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Standing in Place in the Name of Progress
03/07/2003

I see that Erin O'Connor has linked back to a post on her site on which I engaged in a much too lengthy debate about the Harvard snow phallus. In following the link, I notice that my main adversary in that discussion, Angus McHaggis, offered a parting shot that I had not seen, having not returned (which I find to be the only way to restrain my pen, so to speak).

The response is a typical "final word" for people who take such positions in that it simply restates both grand, but unsubstantiated, assertions and mischaracterizations of the opposing argument, even though they've been continually pointed out as such. One last time, for the record, let me address Angus's handy summation sentence by sentence:

I understand that in making outrage the basis for your reasoning, you've produced a series of hopelessly muddled arguments.

Note that arguing from prudence is instantly equated to arguing from "outrage." For any who might confuse the two in this specific case, I suggest that "outrage" states that something must be wrong irregardless of consideration, while "prudence" approaches an initial reaction with consideration of all factors involved. I think reasonable readers will see that my argumentation was of the latter nature.

You argue that people have a "right" not to be offended -- even though no such "right" can exist in a free society.

Here, Angus extrapolates a qualified statement ("so nakedly offensive") to mean any offense. Obviously offense is subjective. If mine had, in actuality, been the broader statement, perhaps Angus's rebuttal would not be so dogmatically idealistic. Nonetheless, I would have suggested that he provide some basis for the assertion.

You argue that constitutional law should regard acts of censorship as "free speech" -- even though that makes a mockery of the Bill of Rights.

Actually, I stated again and again (and again) that my argument had nothing whatsoever to do with either the Constitution nor the law. My suggested handling of the matter lies entirely outside of government structure. This touches on a point about underlying assumptions and Angus's refusal to allow them to enter the discussion that I'll address in a moment.

In making these "arguments," you deny meaningful distinctions between expression and action;

No, I merely continued to request that Angus define those "meaningful distinctions," suggesting that, as a matter of broad definition action is inherently expressive and expression is inherently active.

you reject content-neutrality as an important free speech criterion;

This is an outright fabrication.

and ultimately you propose that your personal moral compass should trump all laws and all legal precedent.

First, I repeatedly appealed to "public standards," not my "personal moral compass." Second, I clarified several times that I was merely arguing my position, an action that is meaningless if it is not meant to suggest where I believe those public standards should fall.

This is, above all, a remarkable display of egocentricity.

And, there it is, the arrogant ad hominem. Never mind that I was mainly interested in addressing judgment of where respect for others and public propriety ought to intersect with the prurient drives of adolescents. You see, questioning the right of people to do whatever the hell their impulses dictate ultimately suggests that my counter-speech is an expression of my own inflated sense of self worth. How convenient for Angus that I'm such a stereotype. It is actually Angus's final word that is absolutely typical — from the canned arguments against strawmen to the self-righteous stumping.

In fact, Angus's entire argument was absolutely typical in that he refused to address the underlying assumptions that dictated each of our arguments. No, he insists that anything taking the form of a sculpture is artwork and/or a "political expression" and is, therefore, inviolable. That which has been defined by law is unquestionable, and that which has not been explicitly addressed falls in Angus's favor.

In the midst of it, with more statements flying than I had time to address, I didn't manage to formulate a succinct vision of where I'd hoped to bring the argument. In essence, concepts such as "speech" and "action" fall under the umbrella of "expression." Some expressions are explicitly protected (e.g., flag burning); some are explicitly forbidden (e.g., assault). The rest are left to those outside of government to decide, using other aspects of the law, such as property rights, as guidelines. In this case, which seems to be ideally situated between each competing claim to bring out arguments from all sides, I argued that the expression in question was offensive to the point of falling beyond boundaries of protection within the public sphere (i.e., pornographic). Furthermore, the substance used for the expression, snow, was inherently transient and un-owned, meaning that one could not appeal to vandalism to substantiate claims of censorship. However, because the sculpture was placed on Harvard property, Harvard guidelines for the treatment of public displays would apply. In the absence of explicit rules governing the treatment of snow, one student has as much right, if willing, to flatten snow as to raise it in some meaningful way. We needn't speculate about Harvard's position on this because the women who destroyed the sculpture have not, as far as I know, been officially reprimanded. (Angus would argue that they should have been; I argued that they should not; but neither of us is a legitimate controlling authority.)

As a somewhat similar anecdote that I wish I'd thought to bring up in the heat of discussion, I recall a particular fence at Carnegie Mellon University. The fence was situated in such a way that the majority of people on campus were likely to walk by it at some point during the course of the day. Tradition had developed such that groups could "claim" the fence and paint it with statements or announcements (I imagine there were some loose strictures around acceptable messages). It was widely understood that any given group held the fence as long as it had a member nearby (day and night; inside frigid tents was valid, I can attest). If a guard were to slip away for even a few minutes, another group could take possession of the medium.

I bring this up to show an instance in which a public forum for "expression" may be deliberately covered up (painted over, in this case) without it being censorship. I still don't recall whether the rules for the fence's use were in any way officially dictated by the university, but they needn't have been as long as the tacit etiquette was observed and, beyond that, would likely have merely been a codification of an unwritten code.

The irony of the snow phallus controversy is that it is unlikely that it would have been controversial at all if it had been university employees who had "censored" the snow phallus, as they most surely would have done. If, as with the CMU fence, one of the sculptors had stayed behind in an effort to preserve the creation, then it would have been expected of the would-be destroyers to seek official sanction for their action. That might have raised questions worthy of all of this argument.

Posted by Justin Katz @ 01:16 PM EST