Talking Right and Doing Wrong

Geoffrey Nunberg has written an enthralling but depressing book called Talking Right: How Conservatives Turned Liberalism into a Tax-Raising, Latte-Drinking, Sushi-Eating, Volvo-Driving, New York Times-Reading, Body-Piercing, Hollywood-Loving, Left-Wing Freak Show. He does a terrific job of describing the problem, though Rodney Dangerfield could have done it almost as well with four words: We (liberals) don’t get no respect.

When I was a girl, my mother taught me that the way to insure fairness in dividing a scarce or disputed resource was for one person to cut the cake (for instance) and the other to choose the first piece. Experts in game theory have refined this procedure so that it works equally well for multiple players. But in dogmatic disputes, the trick is to be able to cut the cake and choose the first piece. That is, first you divide the universe into (say) Coke and Pepsi drinkers, assigning to the former all the most desirable traits, and to the latter everything else, and then you define yourself and your buddies as Coke drinkers. It’s not that different from the way sixth-graders do things: boys are big and tough and do fun things, and girls are whiny and weak and have cooties. (Or, for that matter, girls are smart and sensible and neat, and boys are nasty and gross and stupid and have cooties.) Which is exactly what the Right in the United States has done, Nunberg shows us. The constellation of preferences, behaviors, and beliefs they have adopted for themselves don’t have much of any logical interconnection; but they can be and have been sold to the American public as (a) good things, and (b) what the Right espouses. Which leaves all the other stuff (an even more disconnected farrago of mannerisms and beliefs, such as those listed in the book’s subtitle, which have in common mainly that they can be made to appear bad things) for the liberals, who can thus be made to appear bad people. The fact that nobody could possibly be simultaneously as wily and weak and stupid and dangerous as the Right describes the liberals is utterly irrelevant to the marketing process.

Nunberg eventually says there isn’t much the Left can do about this situation, except wait for time to do its work and the pendulum to swing back, and in the meantime maybe jump on the really egregious occasions of Rightspeak quickly and hard, without wasting energy on the small stuff. Which is perhaps nothing but a sophisticated way of saying (as we often advised sixth-graders) “sticks and stones can break my bones but names will never hurt me.” That was nonsense in the sixth grade, and hasn’t improved since then. Names can hurt, very badly. (“Give a dog a bad name and you might as well shoot him,” as our grandparents used to say.) But objecting to Rightspeak puts us on the sinister side of “political correctness.”

So it is time to start defending political correctness. Ninety-nine times out of a hundred, when someone says he is about to say something politically incorrect (usually with a snigger) he means he is about to say something mean-spirited and both factually and morally insupportable. This is the same spirit in which bad drivers honk before going through a stop sign or a red light. It is a way of saying, “I know our mothers don’t like us talking this way, but playing the dozens is fun.” It’s hard to tell whether the fun lies primarily in defying maternal etiquette or in offending other people and risking a fight. Either way, you know you are dealing with someone who believes he has a divine right to act and talk like a jerk. “Political correctness” means not being a jerk. It is not cowardly or namby-pamby, or even un-masculine. It is, essentially, the Golden Rule, which presumes that other people have the same sensitivities and needs and rights that we do. But what do you do when dealing with someone who won’t accept that presumption? That is the problem Nunberg is really facing, and like the rest of us, he’s short on useful answers.

SNITCHES, RATS, AND MARTYRS

A major topic of discussion in law enforcement circles these days is the increasing public dislike of "snitches." (For the clearest possible example, see Who's a Rat.com) Rap music and t-shirts counsel the public "don't be a snitch." And witnesses are subjected to intimidation of the most vicious and dangerous kind as a result. "Nobody likes a tattle-tale," we are told, as we were once advised in first grade.

We are placed in a difficult conflict, because, on one hand, anyone who follows criminal prosecutions at all closely knows that prosecutors rely heavily on "confidential informants" whose background is, at best, no better than that of the defendants they help to convict, and whose incentive to inform usually has a lot more to do with promises of leniency than with civic-mindedness. And on the other hand, we have all heard horrifying tales of witnesses of crime being intimidated, assaulted, and even killed to keep them from testifying.

The conflict arises out of the fact that we are really looking at two different phenomena, which require two very different moral responses. The "confidential informant" is almost always a criminal himself, often a higher-ranking criminal than the defendants he helps to convict. That's how he comes by the information the prosecutors need. And the prosecutors have trouble acquiring the information by any other means because either the crime in question is a "victimless" one, usually a transaction between a willing buyer and a willing seller, or the organization that perpetrates the crime has really tight internal security (for instance, the code of omerta' for which the Cosa Nostra is famed.) The other reason the prosecutors have an incentive to get their information from criminal colleagues of the defendant is that such informants have a strong incentive to cooperate--immunity from or at least leniency in their own prosecutions. Which means in turn that the information they provide may or may not be accurate or complete. The incentive to inform is also an incentive to lie or invent. It is, above all, an incentive to give the prosecutors what they want. And the prosecutors wouldn't need the informant's information at all if they had any other way to get at it, so they can't cross-check its accuracy, by definition. So using "confidential informants" is morally and legally questionable, and being a CI is even more so.

"Snitches" exist at all levels of the criminal world, from the pettiest local mopes to the upper reaches of the Mafia. Their rewards range from an occasional twenty-dollar bill to immunity from prosecution for murder. The "Don't Be a Snitch" t-shirts may be effective at the low end, where the stakes and rewards are small. Probably they matter not at all to Joe Valachi and his successors.

But none of that has anything to do with the plight of the innocent civilian witness, the person who happens to be in the wrong place at the wrong time when a drug deal or an assault or a murder is going down. When I was in my first job out of law school, running a legal aid office in a fairly rough ethnic neighborhood, my secretary came to me one day to tell me that she and her husband had seen a murder the night before. "Does this mean I'm going to get in trouble?" she asked me. It took me a while to figure out what she was talking about. Was she going to be questioned by the police? she meant. Would they threaten her in some way if she didn't tell them what they wanted to hear? Could she be held as a material witness? And could she be threatened by the shooter or his friends? All I could recommend was that, if the police contacted her for questioning, she should call me immediately before telling them anything. That was thirty years ago. If anything, the plight of the innocent civilian witness has gotten a lot worse since then. The scholar will remind you that, in the original Greek and in Arabic, the word "martyr" means "witness." That is not an accidental link.

The fact is that nobody likes an innocent civilian witness. Cops and prosecutors don't like them because, from the point of view of the prosecutorial process, they're loose cannons. They have no incentive to testify, or to testify in any particular way, other than their own civic-mindedness. The legal system has nothing to offer them. It can, on occasion, threaten them (with being held as a material witness, or being subpoenaed and being held in contempt for refusing to testify.) A case dependent only on evidence from innocent civilian witnesses is generally regarded by prosecutors as unwinnable, no matter how strong that evidence may be.

Criminals don't like innocent civilian witnesses for pretty much the same reason--they can't be bought. They can, increasingly, be intimidated, and of course they can always be assaulted, their houses burned down, and worse. We are unlikely ever to know how effective these tactics are, since by definition their success means utter lack of public information. But most witness protection programs are not even available to innocent civilian witnesses, and anything short of a complete identity transplant is likely to be inadequate. If there is one thing the average resident of a high-crime neighborhood knows with absolute certainty, it is that the police cannot protect anyone.

So on one hand, the criminal justice system needs to get rid of its dependence on "confidential informants" in victimless-crime cases, and on the other hand, it needs to find ways to protect innocent civilian witnesses in violent crime cases. This is the only way law enforcement can rehabilitate its own questionable reputation in the communities it is supposed to be protecting.