asinine hypothesis that she'd make them up out of spite, or for some kind of personal benefit, is the risible product of a preposterously misogynistic imagination. I think it'd be an epistemic error not to believe them—and a moral error too. It would be derelict for us as a community to ignore that which it's reasonable for us to believe—indeed, what which I think we know.

Wednesday, May 11, 2016

What is proof beyond a reasonable doubt?

As I finish up a few long-standing projects on knowledge (check out my draft monograph!) I'm hoping to start exploring a few new-for-me areas. In recent years my philosophical discussions on this blog have been relatively esoteric, trying out a new objection to so-and-so's third paper on such-and-such; when I was in grad school I used it as an early thinking-out-loud forum about more basic stuff. If I can swallow my pride enough, I may return to that form over the next several months. One area I'm quite ignorant and naive—but also curious—about is law. In particular, I'm curious about how legal concepts like evidence and testimony interact with epistemological concepts like evidence and testimony. I'm a complete novice in this field, so if I'm overlooking things that seem totally obvious to any readers, I'd be grateful to have it pointed out, especially if it comes along with reading advice.

One of my entry-points into the literature here is my UBC colleague John Woods's book Is Legal Reasoning Rational: An Introduction to the Epistemology of Law. (I'm maybe 40% of the way through a first read of it now.) Here's one thing I've found interesting so far. Woods writes, on p. 103:
Spike cannot be convicted unless a jury unanimously finds that his guilt has been proved beyond a reasonable doubt. Certainty beyond a reasonable doubt is sometimes said to be moral certainty. Under either name, as Gifis writes, it is a conviction based on persuasive reasons and excluding doubts that a contrary conclusion can exist. This is much too strong a formulation. There is plenty of case law that allows for conviction even in the face of a perfectly reasonable case to the contrary, recognized as such by the jury. On an alternative formulation of the standard. A juror is said to be morally certain of a fact when he or she would act in reliance upon its truth in matters of greatest importance to himself or herself. Although better, this appears to omit the essential requirement of criminal proof that this readiness to act, this moral certainty, be grounded in the juror's belief that the burden of criminal proof has been met. In other words, it seems not to be sufficient for criminal conviction that a juror be in a state of moral certainty of the accused's guilt. It also matters how he came to be in that state. 
So we have these notions:

  • Proof beyond a reasonable doubt
  • Certainty beyond a reasonable doubt
  • A juror's being in a state of moral certainty
Woods slides between the first two without comment. Maybe the thought is that there is this tight relationship: proofs establish certainty. (In logic or mathematics, this seems plausible—if I have a proof of something, then it is certain for me.) But as Woods points out, it's another matter whether my psychology reflects this certainty. I might have a proof but doubt anyway; or I might be irrationally certain, even absent a proof.

I wish Woods had explained further what he had in mind when he discusses appropriate conviction in the face of 'a perfectly reasonable case to the contrary'. (I am not sure who Gifis is—I don't see a citation.) Can there be 'perfectly reasonable' cases that have been proven not to be the case? If 'provability beyond a reasonable doubt' is closed under deduction, then it seems like there must be. (If it's been proven beyond a reasonable doubt that Jones committed the crime, then it's provable beyond a reasonable doubt that Jones wasn't framed.)

The alternative formulation mentioned seems to target the psychological state of being in a state of moral certainty. This feels at least analogous, maybe more, to the epistemological notion of belief or commitment. Some epistemologists, like Jennifer Nagel and Brian Weatherson, have emphasized that whether one is in this state depends (causally or constitutively, respectively) on the practical situation—when the stakes are high, one is less likely to believe. Maybe moral certainty is something like, being such that one would count as believing even in very high stakes cases. And although this state isn't, as Woods points out, sufficient for appropriate conviction, a normative connection seems plausible: one should only be in this state if one has a proof of corresponding strength. Don't be sure unless it's proven.

It's hard for me not to think in terms of knowledge. One contextualist way of mapping these thoughts would have it that, given a high standard for knowledge, all and only that which is proven beyond a reasonable doubt is 'known', and jurors should vote to convict if and only if they know the defendant guilty. I think this could make sense of these issues—although it'll probably be too simple in other respects, such as the restriction of admissible evidence. (Some things jurors know, they're not supposed to consider. (Or maybe a weird standard could count them as unknown? Something to think about.))

Anyway, I know I'm being really naive here, but I'd be interested in digging in a little bit, if anyone has ideas or reading suggestions.

Sunday, March 27, 2016

Stifling Academic Freedom: Who Knows?

Carrie Jenkins and I have written a short piece on academic freedom. Its focus is on a current governance scandal at UBC, but I think it may be of broader interest about universities, academic freedom, and standpoint epistemology. An excerpt:

Like many of our colleagues at UBC, we’re concerned about academic freedom. UBC’s governance crisis has contributed to a culture of fear. This week, Philip Steenkamp, UBC’s Vice President of External Affairs, asserted that we’re wrong to be concerned. “Categorically,” he told the CBC, “there is no such culture”. ... 
But how would a Vice President of External Affairs know whether faculty members feel stifled? ... 
As is well-known to theorists of knowledge, one’s position in a power structure can affect one’s ability to know what’s going on. Just think of the sexist office culture of the 1960s. That sexism, undeniable in retrospect, was obscure to the men in charge. Don Draper couldn’t see what was obvious to Peggy Olson. This kind of ignorance is often recalcitrant: the privileged are motivated not to see certain things. As philosopher Charles Mills put it: “imagine an ignorance that fights back.”

Thursday, February 18, 2016

Basing Actions on Knowledge at the Supreme Court

People sometimes complain about philosophy for its reliance on esoteric thought experiments. "Suppose someone wants to kill someone else, but falsely believes that she's allergic to a certain medicine that will actually help her, but he was ignoring certain defeaters his belief, but he wouldn't have been doing so if he had been raised by better epistemic role models, etc." No doubt there is a grain of truth behind the stereotype, and the criticism of it. But weird cases do matter—both because we're sometimes after necessary truths which should cover all cases, and because the world is a big and weird case, and sometimes weird cases are actual.

If you don't know it already, I am pleased to present to you the absolutely bizarre case of Heffernan v. City of Paterson, currently before the Supreme Court of the United States. If an undergrad had made it up as a counterexample to some principle in a philosophy course, I'd've raised my eyebrows and chuckled quietly at its cleverness.

Monday, January 25, 2016

A few more thoughts on university sexual assault policies

This post is part of a virtual teach-in in commemoration of UBC Sexual Assault Awareness month. See the #UBCSAAM hastag on twitter.

I suggested last week that often there will be grounds for institutional action in response to allegations of sexual assault, even if no criminal charges are filed or a criminal conviction cannot be reached.

One common response is that a policy that permits action in response to an assault that can't be proven in court is unfair to the alleged perpetrator. (I received several thoughts along these lines from members of the public at large in response to my op-ed.) I think this is a mistake—one that may be motivated by a failure to take seriously my suggestion that we sometimes have genuine knowledge, even when we can't prove something in court. I do not advocate institutional action in the absence of evidence or knowledge; I don't think, for example, that universities should expel students merely because they suspect them of being rapists. My proposal is that we should act on our knowledge. If the university knows that someone is attacking other students, it should take action to protect them. People sometimes forget that it's possible to have such knowledge without criminal trials, but it is obviously true. (I know that I walked my dog yesterday morning, even though I'd probably have a pretty difficult time proving it in court.) This was the core thought behind my Vancouver Sun op-ed—just because something is a criminal offence doesn't mean that law enforcement is the only entity that can or should be involved.

I think it's helpful to compare other criminal actions—sexual assault activates some weird patterns of intuitions. Suppose a student, Shen, has a habit of punching other students in the face. I'm assigning my students to work together in small groups on an assignment, and Paksima expresses a desire not to work with Shen, because she's afraid that he'll punch her in the face again. I've never seen Shen punch anybody in the face—and when I ask him about Paksima's broken nose, he says he doesn't know how she got it, but speculates that maybe she broke her own nose to get him into trouble.

Depending on the details of the case, I think I might, under these circumstances, be able to know what has happened. While it is literally a case of 'he said–she said', there are possible such cases where one can know who is being honest and who is lying. But let's suppose for the purpose of argument that we're looking at a version of the case where I can't have genuine knowledge about how Paksima's nose ended up broken. Maybe for some reason the possibility that it's an elaborate and costly framing job is really live. I still face the question, what should I do about this situation? Paksima is asking not to be required to work with Shen, and she's citing grounds of her own personal safety.

I don't think anyone would take very seriously the idea that this should be my response: "Paksima, punching people in the face is a criminal matter, not an academic one. You should take your concerns to the RCMP; if and when Shen is convicted of criminal assault, I'll take the allegation into consideration, but unless and until that happens, I'm going to assume that nothing improper has happened. To do otherwise wouldn't be fair to Shen."

This hypothetical response is ludicrously callous; but it is exactly analogous to a widespread idea about what universities should do about sexual assault. If you think I shouldn't ignore unproven allegations about getting punched in the face, then it's hard for me to see why you shouldn't think the same about unproven allegations about sexual assault.

None of this is to deny that there are difficult questions to ask about what procedures should govern just what steps should be taken, given particular bodies of evidence. Returning to the case of sexual assault, I do think that if a university knows that a student is sexually assaulting other students, he should be expelled. But I don't think it's at all a trivial matter to put institutional frameworks in place to investigate allegations and establish appropriate responses. That is to say, I don't think it's an easy matter to figure out what appropriate sexual assault policies are.

I also want to emphasize that punitive actions are only one part of what should be covered in a sexual assault policy. A sexual assault policy that focuses only on what standards of proof would justify what kind of punishment does so at the neglect of the victims it is meant to protect. Victims of assault may need many things other than a procedure that might eventually punish their attackers. And many of the things universities can do to support alleged victims are non-punitive, and so do not require at all a high standard of proof. (I don't punish Shen by letting Paksima work in a different group, or referring her to medical services, based only on her allegation.) So another part of a university sexual assault policy—one even further disconnected from questions about law enforcement—should set out such non-punitive guidelines for how to care for alleged victims. A few such policies that come to mind are flexibility about classroom assignments, an ability to make changes to living arrangements, and access to counselling. No doubt there are many more things to add to this list.

Sunday, January 24, 2016

Degrading Material at the UBC Bookstore (1982 edition)

The struggle is slow and hard, and progress can't always be seen as it occurs. But sometimes history provides helpful context. I have been reading this week about a controversy in the 1980s about whether the UBC Bookstore should continue to sell pornography. To my contemporary sensibilities, that there should ever have been controversy about whether the UBC Bookstore should sell pornography is barely imaginable.

Lance Read, an Education student at UBC in 1982, wrote this letter to UBC's student newspaper, the Ubyssey:
I would like to see our bookstore, an official arm of the university, discontinue the sale of printed matter that is socially offensive, degrading and unnecessary in an enlightened world. To my knowledge there are only two publications for sale in the UBC bookstore which concentrate on such degradation. Penthouse and Playboy magazines publish photographs which focus on posing women in submissive and degrading positions. Those of us who recognize the natural and valuable relationship that women and men share as equals struggling to retain respect for all social groups, will no longer condone through silence, such degradation. I therefore ask our bookstore to stop the sale of Penthouse and Playboy. I feel that this is justifiable censorship. I suggest as an alternative that the bookstore purchase reprints of socially inoffensive articles from both publications and make them available for resale.
You can find this letter printed on p. 10 of the Nov 19, 1982 edition here. I am amazed that the UBC bookstore was ever selling pornographic magazines in the 1980s—Read's position seems incredibly obvious in retrospect. But even more astounding is the response that one John Hedgecock, UBC Bookstore Manager, seems to have offered to Mr. Read. (I have been unable to locate this response in the online archives, but Lance Read has sent me his own copy.)
As a general rule the UBC bookstore has a non-censorship policy, especially in regards to material ordinarily available in public stores in Canada. The two magazines in question meet this criteria. Other perhaps more controversial material is handled on a case by case basis.
I would suggest that points made in Mr. Read's letter are more a matter of personal opinion. To paraphrase Shakespeare's 'Beauty is bought by judgement of the eye'—lets us say—art is in the eye of the beholder. Nude photographic art is art.
As a note of interest, I know personally that there are usually a few copies of these magazines available in the locker room of the Thunderbird rugby team on which Mr. Read plays.
(My emphasis.) The dismissive sneer comes through loud and clear in the prose. As if the idea of this material's being inappropriate was completely beyond the pale.

Although I didn't find this letter online, I did find clear corroboration that Hedgecock was unsympathetic to Read's request—which echoed a call that Education instructor Josephine Evans had been making for some time—see e.g. p. 1 of the October 10 1982 Ubessey. I am not sure what happened to this controversy in the end. The latest reference I found was a March 1983 discussion of a petition to the UBC board of governors to ban pornographic material from the UBC bookstore (p. 1 here). I don't know whether the ban was put in place, but I can report that I have never seen any pornography in the UBC bookstore.

So, progress!

Which isn't to say there's not still work to be done. Here's a photo Carrie Jenkins took at the UBC bookstore last fall (used with her permission).
That's How to Be a Man: A Handbook of Advice, Inspiration, and Occasional Drinking, and Red Green's Beginner's Guide to Women: For Men Who Don't Read Instructions. So yes, we've got the activity of manhood and women as objects, at the UBC bookstore, in 2015. See also this classy item, photographed by Moira Wyton‎ at the UBC bookstore, also in 2015 (used with permission):

Among its many objectionable qualities is a hilarious lighthearted threat of sexual assault.

So I guess maybe they haven't quite stopped selling "printed matter that is socially offensive, degrading and unnecessary in an enlightened world", but at least the bar seems to be moving in the right direction.

Maybe in 2050 the UBC community will look back and shake their heads, marvelling at the idea that anybody ever thought this was appropriate material for a university bookstore. A guy can dream.